Session Date: 24 March 2009

Appeal by Cassation No. 14 of 2009 – civil appeal by cassation

(1, 2)  Appeal by cassation “conditions for the admission of appeal by cassation: interest: theoretical interest” “the scope of appeal by cassation” “reasons of appeal by cassation: a reason that is groundless” – judgment “appealing against it by way of cassation: the scope of appeal by cassation” – claim “interest in a claim”.

(1) Appeal by way of cassation – its scope – matters settled by the judgment appealed against by cassation, explicitly or implicitly – contention against the first instance judgment which lacks grounds in the judgment appealed against by cassation – inadmissible.

(2) Pure theoretical interest – not valid as a basis for an appeal by way of cassation.

(5-3) Property “public property” “Private State property” – registration of title.

(3) Identifying the public property description – its criterion – being allocated for public utility – allocation is made by virtue of the law or by conduct – S. 57 Civil.

(4) Property that is privately owned by the State – being allocated for public utility – its means – the preparation of such property to make it suitable for such utility specifically thereon.

(5) Mosques and car parking at marketplaces established by the State on its lands for public utility – considering them as public property owned by the State – that they should not be transacted nor their ownership transferred – S. 57  92) Civil – first instance judgment rejecting an application by Appellants for the registration of disputed lands in their name – contending against the judgment appealed against by cassation that it erred in the application of the law because it considered the first instance judgment in this connection as being outside the scope of appeal – only realizing a pure theoretical interest which is not appropriate as a basis for appeal by way of cassation – reasons for this.

(6) Contract “its interpretation” – the court of first instance “its power to interpret admissions, agreements, arbitration accords and other documents”.

The court of first instance has full power to interpret admissions, agreements, arbitration accords and other documents, in the manner it deems most commensurate to the intention of their parties or stakeholders, in line with the facts and circumstances of the case, with no supervision thereon by the Cassation Court – its condition – that it should not exceed, in such interpretation, the meaning appropriate for the wording of the document, and that its conclusions should be reasonable and acceptable in relation to the reasons on which such conclusion was based.

(7) Compensation “waiver of the right to compensation” – judgment “its reasoning: defects in argumentation: what is not considered as such”.

Voluntary waiver of a right – the maker of such waiver, or his representative, may not thereafter claim compensation for being denied of such right – that the judgment appealed against by cassation maintains such jurisprudence – contending against it for erring in the application of the law and bad argumentation – baseless.

1-    The subject-matter of appeal by way of cassation, as established jurisprudence of this Court, only includes what the judgment appealed against by cassation has settled, in connection to the registration of the land used as car parking, which was regarded as not included, being outside the scope of the appeal. Contention under this reason would therefore relate to the first instance judgment, and would not qualify as subject-matter for the judgment appealed against by cassation. It should therefore be inadmissible.

2-    It is established jurisprudence of this Court that a purely theoretical interest does not qualify as a basis for appeal by cassation.

3-    The legislature, under Section 57 of the Civil Law, provides that “Real estates, movables owned by the State or by public juridical persons, which are allocated for public utility by conduct or by operation of the law shall be deemed public property. Such property shall not be disposed of, put under attachment or owned by limitation”. This means that the criterion for identifying the description of public property is the allocation of such property for public utility, which allocation may be either by the law or by conduct.

4-    The allocation for public utility of property privately owned by the State is done through the preparation of such property to make it suitable for such utility, specifically thereon.

5-    It is established by the first instance judgment referring the judgment appealed against by cassation, and the report of the expert appointed in the claim that the land which the Appellants applied for its registration is owned by the State, by virtue of title deeds carrying the numbers …, …, …, and ….. It has been allocated as car parking for the commercial area surrounding it and a mosque. Mosques and car parking spaces at marketplaces which the State establishes on its lands provide public services, since they are accessible by people at large. It follows that the land the ownership of which the Appellants applied to be transferred to them is considered as public property, excluded from disposition, by virtue of aforesaid Section 57(2). The ownership of such land may not be transferred to the Appellants as long as it maintains its status as being allocated for public utility. The application by the Appellants for the registration of such land in their name therefore deserves to be rejected, which was the case by virtue of the first instance judgment. Accordingly, the Appellants’ interest, in contending that the judgment appealed against by cassation has erred in regarding the first instance judgment on such application exceeded the scope of the appeal, becomes a pure theoretical interest that deserves no attention. Should such contention be validated, the judgment appealed against by cassation entertained, and the case referred back to the Court of Appeal, rejection would be the destiny such application.

