Session of 3 December 2008

Civil Cassation Appeal by Cassation No. 110/2008
 

(1-3) Cassation “interest in the appeal by cassation: theoretical interest”  “reasons of appeal by cassation: what does not qualify as a reason for appeal by cassation: contention that provides a mere theoretical interest” “the power of the first instance court” “the effect of judgment cassation and referral”.

(1) The legal matter in connection to which the referral court should follow the Cassation Court – S. 22(3) of Law No 12 of 2005 on Appeal by Cassation in Non-Criminal Matters – its intention – what has been presented before the Cassation Court and on which it deliberately and intelligibly stated its opinion, thereby it acquired the res judicata status – that the referral court shall not, upon retrial of the claim, violate such status – other than that – that litigants and the dispute are reverted to the status quo before the issuance of the cassation judgment – the referral court may found its jurisprudence on a new understanding of the facts of the claim, to be derived from all its elements.

(2) Pure theoretical interest – that it is not qualified as a basis for appeal by cassation.
 

(3) The Cassation Court has the power to lend to the facts established in the judgment their correct legal adaptation so long as it relies only on what the first instance court has derived out of such facts – (an example relating to a donation).
 

(4-6) Contract – “a donation contract” – law “applicable law” – donation “its rule” “revocation of a donation”.
 

(4) That the former Civil Law No 16 of 1971, under which the transaction took place, did not organize the donation contract – its effect – that the provisions of Islamic Sharia shall be applied in this connection.
 

(5) Donation under the Hanbali school – its rule – its revocation – its condition.
 

(6) Establishment that the two Appellants did not take delivery of any of the properties donated to them by the Respondent, which they claim, the disputation by the latter against them regarding their application for the delivery of such properties to them, and their denial of any right for them therein – its consequence – considering this as revocation of the donation – its effect – retrospective rescission of the donation and considering it as non-existent ab initio – that the appellants brought their claim on the bass that the donation was existing and binding on the Respondents – baseless – the jurisprudence of the judgment appealed against by cassation dismissing the claim – contention against it only derives a pure theoretical interest which does not qualify as a reason for appeal by cassation – the reason for this.
 

1- The last paragraph of Section 22 of the Law No 12 of 2005 on the Situations and Procedures of Appeal by Cassation in Non-Criminal Matters provides that “… and the court to which the case is referred shall be bound by the judgment issued by the Cassation Court in matters decided by it”. However, since what is intended by ‘matters’ in this connection is the legal matters presented before the Cassation Court and on which it deliberately and intelligibly stated its opinion, thereby acquiring the status of res judicata in that connection and to the extent of matters it decided upon. The referral court shall not, upon retrial of the claim, violate such status. Otherwise, the litigants and the dispute should revert to the status quo before the issuance of the cassation judgment. The referral court may, in this regard, found its jurisprudence on a new understanding of the facts of the claim, to be derived from all its elements.
 

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

3- It is established that the Cassation Court has the power to lend to the facts established in the judgment their correct legal adaptation so long as it relies only on what the first instance court has derived out of such facts.
 

The facts, as narrated by the judgment appealed against by cassation, are that the father of the two Appellants died during the life of his father. Upon the death of the latter, the grandfather of the two Appellants, one of his sons presented on 16.5.1995 an application to the Sharia Court, on behalf of himself and as an agent for the others, applying for the distribution of the grandfather’s legacy among his heirs. He stated in the application that he and the heirs agree that the children of their deceased brother, the Respondents, be given the inheritance that would have been deserved by their father in the legacy, as if he were alive. He reiterated the same meaning before the court, in the minutes of the session dated 1.8.1995. By virtue of this agreement the Appellant received their share of the cash amounts left by their grandfather. The Respondents, however, revoked their previous agreement, denied the rights of the Appellants and refused to deliver to them any part of their grandfather’s legacy including real estates, stocks, vehicles and plate numbers of taxi vehicles. The agreement by the Respondents to give the children of their brother some of their grandfather’s legacy of which they would not inherit anything, due to the decease of their father before the decease of the latter’s father, indicates that the Respondents for no consideration transferred the ownership of part of property which they acquired and owned by way of inheritance from their father. The said transaction is in reality a donation.
 

4- Since this donation – the transaction – has taken place in 1995, during the application of the Civil and Commercial Matters Law No 16 of 1971, the provisions of which do not organize the donation contract, the substantive rules of Islamic Sharia should be applied in this connection.
 

