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Court of Cassation - Civil & Trade Division - Number: 25 /2008

Ruling Summary Record: The Court: Court of Cassation Circuit: Civil & Trade Division Number: 25Year: 2008Session Date: 5/6/2008

The Court Panel :Abdulla Bin Ahmed Al-Saadi - Ibraheem Mohamed Al-Taweela - Mounir Ahmed El Sawy - Mubarak Bin Naser Al-Hagry - يحيى إبراهيم عارف -

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إنشاء قائمة تشغيل جديدة

إدخال اسم لقائمة التشغيل...

Cassation "Grounds of appeal: Public order related grounds, fact mixed legal grounds". Defences "Defence of non-existence of litigation in the Court of Cassation". Suit "non-existence of litigation". Evidence "of proof proceedings: Decisive oath: Conditions for directing it". Lease "lease of premises: general rules of leasing: Comparing between multiple lessees of only one premises". Contract, lease contract: Comparing between contracts". Cassation "Grounds of appeal: Irrelevant Grounds." Judgment: "Reasoning of: Not tainted by". Compensation "assessment of: Gross compensation". Court of First Instance "power to merge losses and compensation for grossly". Evidence "of proof proceedings: appointing or deputizing an expert, " Expert starting his job". Invalidation "Invalidation of proceedings" "Expert summoning of the parties".

Session: 06/05/2008

Appeal No. 25, 2008 Civil Cassation

(1) Cassation "Grounds of appeal: Public order related grounds, fact mixed legal grounds". Defences "Defence of non-existence of litigation in the Court of Cassation". Suit "Non-existence of litigation".

Defence of non-existence of litigation in suit. Public order related. All factual elements proved not presented before the Court of First Instance. Effect of. May not be raised for the first time before the Court of cassation. Reason for.

(2) Evidence "Proof Procedures: Decisive oath: Conditions for directing it"

Decisive oath. For the parties. Judge bound to accept direction of at any stage of suit if its conditions are satisfied. Cases of refusing it. If irrelevant or suit is proved otherwise.

(3) Lease "lease of premises: general rules of leasing: Comparing between multiple lessees of only one premises". Contract, lease contract: Comparing between contracts.

Multiple lessees of only one premises. Comparing between them. Priority for those having precedence in occupying premises without cheating. Article (16) of Law (2), 1975 on rent of premises and buildings - applying to the issue of dispute. Lease contract proved to be dated before date on which good faith lessee occupied the premises leased. Effect of. No way for applying occupation precedence rule on comparison.

(4) Cassation "Grounds of appeal: Irrelevant Grounds." Judgment: "Reasoning of: When Considered Not flawed by".

Judgment based on two supports. Sufficiency of one of them to support the judgement. Impeaching the other - even if true - is irrelevant.

(5) Compensation "Assessment of compensation: Gross compensation". Court of First Instance "power to merge losses and compensation for grossly". Evidence "of proof proceedings:

Court of First Instance. Power to determine compensation for the loss. May merge material and moral losses and determine gross compensation for.

(6) Evidence "Proof Procedures: appointing or deputizing an expert: Expert starting his job". Invalidation "Invalidation of proceedings" "Expert summoning of the parties".

Expert must summon the parties by registered letters to appear before him on the date specified to start his job. Failure to do so. Effect of. Invalidation of the expert report. Article (344) Procedures Proper summoning of the parties. Expert may carry on his job in their absence.

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1- As is found in the primary judgment, confirmed by the appealed judgment, that first Respondent company was a litigant party represented by its legal representative, its liquidator, during trial of the suit, and as this finding was not impeached by second Respondent in the Court of Appeal, and as the documents it provided for the Court of Cassation regarding the striking off the said company of the commercial register were not presented to the Court of First Instance to decide on such document and its content, therefore, the defence of non-existence - though public order related - is improper.

