(1) Appeal “lodging an appeal: a counter-appeal”.

A counter-appeal – its condition – section 174 Procedures – may be lodged on applications to which the original appeal failed to respond.

(2) Claim “capacity in a claim” – the first instance court “its power in relation to deducing the existence of capacity in a claim”.

Deducing the existence of capacity in a claim – a fact – the first instance judge has exclusive power thereon – suffice him to state the truth he deems convincing and to found his jurisprudence on reasonable grounds which suffice to support such jurisprudence.

(3) Obligation “expiry of an obligation: limitation on an obligation” – limitation “limitation that forfeits [the right]”.

Obligation – its limitation by the expiry of fifteen years where no special provision exists – Section 195 of the old Civil Law corresponding to Section 403 of the current Law.

(4) Common [ownership] “administration of common property” – agency “limitation on the amounts payable by an agent to the account of his principal”.

Taking over by one partner the administration of common property without objection by the remaining partners – its effect – being considered as an their agent – its consequence – that no debt limitation applies between such partner and the remaining partners throughout the continuation of the agency – the reason for this.

1- Section 174 of the Procedures Law provides that “The respondent may, up until the closing of litigations, lodge a counter-appeal following the normal procedures, or by a memorandum including the reasons of his appeal. If the counter-appeal is lodged after the appeal time or after the acceptance of the judgment and before the lodging of the original appeal, it shall be considered as a peripheral appeal related to the original appeal and expires upon the expiry of the latter”. This means that the law allows the lodging of peripheral appeals up until the closing of litigations, provided that the respondent has not yet accepted the judgment following the lodging of the original appeal, and that such judgment involves jurisprudence prejudicial to him, such as when one of his applications is rejected, or a judgment is issued against him in respect of an application by his opposing litigant. Confining the original appeal to the appellant’s applications before the first instance court should not debar the filing of a peripheral appeal, not only with regard to the decision in the judgment on such application, but also with regard to decision on other applications and matters to which the original appeal has not responded.

2- It is established jurisprudence of this court that deducing the existence of capacity in a claim is a matter of comprehending the facts therein, which is exclusively for the first instance judge to determine. Suffice such judge to state the truth he deems convincing, and to found his jurisprudence in that connection on reasonable grounds sufficient to support such jurisprudence.

3- Section 195 of the repealed Civil Law, corresponding to Section 403 of the current Law, specified the obligation limitation period as being fifteen years in matters not covered by a special provision.

4- The administration of common property by a partner without objection by the remaining partners renders such partner as agent for the other partners. Such implied agency endowed to the partner volunteering for the administration of such property would prevent the application of limitation between such partner and the other partners, who are to be considered as principals throughout the existence of such agency. This is because the limitation of the debt of a principal vis-à-vis his agent would only commence from the aforesaid date, following the settlement of their mutual accounts.

The Court  

Having reviewed the documents, heard the report read out by the Presiding Judge and heard the pleadings, and after due deliberation on the appeal by cassation which satisfied its formal requirements;

The facts, as revealed in the judgment appealed by cassation and other documents, may be summarised as follows. The Appellant brought the claim No (…) civil – general – applying for a judgment ordering the Respondent to pay to him the amount of 5,804,000 Riyals being the value of what he paid to the Respondent for the purpose of recovering one half of the property owned by him and was the subject-matter of dispute in another claim, and to pay 1,000,000 Riyals in compensation for material and moral damages. He stated that he was the owner of a 3145 sq m property, composed of six residential villas mortgaged to the (…) Bank to guarantee the payment of bank facilities. When the said bank went into liquidation the liquidator claimed the payment of the debt by the Appellant, who offered 3,000,000 Riyals against lifting the mortgage to enable him to sell the property, which was agreed. Accordingly, the Appellant sold the property to the (…) Bank. Upon a dispute between the Appellant and the liquidator the Appellant brought a claim for declaring the validity of the settlement agreement, and the respondent brought a claim for the rescission of the said contract. The court issued a judgment ordering the Respondent to pay to the Appellant the amount of 924,823.5 Riyals and rescinded the settlement contract. Both parties appealed, during which time the Respondent sold the entire property to a third party, prompting the Appellant to bring a recovery claim, which he obtained in respect of the property against the payment of 11,589,000 Riyals. The Appellant lodged against such judgment an appeal No 539/2007, while the Respondent lodged a counter-appeal. On 28.5.2008 the court issued a judgment admitting both appeals in form. As regards the substance, it amended the appealed judgment with respect to its first and second parts, ordering the Respondent to pay to the Appellant the amount of 5,406,107 Riyals and rejecting the other applications in both appeals. The Appellant lodged against such judgment an appeal by cassation, which was presented before this Court at the deliberation chamber, where it fixed a session for its consideration.