5- The rule of donation under Imam Ahmed bin Hanbal’s school is that it does not transfer ownership nor be binding except upon delivery which is permitted by the donor. Before delivery, ownership remains with the donor, who may revoke such donation if he so wishes. This means that to the Hanbalis, donation has two stages. The first is the contract phase, which has no effect and therefore would not transfer ownership, and is not binding and therefore revocable. The second phase is the delivery phase, whereby the contract becomes effective and ownership transfers, and binding, except in the case of a donation by a father to his child.
 

6- The Respondents admit that they did not take delivery of any part of the properties donated to them by the Respondents as demanded. The conduct of the Respondents in the claim, their disputation against the Appellants regarding the delivery of such properties, and their denial of any right to them in the same, can only be understood as revocation of the donation. Since, as aforesaid, it is permissible to revoke an undelivered donation, and since revocation of a donation results in its retrospective rescission, such donation will be deemed non-existent ab initio. Accordingly, the applications on the basis of which the claim was brought, which were founded on that the donation was existing and binding on the Respondents, should be rejected. Since the judgment appealed against by cassation has issued a judgment rejecting such applications, the Appellants interest in the contention against the grounds for the jurisprudence of such judgment would be mere theoretical interest deserving no deference. Should such contentions be validated, the appealed judgment subjected to cassation, and the case referred to the Court of Appeal, rejection would be its definite destiny. 

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 Appellants brought the claim No (…) – legacies – against the Respondents, applying for a judgment, first, appointing an expert to examine the legacy of the deceased person (…) in order to specify the share of the Appellants therein, and the extent to which it can be distributed, and the amount of yield thereof since 16.5.1995; secondly, separating and setting aside the share of the claimants in the chattels of such legacy, and delivering such share to them, and in the case distribution was not possible the chattels were to be sold by public auction and their share in the proceeds be given to them; and thirdly, ordering the Respondents to pay the yield of their share in the legacy as of 16.5.1995 and until the issuance of judgment in the claim. They states that the Respondents agreed on 16.6.1995 that the Appellants deserved an amount equivalent to the share of their father as a male child in the legacy of his father, including cash amounts, real estate, stocks, vehicles and plate numbers of taxi vehicles. The cash was distributed but the distribution of other chattels was postponed until the issuance of title deeds. The Respondents, however, revoked what they had agreed to, and dishonoured the delivery of their share in the said chattels, thereby prompting their claim. The court issued a judgment that the claim could not be entertained due to a previous judgment thereon by virtue of the judgment No (…) and its appeal No (…). The Appellants lodged an appeal No 16/2007 and the court issued a judgment confirming the appealed judgment. The Appellants lodged against such judgment before the Cassation Court an appeal by cassation No 79/2007 on which the Court issued a cassation judgment. Following an acceleration of the claim process the Court of Appeal issued a judgment on 2.6.2008 cancelling the appealed judgment and dismissing the claim. The Appellants lodged against the said 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 by cassation is based on two reasons. In the second reason the Appellants contend against the judgment appealed against by cassation that it violated the law. They state that the said judgment did not observe what the Cassation Court judgment has decided in connection to the appeal by cassation No 79/2007, and that it violated the argumentativeness of the judgment issued in connection to the distribution document No (…) - legacies register, which renders such judgment defective and necessitates its cassation.

This contention is inappropriate. The last paragraph of Section 22 of the Law No 12 of 2005 on the Situations and Procedures of Appeal by Cassation in Non-Criminal Matters provides that “… and the court to which the case is referred shall be bound by the judgment issued by the Cassation Court in matters decided by it”. However, since what is intended by ‘matters’ in this connection is the legal matters presented before the Cassation Court and on which it deliberately and intelligibly stated its opinion, thereby acquiring the status of res judicata in that connection and to the extent of matters it decided upon. The referral court shall not, upon retrial of the claim, violate such status. Otherwise, the litigants and the dispute should revert to the status quo before the issuance of the cassation judgment. The referral court may, in this regard, found its jurisprudence on a new understanding of the facts of the claim, to be derived from all its elements. The cassation judgment considered it a defect in the judgment which was made subject to cassation that it confirmed the elementary judgment in dismissing the claim for a previous settlement by virtue of judgment No (…) and its appeal No (…), despite the difference of the reason in the two claims. This means that the argumentativeness of the judgment made subject to cassation was limited to its decision on the difference of the reason in the two claims, without tackling any other point. The judgment appealed against by cassation followed the former in connection to this legal matter, observed its relevant jurisprudence, issued a judgment quashing the elementary judgment, entertained the subject-matter of the claim and decided on it. Accordingly, contention against such judgment that it did not observe the cassation judgment would not be appropriate.
A judgment does not acquire any argumentativeness beyond the matters so judged, and the distribution document referred to in the reason of contention was confined to the distribution of the cash amounts left by the deceased relative of the Respondents. Accordingly, such document would not have any argumentativeness regarding the current dispute, and the entire contention therefore becomes baseless.

