Session Date: 3 November 2009

Appeal by Cassation No. 77 of 2009 – civil appeal by cassation

(1) Cassation “the powers of the Cassation Court – public order “matters relating to public order”.

The fundamentals of the judiciary and its procedures – its relation to public order – that the Cassation Court should observe the same – the reasons for this –

(2) Nullification “nullification of judgment” – judgment “its particulars: names and attributes of the parties”.

Deficiency or gross mistake in the names and attributes of the parties that causes the nullification of judgment – its prerequisites – causing ambiguity about a party or confusion of his identity that precludes true identification of his person, or its replacement with another person who has nothing to do with the litigation – Section 126 Procedures – this cannot be disregarded with because the name of the party could be realized from any other document in the claim, even where such is an official document – the reason for this.

1-    It is established jurisprudence of this Court that all the rules relating to the fundamentals and procedures of the judicial system are connected to public order which renders it mandatory on the Cassation Court to ensure their observation, so much so that ignorance of such rules by the parties, their failure to appeal by cassation against their breach, or even their agreement in contradiction thereof, should not preclude the application of such rules to the litigation before the court, without any negative effect thereon.

2-    By providing that a judgment shall include the names, surnames and attributes of the parties, Section 126 of the Procedures Law aims to the identification of the persons and attributes of people who are parties to the litigation in the claim the subject-matter of the judgment, which identification should be sufficient enough to remove ignorance and confusion, so that no ambiguity should affect the personality of the party in whose favour the judgment was issued, or a gross mistake in the names and attributes of the parties.  The intention of the Section is directed towards such deficiency which results in ignorance about the litigating party or confusion in the identification of his person that precludes true identification of his person, or replacement with another person who has nothing to do with the claim litigation. This cannot be disregarded because the name of the party could be realized from any other document in the claim, even where such is an official document, since a judgment should be self-inclusive of its conditions of validity, without reliance on any external evidence to complete any deficiency therein relating to material information legally needed for the validity of such judgment. The facts in the claim are that the heirs ofwere among the persons who brought the elementary claim, who were included, by name, in the elementary judgment and the statement of appeal. Thereafter, the judgment appealed against by cassation issued without including in its preamble and notes the names of five of them, namely…, …, ….. females .....and ... This is apt to cause doubts regarding the statuses of the said females, and the judgment would have disregarded material information thereof and should therefore be nullified.

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. 1723/2007 – civil – general – applying for a judgment declaring the validity of their title to the land detailed in the statement of claim, ordering the last Respondent to cancel the title deed of such land which was issued in the names of the Respondents, and to issue a title deed in the name of the Appellants. As a precautionary application, they applied for the deputation of an expert to ascertain the possession of the land and its boundaries. The Appellants stated that their deceased relative owned a land situated in …, owned through possession and development of barren land, as well as the cultivation of much of such land since 120 years. However, the Real Estate Registration Committee registered a part of such land to the deceased relative of the Respondents without legal grounds. Therefore they brought the claim. The court issued a judgment dismissing the claim. The Appellants then lodged against such judgment an appeal No. 722/2008. On 25.3.2008 the court issued a judgment confirming the appealed judgment. The Appellants lodged an appeal by cassation against such judgment, which was presented before this Court at the deliberations chamber and a session was fixed for its consideration.

In their second reason of Appeal by cassation against the judgment so appealed the Appellants contend that such judgment is null and void because it failed to include some names of the heirs of the deceased person … in the judgment document, although such names were included in the elementary judgment and the statement of appeal, which renders the judgment appealed by cassation null and void and worthy of such appeal.

It is established jurisprudence of this Court that all the rules relating to the fundamentals and procedures of the judicial system are connected to public order which renders it mandatory on the Cassation Court to ensure their observation, so much so that ignorance of such rules by the parties, their failure to appeal by cassation against their breach, or even their agreement in contradiction thereof, should not preclude the application of such rules to the litigation before the court, without any negative effect thereon. By providing that a judgment shall include the names, surnames and attributes of the parties, Section 126 of the Procedures Law aims to the identification of the persons and attributes of people who are parties to the litigation in the claim the subject-matter of the judgment, which identification should be sufficient enough to remove ignorance and confusion, so that no ambiguity should affect the personality of the party in whose favour the judgment was issued, or a gross mistake in the names and attributes of the parties.  The intention of the Section is directed towards such deficiency which results in ignorance about the litigating party or confusion in the identification of his person that precludes true identification of his person, or replacement with another person who has nothing to do with the claim litigation. This cannot be disregarded because the name of the party could be realized from any other document in the claim, even where such is an official document, since a judgment should be self-inclusive of its conditions of validity, without reliance on any external evidence to complete any deficiency therein relating to material information legally needed for the validity of such judgment. The facts in the claim are that the heirs of … were among the persons who brought the elementary claim, who were included, by name, in the elementary judgment and the statement of appeal. Thereafter, the judgment appealed against by cassation issued without including in its preamble and notes the names of five of them, namely…, …, …..,  females… and…This is apt to cause doubts regarding the statuses of the said females, and the judgment would have disregarded material information thereof resulting in its nullification, and it should therefore be nullified on the basis of this reason, without the need to consider the rest of the reasons