On the 21^st day of June 2007, the judgment of the Court of Appeal given on 24/5/2007 in two appellate cases No 251 + 263/2001 was challenged by way of second appeal [cassation] in a statement in which the appellant requested allowing the challenge as to form and to allow the challenge on merits and remand the case to the court of appeal to render judgment by another panel; and on the same day the appellant filed an explanatory memorandum.

 

On 4/7/2007 the first respondent filed a statement of defence in which he requested dismissal of the challenge.

 

On 12/7/2007 the appellant filed a statement of reply.

 

On 22/7/2007 the respondent filed a memorandum of comments on the reply [rejoinder]. 

 

In the session of 20/7/2007 the challenge was brought before the Court in chambers and it saw apt for hearing and fixed a date for arguments.

 

In the session of 4/12/2007 the case was head before this Division as stated in the record of the session where each of the attorney for the appellant and the attorney for the respondent reiterated the contents of his memoranda.

 

And the Court adjourned for judgment for the session today.

THE COURT

After consideration of the papers, hearing the report which was recited by the Court rapporteur, the arguments and following deliberation;

 

Whereas the challenge has satisfied form

 

Whereas the facts, as set forth in the challenged judgment and the various papers, show that the first respondent commenced case No 216/1993 civil ----- requesting a ruling to 1) appoint an expert accountant who is tasked with inspecting the accounts and transactions of the respondent with the appellant bank, and the damage he suffered along with due compensation for it; 2) order the bank to restore to him monies appropriated wrongfully.

 

In elaboration he said he had financial transactions at the bank and he had invested the amount of USD One Million through the appellant, but the appellant appropriated the invested amount without any rightful grounds, and ceased all banking letters of credit and credit facilities which resulted in interruption of business and suffering material losses, thus he filed the case.

 

The court appointed an expert and thereafter referred the matter to investigation, and after the expert had filed his report, ordered the bank to pay the respondent the amount of USD [1001070.88] and Second; obligated the bank to pay the respondent the amount of Qatari Riyal [161873.56] by way of compensation, and dismissed all else otherwise. Third obligate the appellant to pay the respondent the amount of USD [15000] by way of compensation. Fourth remove the third party.

 

The first respondent appealed this judgment under No 250/2001 as did the appellant under No 263/2001. The court united the two appeals and remitted the case to the expert.

 

On 29/4/2001 the court ordered dismissal and nullification of the letter dated 18/5/1987.

 

On 25/4/2004 it ruled; on the merits of appeal No 251/2001 filed by the first respondent to modify the appealed judgment so the appellant is obligated to pay the respondent the amount of USD [1000000] or its equivalent in national currency and obligate 'the bank' to pay the respondent the amount of Qatari Riyal [? 9167.814 - ?] by way of compensation for all material and moral losses.

 

Second, dismiss the second appeal No 263/2001 filed by the bank on the merits.

 

Third, dismiss the action for recovery [compensation] filed by the bank against ----------

 

The appellant challenged this judgment by way of second appeal [cassation], the challenge was brought before the court in chambers and a date was fixed for arguments.

 

Whereas the appellant challenges in the third paragraph of the first grounds of appeal that the appealed judgment is contrary to the law and has misapplied it since it relied on the expert's report in respect of calculation of interest and applied set off rules in said calculation without there being an approval from the bank or the issue of a court judgment to that effect.

 

Whereas this challenge is unacceptable for it falls on a non subject issue of the ruling of the appealed judgment since it did not apply the set off rules, therefore this challenge is unproductive.

 

Whereas the appellant in the second ground challenges the appealed judgment on the grounds of invalidity and being contrary to what is established by the papers, and in elaboration stated that the judgment had established its conclusion that the bank received the amount of USD One Million, and transferred a part thereof to the respondent's account on the case experts reports, which entailed its ruling to obligate the bank to pay the judgment amounts while the reports contained no support for the ruling of the appealed judgment in this respect thus vitiating it and calling for its appeal.