In the first reason the Appellants contend against the judgment appealed against by cassation that it involved violation of the law and deficiency. They stated that the Respondents have uttered a binding declaration in the application to the Sharia Court on 16.5.1995, that the Appellants deserved the share of their father, as if he were alive, in all the particulars of the legacy of their grandfather. However, the judgment appealed against by cassation confined the evidential scope of this declaration to the cash component of the grandfather’s legacy, and no more. It also disregarded the fact that the Respondents repeated the same declaration in the minutes taken at the session dated 1.8.1995, before the Sharia Court, and the records of the judgment of the said Court, issued on 7.8.1995, included what proves the issuance of the said declaration. This would render the judgment defective and necessitates its cassation.
This contention is inadmissible. A pure theoretical interest does not qualify as a basis for appeal by cassation. The Cassation Court has the power to lend to the facts established in the judgment their correct legal adaptation so long as it relies only on what the first instance court has derived out of such facts.
The facts, as narrated by the judgment appealed against by cassation, are that the father of the two Appellants died during the life of his father. Upon the death of the latter, the grandfather of the two Appellants, one of his sons presented on 16.5.1995 an application to the Sharia Court, on behalf of himself and as an agent for the others, applying for the distribution of the grandfather’s legacy among his heirs. He stated in the application that he and the heirs agree that the children of their deceased brother, the Respondents, be given the inheritance that would have been deserved by their father in the legacy, as if he were alive. He reiterated the same meaning before the court, in the minutes of the session dated 1.8.1995. By virtue of this agreement the Appellant received their share of the cash amounts left by their grandfather. The Respondents, however, revoked their previous agreement, denied the rights of the Appellants and refused to deliver to them any part of their grandfather’s legacy including real estates, stocks, vehicles and plate numbers of taxi vehicles. The agreement by the Respondents to give the children of their brother some of their grandfather’s legacy of which they would not inherit anything, due to the decease of their father before the decease of the latter’s father, indicates that the Respondents, for no consideration, transferred the ownership of part of property which they acquired and owned by way of inheritance from their father. The said transaction is in reality a donation. Since this donation – the transaction – has taken place in 1995, during the application of the Civil and Commercial Matters Law No 16 of 1971, the provisions of which did not organize the donation contract, the substantive rules of Islamic Sharia should be applied in this connection.

The rule of donation under Imam Ahmed bin Hanbal’s school is that it does not transfer ownership nor be binding except upon delivery which is permitted by the donor. Before delivery, ownership remains with the donor, who may revoke such donation if he so wishes. This means that to the Hanbalis, donation has two stages. The first is the contract phase, which has no effect and therefore would not transfer ownership, and is not binding and therefore revocable. The second phase is the delivery phase, whereby the contract becomes effective and ownership transfers, and binding, except in the case of a donation by a father to his child.

The Respondents admit that they did not take delivery of any part of the properties donated to them by the Respondents as demanded. The conduct of the Respondents in the claim, their disputation against the Appellants regarding the delivery of such properties, and their denial of any right to them in the same, can only be understood as revocation of the donation. Since, as aforesaid, it is permissible to revoke an undelivered donation, and since revocation of a donation results in its retrospective rescission, such donation will be deemed non-existent ab initio. Accordingly, the applications on the basis of which the claim was brought, which were founded on that the donation was existing and binding on the Respondents, should be rejected. Since the judgment appealed against by cassation has issued a judgment rejecting such applications, the Appellants interest in the contention against the grounds for the jurisprudence of such judgment would be mere theoretical interest deserving no deference. Should such contentions be validated, the appealed judgment subjected to cassation, and the case referred to the Court of Appeal, rejection would be its definite destiny.
According to the aforesaid, this appeal by cassation should be dismissed.