Session Date: 24 March 2009

Appeal by Cassation No. 12 of 2009 – civil appeal by cassation

Notification “notification with a judgment” – judgment “its reasons: defects in argumentation: error in the application of the law” “appeal by cassation against a judgment: the time for appeal by cassation: commencement of application” – claim “stay of proceedings in a claim”.

The times for appealing judgments by cassation – as a general principle they commence from the date such judgments were pronounced – judgments considered to be in absentia and judgments where the law presumes the lack of knowledge, by the person against whom the judgment is issued, of the litigation and the procedures taken thereon, including the discontinuation of court sessions – failure by the person against whom the judgment was issued to attend any session following such discontinuation, and his failure to submit his statement of defence – its effect – that the time for appeal by cassation commences from the date the judgment was notified to such person – S. 157  ways – Violation by the judgment appealed against of this jurisprudence by deciding that such appeal was made beyond the time limit since the judgment was attended by the Appellant – an error in the application of the law.

Section 157 of the Civil and Commercial Procedures Law provides that “Unless the law provides otherwise, the time for appealing against a judgment by cassation commence from the date of its issuance. Such time shall commence from the date the judgment is notified to the person against whom such judgment was issued in cases where such person fails to attend all the sessions fixed for entertaining the claim, and fails to submit a statement of his defence. Likewise, where the person against whom the judgment is issued fails to attend and submit his defence statement at all the sessions following the recommencement of the claim after its discontinuation for any reason whatsoever”. This means that the law provides as a general principle that the time for appealing by cassation against a judgment commences from the date such judgment is pronounced. However, the law exempted from such principle judgments issued in absentia, and judgments where the law presumes lack of knowledge, by the person against whom the judgment is issued, of the litigation and the procedures taken thereon. In these cases the time for appealing by cassation commences from the date of notification with the judgment. Accordingly, if for any reason whatsoever the claim proceedings discontinue, resulting in a break in the court sessions, and it was proved that the person against whom the judgment was issued failed to attend any of the sessions following such discontinuation and did not submit his defence statement, the time for appeal by cassation does not commence in his case except from the date of his notification with such judgment, even where such person had attended sessions during the previous period. The documents reveal that the claim was entertained at the session dated 30.12.2007, and the court issued a judgment appointing two arbitrators who were mandated as detailed in the judgment statement. The court also fixed a session on 3.3.2008 for the submission by the two arbitrators of their report, then it decided, upon application by the Respondent, to hasten the date for entertaining the claim to be on 28.1.2008. Such was a procedure that has broken the continuation of the claim sessions. The Appellant failed to attend, neither in person nor through a representative, and failed to submit a statement at the session held at the hastened date when the claim was held up for judgment on 4.2.2008. The ensuing judgment was therefore issued in absentia as regards the Appellant, whose lack of notification would leave the time for appeal by cassation open until his notification thereof on 3.4.2008. Accordingly, the judgment appealed against by cassation, to the extent that it decided that the appeal was made beyond its time based on the belief that the judgment was not in absentia as regards the Appellant, has violated proper law which renders it defective.

The Court

Having reviewed the documents, and having heard the report read out by the Judge-Rapporteur, and heard the submissions, and after the deliberations;

Whereas the appeal by cassation has satisfied its formalities;

The facts, as revealed in the judgment appealed by cassation and other documents, may be summed up as follows. The Respondent brought the claim No 933/2007 applying for a judgment rescinding her marriage with the Appellant and ordering a final divorce (talaq baa-in) resulting from khula. She stated that she was, and remains, his compliant wife by virtue of a valid Islamic marriage contract dated 1.3.1987, and that due to her disliking him and lack of desire to maintain the matrimonial life with him she offered him khula’ separation in consideration of waiver of all her legal and financial rights, including her dowry, both advance and belated instalments, with the latter still outstanding. The husband refused and she accordingly brought the claim. The court appointed two arbitrators to study the reasons for the differences and try to mediate a settlement between the parties. The two arbitrators submitted their report, and the court referred the claim for investigation by hearing the testimony of the two arbitrators regarding her claim that the Applicant issued a divorce vow before such arbitrators and during the performance of their mandate on 16.1.2008. The court issued a judgment validating the divorce by the Appellant of the Respondent, and ordering a major final separation (baynoona kubra) between them as of 16.1.2008. The Appellant lodged against the judgment an appeal No 26/2008 which the court formally dismissed on the basis of being lodged after the expiry of its time. The Appellant lodged against such judgment an appeal by cassation, which was presented before this Court, at the deliberations chamber, and it fixed a session for its consideration.

The Appellant contends against the judgment appealed by cassation that it erred in the application of the law. He states that the claim was postponed, before the first instance court, to a session scheduled for 3.3.2008 for the submission of the arbitrators’ report. However, in response to an application by the Respondent, a hastened up session, on 28.1.2008, was fixed for entertaining the claim. The Appellant did not attend this session, neither personally nor through a representative, and the court decided to hold up the claim for judgment at a session on 4.2.2008, when such judgment was issued. Accordingly, such judgment becomes in absentia as regards the Appellant, who was not notified with the judgment until the decision to appeal on 3.4.2008. The judgment appealed against by cassation formally dismissed the said appeal, on the grounds that it was lodged beyond its time, based on considering the judgment as presumed attended by the Appellant. Such judgment is therefore defective and worthy of appeal by cassation.

This contention is appropriate. Section 157 of the Civil and Commercial Procedures provides that “Unless the law provides otherwise, the time for appealing against a judgment by cassation commence from the date of its issuance. Such time shall commence from the date the judgment is notified to the person against whom such judgment was issued in cases where such person fails to attend all the sessions fixed for entertaining the claim, and fails to submit a statement of his defence. Likewise, where the person against whom the judgment is issued fails to attend and submit his defence statement at all the sessions following the recommencement of the claim after its discontinuation for any reason whatsoever”. This means that the law provides as a general principle that the time for appealing by cassation against a judgment commences from the date such judgment is pronounced. However, the law exempted from such principle judgments issued in absentia, and judgments where the law presumes lack of knowledge, by the person against whom the judgment is issued, of the litigation and the procedures taken thereon. In these cases the time for appealing by cassation commences from the date of notification with the judgment. Accordingly, if for any reason whatsoever the claim proceedings discontinue, resulting in a break in the court sessions, and it was proved that the person against whom the judgment was issued failed to attend any of the sessions following such discontinuation and did not submit his defence statement, the time for appeal by cassation does not commence in his case except from the date of his notification with such judgment, even where such person had attended sessions during the previous period. The documents reveal that the claim was entertained at the session dated 30.12.2007, and the court issued a judgment appointing two arbitrators who were mandated as detailed in the judgment statement. The court also fixed a session on 3.3.2008 for the submission by the two arbitrators of their report, and then it decided, upon application by the Respondent, to hasten the date for entertaining the claim to be on 28.1.2008. Such was a procedure that has broken the continuation of the claim sessions. The Appellant failed to attend, neither in person nor through a representative, and failed to submit a statement at the session held at the hastened date when the claim was held up for judgment on 4.2.2008. The ensuing judgment was therefore issued in absentia as regards the Appellant, whose lack of notification would leave the time for appeal by cassation open until his notification thereof on 3.4.2008. Accordingly, the judgment appealed against by cassation, to the extent that it decided that the appeal was made beyond its time based on the belief that the judgment was not in absentia as regards the Appellant, has violated proper law which renders it defective and worthy of appeal by cassation.