6-    It is established jurisdiction of this Court that the court of first instance has full power to interpret admissions, agreements, arbitration accords and other documents, in the manner it deems most commensurate to the intention of their parties or stakeholders, in line with the facts and circumstances of the case, with no supervision thereon by the Cassation Court, so long as it does not exceed, in such interpretation, the meaning appropriate for the wording of the document, and the conclusion reached be reasonable and acceptable in relation to the reasons on which such conclusion was based.

7-    Whoever voluntarily waives a right, and his representative, may not apply for compensation based on being denied such right. By rejecting the Appellants’ application for compensation, the judgment appealed against by cassation does not become defective, and the contention is thereby rendered baseless. 

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 Appellants brought against the Respondents the claim No 1416/2005 applying for a judgment, first: ordering the Second Respondent as against the other Respondents to register such areas of land taken from the lad they owned as detailed in the statement, secondly: ordering the last Respondent to pay equitable compensation to them for such areas according to the Expropriation Law. They stated that their deceased person, …….., owned a land opposite to the central marketplace, which was planned by the Urban Planning Directorate. According to such planning some commercial stores were erected and were known as ……… Market. Thereafter they received title deeds for the market buildings only, not including the lands located at the centre, which was used as car parking for shoppers and left for that purpose in compliance with the planning requirements, although it falls within their ownership. Accordingly they brought the claim. The court appointed an expert and, upon submission of his report, it issued a judgment dismissing the claim. The Appellants lodged an appeal which was registered as No 841/2007. On 30.11.2008 the Court of Appeal issued a judgment confirming the appealed judgment. The Appellants then lodged an appeal by cassation, which was presented before this Court, at the deliberations chamber, where a session was fixed for its consideration.

The appeal by cassation is based on three reasons. In the second reason, the v of the contention is that the court of first instance rejected their application to order the Real Estate Registration and Authentication Directorate to register the land used as car parking for unreasonable grounds, based on erroneous interpretation of two letters issued by their deceased person, where the court deviated from the apparent meaning of their wordings, and contradicted the substance of the claim, and that that renders its judgment defective and void.

This contention is unacceptable. It is established jurisprudence of this Court that the subject-matter for appeal by cassation would only involve matters explicitly or implicitly settled by the judgment appealed against by cassation. Since the judgment appealed against did not consider the application for the registration of the land used as car parks, considering it not included and falling outside the scope of the appeal, such contention under such reason applies to the first instance judgment, and would not apply to any subject-matter of the judgment appealed against by cassation. It is therefore inadmissible.

In the first reason, the Appellants contend against the judgment appealed against by cassation that it contradicted matters established by documents. They state that the scope of an appeal, in relation to such parts of the judgment intended to be appealed against by cassation, is to be defined by the contents of the statement of such appeal. The Appellants applied, in their statement of appeal, for the quashing of the entire first instance judgment, and for a judgment as applied before the first instance court. The judgment appealed against, however, considered that the appeal did not include the part of the first instance judgment rejecting the application to order the Real Estate Registration and Authentication Directorate to register the land used as car parking, and by doing so it has contradicted what has been established by the documents, and consequently prevented from settling such application. This renders the judgment defective and worthy of appeal by cassation.