 

Whereas this challenge is rejected because departure from what is established by the papers invalidating a judgment is misrepresentation by the court of substance of what is materially established by some documentation described in such positive conduct by which it rules contrary to this data, and it may emanate from a negative position of the court by ignoring these documents and papers and what is established therewith.

 

As such and since the appealed judgment had concluded from the case experts reports which stated proof that the bank invested the amount of USD One Million for the account of the respondent with --------- Company until the said amount was withdrawn in two installments.

 

Since the judgment relied on the contents of the said reports, then it has not departed from has been established by the papers; accordingly this challenge fails [becomes baseless].

 

Whereas the appellant in the fifth ground challenges the appealed judgment on the grounds of contradiction since it established its ruling on obligating payment of judgment compensation on the basis of the bank's fault while it ruled out the respondent's fault proven by the forgery of the letter dated 18/5/1987 which requires negating fault on the part of the appellant.

 

Whereas this challenge is out of place for it is settled in the judgments of this Court that contradiction which vitiates [corrupts] a ruling is where the reasons cancel each other out after which there remains nothing to support the judgment, or where the reasons fail in that one cannot understand the rationale upon which the court gave judgment in the ratio decidendi.

 

As such and since the contents of the appealed judgment in respect of the grave fault attributed to the bank causing loss to the client and negation of fault on the part of the party against whom the recovery case was brought does not mean there is contradiction in the rationale of the judgment according to the meaning determined in the law; accordingly this challenge fails [becomes baseless].

 

Whereas the appellant in the first, second, fourth and fifth paragraphs of the first ground and the third and fourth grounds challenges the appealed judgment on the grounds of misapplication of the law and vitiating the evidentiary fact finding for it considered the basis of connection to the appellant a deposit contract not proven in writing and inferring this by oral testimony of witnesses that does produce this effect for the conclusion reached and upon two witnesses who did not appear in a court of law and are staff of the appellant prohibited by law from divulging its secrets which entailed the judgment obligating the bank to pay the value of the deposit amount and interest accrued to the respondent for his alleged losses while the judgment erred in understanding and deducing what is established in the expert report in the conviction that the amount of Qatari Riyals [8855941] appearing in the report does not include the amount of USD one million, which vitiates it and calls for its appeal.

 

Whereas this challenge is unacceptable for while the court of substance is bound to give contracts and deeds its true description and characterizing it in the proper legal characterization in accordance with the deductions permissible from the factual truth and the common intent of parties to these deeds, and without being constrained by the parties characterization thereof; Yet such characterization is subject to review by the Court of Cassation being a matter of law relevant to the application of law to the facts.

 

Since the case of the first respondent for obligating the bank to refund what it invested for his account from his monies, in fact, relies upon an agency contract and not a deposit contract; and proof of the agency contract is permissible by all means of proof including witness testimony wherever the agency is commercial.

 

Further, assessment of witness testimony is subject to being satisfactory to the substance judge's conscience on which no one has power except where his inferences from said testimony do not lead to its purport. 

As the court relied on the testimony of -------- and -------- and the ruling based its judgment on the witness testimony and the contents of the expert report.

 

As such and since the appellant has not previously pleaded before the court of substance that it is not permissible to rely on witness testimony of bank staff for it constitutes divulgence of its secrets entrusted to them, therefore the entire challenge is no more than an argument on a substantive matter which cannot be raised before this Court.

 

Whereas it is settled that agency is a contract by which the agent undertakes to perform an act for the account of the principal, committing to exert due care in performance of agency acts, submitting an account of such acts and refunding what is under his hand to the principal by reason of the agency; and the agent is liable for failure caused by his action or neglect, and if in performing the agency he does not take precautions demanded by the principal's interests, he becomes liable to him in compensation for the loss he suffers due to such neglect.

 

Since the judgment concluded in its ruling to refund the invested amount to the respondent and compensate him for losses he suffered on the basis of what was stated in the expert report and witness testimony and in accordance with agency provisions; therefore reliance on characterization of the contract as one of deposit does not bear on the soundness of its ruling and the challenge becomes unproductive [fails]