This appeal is based on three reasons. In the first reason the Appellant contends against the judgment appealed against by cassation its error in the application of the law, by deciding to reject the pleading against the allowing the counter-appeal by the Respondent against the application for the dismissal of the Appellant’s claim, without confining this to issuing a judgment in accord with the appealed judgment. This would invite the application of the general rules as an original appeal lodged after the prescribed time, and the issuance of a judgment forfeiting the right thereto. Accordingly, the said judgment is thereby rendered defective which necessitates its cassation.

This contention is inappropriate. Section 174 of the Procedures Law provides that “The respondent may, up until the closing of litigations, lodge a counter-appeal following the normal procedures, or by a memorandum including the reasons of his appeal. If the counter-appeal is lodged after the appeal time or after the acceptance of the judgment and before the lodging of the original appeal, it shall be considered as a peripheral appeal related to the original appeal and expires upon the expiry of the latter”. This means that the law allows the lodging of peripheral appeals up until the closing of litigations, provided that the respondent has not yet accepted the judgment following the lodging of the original appeal, and that such judgment involves jurisprudence prejudicial to him, such as when one of his applications is rejected, or a judgment is issued against him in respect of an application by his opposing litigant. Confining the original appeal to the appellant’s applications before the first instance court should not debar the filing of a peripheral appeal, not only with regard to the decision in the judgment on such application, but also with regard to decision on other applications and matters to which the original appeal has not responded. Since the judgment appealed against by cassation is in accord with this jurisprudence and has decided to allow the counter-appeal in form, it is therefore in line with proper law, and contention against such judgment with respect to this reason should be baseless.

In the second reason, the Appellant contends against the said judgment its contradiction with documentary evidence. He stated that he pleaded against the Respondent’s counter-claim that it should not be allowed because it was lodged without due capacity to apply for the yield of the property and, consequently, execute the set-off with his payment obligation. However, the said judgment rejected such pleading on the basis that it he who used to collect the yield of the property, while the documents established that the possessor, the administrator and rent collector for the property was another company with its own juridical personality and a separate, independent financial credibility, which would entail directing the claims by his opposing litigant to it and not to him. The counter-claim he brought should not have been allowed because of lack of capacity, contrary to what the judgment appealed against by cassation has ruled, which renders it defective and necessitates its cassation.

This contention is inappropriate. It is established jurisprudence of this Court that deducing the existence of capacity in a claim is a matter of comprehending the facts therein, which is exclusively for the first instance judge to determine. Suffice such judge to state the truth he deems convincing, and to found his jurisprudence in that connection on reasonable grounds sufficient to support such jurisprudence. It was evident from the papers of the judgment appealed against by cassation that it founded its decision, to reject the Appellant’s pleading against allowing the counter-claim for being brought by a person without due capacity, on the basis – as deduced from the documents of the claim – that it was the Appellant who was administering the disputed property and collecting and keeping its rent with him. The said judgment would not therefore be rendered defective for allowing the Respondent the right to claim his share against his Appellant partner regarding the amounts collected as yield from the property owned by them. Accordingly, contention in this respect becomes baseless.

In the third reason, the Appellant contends against the judgment appealed against by cassation error in the application of the law and deficiency in reasoning, by disregarding the pleading he raised of the forfeiture of the Respondent’s right to claim his share in the yield of the property equally owned by them because of the expiry of over three years before bringing his counter-claim for setting off his rights in such property with the Appellants debt owed by him. And that this renders such judgment defective and necessitates its cassation.

This contention is inappropriate. Section 195 of the repealed Civil Law, corresponding to Section 403 of the current Law, specified the obligation limitation period as being fifteen years in matters not covered by a special provision. The administration of common property by a partner without objection by the remaining partners renders such partner as agent for the other partners. Such implied agency endowed to the partner volunteering for the administration of such property would prevent the application of limitation between such partner and the other partners, who are to be considered as principals throughout the existence of such agency. This is because the limitation of the debt of a principal vis-à-vis his agent would only commence from the aforesaid date, following the settlement of their mutual accounts. It is established by the documents, according to the conclusion reached by the judgment appealed against by cassation, that the property was equally owned by the two opposing litigants, that the Appellant is the one being in possession since its sale in March 1997, and that the Respondent deserved his share in what his partner has collected as yield as of such date. Since the current claim, and the Respondent’s application for a set-off between the Appellant’s right and his right in the yield, took place prior to the expiry of the period necessary for the application of limitation, the judgment appealed against by cassation would not be erroneous by disregarding the Appellant’s pleading in this connection, and satisfying itself with the elementary judgment the conclusion of which it did not contradict in that respect.

Therefore, this contention is baseless.