2- Held - in the judgments of this court - that the decisive oath is for the parties to ask for, the judge is bound to accept it at any stage of suit if its conditions are satisfied, unless the suit is otherwise proved or the oath is improperly formulated as to be irrelevant.

3- The import of the provision of Article (16) of Law No. (2), 1975 on rent of premises and buildings - applying to the issue of dispute - is that comparison among multiple lessees for one premises is based on precedence of occupation without cheating, unless should one of them prove the date of his lease contract was before the date of occupation by the other of premises leased.

4- Held - in the judgments of this court - that if judgment is based on multiple supports, and that one such support, which is not impeached, is sufficient to support the judgment, then impeaching the other supports - even if true - is irrelevant.

5- Since assessment of compensation is within the power of the Court of First Instance to redress the elements of material and moral harm or loss without its judgment being tainted by merging both types of harm or loss and awarding gross compensation for all.

6- The import of the provision of Article (344) Procedures - in the precedents of this court - is that the expert must summon the parties by registered letters informing them of the place, day and hour of the first meeting, and that failure to do so invalidates the expert work and that in case of proper summons, he may perform his work even in their absence.

Brought by: Company ............... Limited Liability Company (WLL) V. First: Company ...............

Second: Company ...............

The facts

On 10/3/2008 an appeal for cassation of judgment of the Court of Appeal No. 522/2008 passed on 29/1/2008 by a statement of appeal asking for accepting the appeal in form and in substance by allowing cassation of the appealed judgment and determine the subject matter, and on the same day Appellant filed an explanatory memo. On 11, 13/03/2008 Respondent was served with the statement of appeal. And on 19/3/2008 second Respondent filed his statement of defence asking for dismissal of the appeal. On 26/3/2008 Appellant deposited statement of reply. And in court session on 1/4/2008 the appeal was put before the court in the consultation room, which opined it as worth considering and fixed a date for hearing. And in court session on 15/4/2008 this Circuit heard the appeal as stated in the session record. The court adjourned passing judgment for today's session.