This contention is unacceptable. It is established jurisprudence of this Court that pure theoretical interest is not valid as a basis for an appeal by way of cassation. Section 57 of the Civil Law, provides that “Real estates, movables owned by the State or by public juridical persons, which are allocated for public utility by conduct or by operation of the law shall be deemed public property. Such property shall not be disposed of, put under attachment or owned by limitation”. This means that the criterion for identifying the description of public property is the allocation of such property for public utility, which allocation may be either by the law or by conduct. The allocation for public utility of property privately owned by the State is done through the preparation of such property to make it suitable for such utility, specifically thereon. It is established by the first instance judgment referring the judgment appealed against by cassation, and the report of the expert appointed in the claim that the land which the Appellants applied for its registration is owned by the State, by virtue of title deeds carrying the numbers …, …, …, and ….. It has been allocated as car parking for the commercial area surrounding it and a mosque. Mosques and car parking spaces at marketplaces which the State establishes on its lands provide public services, since they are accessible by people at large. It follows that the land the ownership of which the Appellants applied to be transferred to them is considered as public property, excluded from disposition, by virtue of aforesaid Section 57(2). The ownership of such land may not be transferred to the Appellants as long as it maintains its status as being allocated for public utility. The application by the Appellants for the registration of such land in their name therefore deserves to be rejected, which was the case by virtue of the first instance judgment. Accordingly, the Appellants’ interest, in contending that the judgment appealed against by cassation has erred in regarding the first instance judgment on such application exceeded the scope of the appeal, becomes a pure theoretical interest that deserves no attention. Should such contention be validated, the judgment appealed against by cassation entertained, and the case referred back to the Court of Appeal, rejection would be the destiny such application.

In the last reason, the Appellants contend against the judgment appealed against by cassation that it involved error in the application of the law, bad argumentation and contradiction of documentary evidence. The state in this context that the said judgment rejected their application for compensation for the area taken out of their land and allocated for public services, since their deceased person had surrendered such area in favour of the State to implement thereon its urban planning, by virtue of letters issued by such deceased person who did not therein claim his right to compensation for such area. However, the letters issued by the deceased person only indicate his agreement to the land planning as prepared by the Urban Planning Directorate, with no indication that he waived his right to claim the deserved compensation. This renders the judgment defective and worthy of cassation.

1-    This contention is inappropriate. It is established jurisprudence of this court that the court of first instance has absolute power to interpret admissions, agreements, arbitration accords and other documents, in the manner it deems most commensurate to the intention of their parties or stakeholders, in line with the facts and circumstances of the case, with no supervision thereon by the Cassation Court, so long as it does not exceed, in such interpretation, the meaning appropriate for the wording of the document, and the conclusion reached be reasonable and acceptable in relation to the reasons on which such conclusion was based. As revealed by its documents, the facts of the case are that the Appellants’ deceased person submitted an application to the Ministry of Municipal Affairs regarding the land situated opposite to the central market, which he owned and has been planned as residential, for such land to be treated as commercial land. The said application was accepted on condition that the terms of planning the area should be observed, by leaving areas for public use, including roads, parking, and areas allocated for public utilities and services, as well as allowing 40 meters off the main road. After planning the land the plan was shown to the deceased person who issued two letters on 14 February and 8 March addressed to the Director of the Urban Planning Directorate. In these letters he expressed his approval to the plan and undertook to remove any establishments on the land which do not comply with the plan. He further accepted that the areas allocated for public utilities remain according to the plan in the ownership of the State, and that his ownership be limited to the market area as shown therein. The judgment appealed against by cassation deduced from the aforesaid that the Appellants’ deceased person had surrendered ownership of the land allocated for public services in consideration for altering the planning of his residential land into commercial one. Such alteration, which was conducted according to his application, was conditioned on the provision of areas for such services. The aforesaid deduction is therefore reasonable, logical, and commensurate to the two letters issued by the deceased person and corresponding circumstances, which falls within the powers of the first instance court. Whoever voluntarily waives a right, and his representative, may not apply for compensation based on being denied such right. By rejecting the Appellants’ application for compensation, the judgment appealed against by cassation does not become defective, and the contention is thereby rendered baseless. Accordingly, this appeal by cassation is dismissed.