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Court of Cassation - Civil & Trade Division - Number: 36 /2008

Ruling Summary Record: The Court: Court of Cassation Circuit: Civil & Trade Division Number: 36Year: 2008Session Date: 5/13/2008

The Court Panel :Dr.Sakeel Bin Sayer Al-Shamry - Ahmed Mohamed Farahat - Ahmed Mahmoud Kamel - Ahmed Saied Khalil - نبيل أحمد صادق. -

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إنشاء قائمة تشغيل جديدة

إدخال اسم لقائمة التشغيل...

Session May 20, 2008

Appeal Nos. 31 and 34, 2008, Civil Cassation

(1) Appeal "Effects of appeal: Transferring effect of appeal" "Claims in appeal" "Court of Appeal power to deal with".

Appeal. Effect of. Transfer of suit to the second step court within the boundary of claims determined by the first step court and the causes of action supporting such claims, whether or not considered by the court unless waived by the parties asserting them. Such effect is not precluded by the Court of Appeal dealing with the issues not determined by the first step court. Reason for.

(2) Cassation: "Effect of judgment cassation and transfer of suit". Judgment: "Binding Force of ".

Cassation. Judgment and transfer of suit. Effect of. Extinction of the appealed judgment and abolition of its binding force after cassation. Litigation and litigants are restored to their status quo before the appealed judgment. Litigants may pursue, before the transferee court, their claims, assertions and defences raised before the appealed judgment was passed Requires. Cassation of first appeal judgment stretching to include appeals by parties joining Appellant without need to consider their grounds.

1- Since the appeal transfers the suit to the second step court within the boundary of the claims determined by the first step court and the causes of action on which they are based whether actually considered or not as long as they are not waived, and such effect is not precluded by the fact that the Court of Appeal will, in this case, deal with the issues not considered by the first step court; as the legislator permitted the parties, while keeping the original claim, to change their causes of action before the Court of Appeal or to add new ones not formerly asserted before the first step court, consequently, they may present their new evidence and defences in addition to what was adduced before the first step court.

2- Originally, cassation of the appealed judgment in full and transferring the suit to the court of judgment, has the effect of extinguishing the appealed judgment and abolishing its binding force, so that the litigation and litigants are restored to their status quo before the appealed judgment. They may pursue, before the transferee court, their claims, assertions and defences raised before the appealed judgment was passed. This requires that cassation of the judgment in the first appeal to stretch as to include the appeal by parties joining Appellant without need to consider their grounds

Court
After reviewing the papers and hearing the report, read by the reporting judge, the pleading, and deliberation.
Whereas the two appeals have satisfied their formal conditions.
The facts, as stated in the appealed judgment and the suit papers, are that Appellant in the first appeal filed Suit No. (-) Full Civil, against the predecessor of Respondents from the third to the ninth and the other Respondents except the last two asking for avoidance of the contracts of sale made by his father the first defendant before he was placed under guardianship on 28/12/2002, explaining this by saying that as his father was mentally stricken, some of his apparent heirs exploited his condition and led him to sign contracts for the sale of the property in suit to a company owned by them despite their full knowledge of his mental weakness, so he filed suit. The court dismissed the suit. Appellant in the first appeal appealed this judgment by Appeal No. 37/2004 and was joined by the last two Respondents. Appellant resumed litigation of the suit after the death of his father under guardianship against his heirs with the other opponent parties, and requested investigation of the suit to prove the sham contracts of sale made by his predecessor which were made without any real consideration paid to him. After investigation hearing testimony of the two sides, the court appointed an expert and on 29/1/2008 confirmed the appealed judgment. Appellant in the first appeal appealed this judgment by way of cassation by Appeal No. 31/2008 and the joined two parties by Appeal No. 34/2008. The two appeals were put before this court - in the consultation room - which fixed a date for hearing them after joining the second appeal to the first.
Whereas, Appellant in the first appeal argues against the appealed judgment for misapplication of law and deficient reasoning, explaining it by saying that he asserted avoidance of the contracts of sale of the property the subject of dispute in his appeal against judgment of the first step court emphasising that no price was paid for them and that they were made with the intention to deprive him of his legal right in the estate, and asked the court to investigate the shamming nature of these contracts, however, the appealed judgment splitted his defence on the extent of imbecility at the time of disposition by his father disregarding his defence that the contracts were void because they were sham contracts, which is a crucial defence as to change opinion in the suit if considered by the court, therefore, he is asking for cassation.
Whereas this argument is in place, for, since the appeal transfers the suit to the second step court within the boundary of the claims determined by the first step court and the causes of action on which they are based whether actually considered or not as long as they are not waived, and such effect is not precluded by the fact that the Court of Appeal will, in this case, deal with the issues not considered by the first step court; as the legislator permitted the parties, while keeping the original claim, to change their causes of action before the Court of Appeal or to add new ones not formerly asserted before the first step court, consequently, they may present their new evidence and defences in addition to what was adduced before the first step court; and as it is clear from the papers, that Appellant asked before the first step court for avoidance of the sale contracts made by his predecessor and the predecessor of Respondents excepting the first two and the tenth for exploitation by some of the heirs of the state of imbecility before placing his predecessor under guardianship; and before the Court of Appeal he called, alternatively, for putting the suit for investigation to prove the contracts as sham contracts, made for hiding a bequest with the intention to deprive him of his inheritance right in the estate; and as the legal qualification of this request by Appellant, in reality and as intended to be, is a defence of shamming contracts in dispute, which is a relative one, irrespective of Appellant's naming; and as the appealed judgment replied to Appellant by the conclusion reached by the expert report that the dispositions in dispute were made by registered contracts in satisfaction of their legal form, and that the deceased father used to grant his sons and their wives and sons real property either by sham sales or gifts, and both are proper legal dispositions as long as being made by the owner with his free will; and as the above implied answer in the appealed judgment is not a proper reply to Appellant's defence, for the seriousness of the contracts inferred by the court from their wordings and contents is the real issue of appeal that it hides a bequest. As for the above, and that the court substantially overlooked Appellant's defence and did not face it in its reality or care for verifying it, though, it was a crucial one, which, if true, would change opinion in the suit, hence cassation is allowed without need to consider the rest of the grounds of appeal.
Whereas, originally, cassation of the appealed judgment in full and transferring the suit to the court of judgment, has the effect of extinguishing the appealed judgment and abolishing its binding force, so that the litigation and litigants are restored to their status quo before the appealed judgment. They may pursue, before the transferee court, their claims, assertions and defences raised before the appealed judgment was passed. This requires that cassation of the judgment in the first appeal to stretch as to include the appeal by parties joining Appellant without need to consider their grounds of appeal.

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