Court
After reviewing the papers and hearing the report, read by the reporting judge, the pleading, and deliberation.
Whereas the appeal has satisfied its formal conditions.
The facts - as stated in the appealed judgment and all suit papers - are that Appellant filed Suit No. 1488/ 2005 Full Civil, asking for judgment obligating first Respondent to enable it occupy the premises leased by lease contract dated 12/9/2002 without disturbance from second Respondent and ordering them to jointly pay compensation in the sum of 1,745,141 riyals. Saying in explanation that by contract dated 12/9/2002 Appellant leased from first Respondent the premises situated..... for the period of five years starting on linking electricity, and that paid 6000 riyals as security and gave first Respondent 36 cheques covering three years' rentals in advance, and took out commercial licence for starting business, however, when starting to do the décor works, the workers of second Respondent demolished the wall separating between the leased premises and the other buildings, so it lodged a criminal information but the prosecution stayed proceedings as civil dispute related, so it filed the suit. The court appointed an expert and after submitting his report it passed judgment against first Respondent to pay to Appellant one hundred thousand riyals and dismissed the other claims. Appellant filed Appeal No. 522/2007 against this judgment and on 29/1/2008 passed judgment increasing compensation to two hundred thousand riyals and otherwise confirming the appealed judgment. Appellant appealed for cassation, and second Respondent presented a memo defending by non-existence of litigant status between the parties for liquidation of first Respondent company. The appeal was put before this court - in the consultation room - which fixed a date for hearing it.
As for second Respondent's defence for non-existence of litigation status because first Respondent company was liquidated before filing of the suit, and is found in the primary judgment, confirmed by the appealed judgment, that first Respondent company was a litigant party represented by its legal representative, its liquidator, during trial of the suit, and as this finding was not impeached by second Respondent in the Court of Appeal, and as the documents it provided for the Court of Cassation regarding the striking off the said company of the commercial register were not presented to the Court of First Instance to decide on such document and its content, therefore, the defence of non-existence - though public order related - is improper.
Whereas Appellant argues, on the first side and second part of the fourth side of the first grounds, against the appealed judgment for being contrary law and misapplication of it by refusing to accept directing the decisive oath for misunderstanding the import of that oath, which was to prove or disprove knowledge of Respondent of the fact of the premises in dispute being leased by Appellant to prove cheating by Respondent, hence, their having no right to preference in case of multiplicity.
Whereas this argument is not in place, for, as held - in the judgments of this court - that the decisive oath is for the parties to ask for, the judge is bound to accept it at any stage of suit if its conditions are satisfied, unless the suit is otherwise proved or the oath is improperly formulated as to be irrelevant. And as the import of the provision of Article (16) of Law No. (2), 1975 on rent of premises and buildings - applying to the issue of dispute - is that comparison among multiple lessees for one premises is based on precedence of occupation without cheating, unless should one of them prove the date of his lease contract was before the date of occupation by the other of premises leased. That being so, and as the appealed judgment did not recognize any effect from directing oath to second Respondent on deciding the dispute, moreover, Appellant never asserted before the Court of Appeal any cheating in the relationship between the two Respondents, therefore, he may raise it for the first time in the Court of cassation. And as it is a fact in the records of the appealed judgment confirmed by the judgment appealed for cassation that Appellant never occupied the disputed premises while second Respondent did so from the date he concluded the contract for leasing it, therefore, comparison would be in favour of the latter being the occupant without cheating. Therefore, argument on such grounds is irrelevant, and as the appealed judgment reached the same conclusion, it is not tainted if the Court of Cassation can correct its reasoning without cassation since its final decree is correct application of law to the facts.
And whereas Appellant argues on the second side of the first grounds against the appealed judgment for being contrary to law by relying on the expert report which concluded by saying the specific performance would be hard on Respondent without stating the costs that would make it so. And that the judgment ignored the moral compensation and awarded general compensation for loss which did not state its elements, therefore, cassation must be allowed.
Whereas this argument is inadmissible, for as held - in the judgments of this court - that if judgment is based on multiple supports, and that one such support, which is not impeached, is sufficient to support the judgment, then impeaching the other supports - even if true - is irrelevant. And as it is clear from the records of the appealed judgment that, in rejecting Appellant's claim for specific performance, it was based on two supports, the first was that specific performance would be hard on second Respondent, and the second was that Appellant did never occupy the premises in dispute and as this second support is enough to hold the judgment without the first one, hence, argument in all sides is irrelevant and inadmissible. That being so, and since assessment of compensation is within the power of the Court of First Instance to redress the elements of material and moral harm or loss without its judgment being tainted by merging both types of harm or loss and awarding gross compensation for all. As the appealed judgment assessed compensation for the loss incurred by Appellant as the result of first Respondent leasing the premises to them and delivering it to another, as it considered adequate for redressing it, taking into account the surrounding circumstances and as such conclusion was tolerable and supported by the papers, thus, the whole argument is baseless.
And whereas Appellant argues on the third side of the first grounds against the appealed judgment for being contrary to law relying on the expert report which is based on invalid visit and viewing made by him without summoning the parties to it and or recording it, which call for cassation.
Whereas this argument is not in place, for the import Article (344) of the civil procedures code provides that: And as - in the precedents of this court - is that the expert must summon the parties by registered letters informing them of the place, day and hour of the first meeting, and that failure to do so invalidates the expert work and that in case of proper summons, he may perform his work even in their absence. That being so, and as established from the records of the works of the expert report that he summoned the parties to appear before him to start his job and attend the viewing by letters he kept copies of and made the viewing in the presence of those who attended and made a record of his works, therefore, Appellant's argument for invalidity is not in place.
For the above, appeal is dismissed.
Therefore, the court dismissed the appeal and obligated Appellant with expenses and forfeiture of surety deposit.

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