Session of 21October 2008

Civil Cassation Appeal by Cassation No. 89 / 2008

) 2, 1 ( Judgment “its argumentativeness” stating the grounds for the judgment: defects in argumentation: error in the application of the law: what is not considered as such”.

) 1 ( Judgments and decisions by Sharia Courts which were issued before the unification of the two branches of the Qatari Judiciary – their acquiring of argumentativeness – that no litigation should take place on matters decided upon by such courts and settled between the opposing litigants – the reason for this.

) 2 ( Where the Sharia Court has decided upon a claim for the division of legacy left by the deceased person relative to the Appellants, the determination of the shares of the deserving heirs by way of share distribution document,and the settlement of the matter among the opposing parties – irrelevant.

1- The Qatari judiciary was jurisdictionally divided between two different branches, the first of which being the Sharia Courts and the second being the courts of justice. While the latter are governed by promulgated procedural and substantial rules, the Sharia Courts were not. The mater was left for the court to decide or the Chief of Sharia Courts to direct. They were generally not subjected to a single rule or a fixed principle. Judgments and rules in such Courts accord or differ subject to the discretion of the person in charge, who had decisive decision on the propriety of the same. The Law No 10 of 2003 on the Judicial Authority brought the Qatari courts under a single jurisdictional unit, where the Supreme Judicial Council presides over the courts, all of which becoming subject to the procedural rules including legislation on the judicial system, which determines the types and hierarchy of courts, on jurisdiction which determine their powers and the types of disputes to be entertained by each court, on procedures to be followed by the litigants when presenting their disputes before the courts and what the court should observe in settling such disputes, including the formalities of bringing a claim or pleading therein, on obstacles affecting the proceedings and the means of removing the same, on the preparation of judgments, the grounds of such judgment and the pronunciation of the same, and the means of appealing such judgments and executing them, and on the obstacles before such execution, and the means of resolving such obstacles. The history of Qatari Sharia courts, as aforesaid, definitely reveals the absence of any fixed, absolute rule governing the abovementioned procedures. To the contrary, litigation was made subject, as regards its procedures and the argumentativeness of judgments, to the discretion of the trial court and the directions of the Chief of Sharia Courts, which certainly differ subject to the time of issuance and the person in charge.

The difference of these two judicial epochs, however, would not endow either epoch with any special status over the other, or empower the latter over the former. Indeed, every era has its own means of reform, suitable to its conditions and supportive to its people, which means justifies the sustainability of its judgments, the superiority of its jurisprudence and the appreciation of the efforts of those in charge. This would mandate reliance on judgments and decisions of the Sharia Courts which were issued subject to what was then applicable, so long as such judgments and decisions have settled the relevant disputes and remained sustainable regarding the relevant litigation by the parties. It is not appropriate that such litigants pursue fresh adjudication under the unified judicial system, thereby reaching conclusions different from what has already been settled under the Sharia judicial system. However, as regards disputes which remain until the unification of the judiciary, or those initiated under such unified system, their procedures should be subject to the rules of procedure which govern such disputes.

2- The Sharia Court decided upon the legacy of the deceased person relative of the Appellants, and determines the shares of the deserving heirs by way of distribution document No ) … (, issued on ) … (, and the beneficiary stakeholders, including the Appellants, treated matters according to the settlement of their disputes, with such matters remaining settled for several years before the current claim was brought. This would definitely determine that the litigation among the heirs was settled, according to what was applicable to similar disputes. They should not, therefore, be reintroduced. The judgment appealed against by cassation is in accord with the aforesaid conclusion, and contention against such judgment under this reason is therefore irrelevant and, accordingly, baseless. 

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 ) … ( civil – general – applying for a judgment ordering the Respondents to repay the amounts received by each of them as compensation paid by the state for the expropriation of the disputed property for public utility, and ordering the First Respondent to repay the profits and interest obtained or which he failed to obtain, together with compensation. The stated that they came to know of listing the disputed property among the legacy of Sheikh ) … ( the deceased father of the two opposing litigants, but they later came to know that it was owned to them according to the evidence of the real estate records before it was expropriated for public utility with compensation allocated for them. However, the property was included in the shares with no righteous ground, following the alteration of the owner’s name to be that of the deceased person. The Appellants accordingly brought the claim. The court issued a judgment that the claim may not be entertained because it was already decided upon in a claim for the distribution of the legacy of the deceased person relative of the litigants, which was issued by the Sharia Court in the form of a distribution document No ) … ( dated 20.6.1981, and confirmed by the objection judgment issued on 30.6.1981. The Appellants lodged an appeal No 331/2007 and, on 30.3.2008, the court issued a judgment confirming the appealed judgment. The two Appellants lodged against such judgment an appeal by cassation, which was presented before this Court at the deliberation chamber, where a session was fixed for its consideration.

This appeal is based on four reasons in which the two Appellants contend against the judgment appealed against by cassation that it erred in the application of the law, by considering that the distribution judgment had acquired a res judicata status, and based its jurisprudence thereon that the claim may not be considered due to previous settlement of the same by virtue of the distribution document No ) … ( issued on 20.6.1981, while such document was a mere decision by the judge issuing it, which did not acquire any res judicata status, in addition to differences in the reason and litigants between the two disputes, thereby rendering such judgment defective and necessitates its cassation.

This contention is inappropriate. The judiciary was jurisdictionally divided between two different branches, the first of which being the Sharia Courts and the second being the courts of justice. While the latter are governed by promulgated procedural and substantial rules, the Sharia Courts were not. The mater was left for the court to decide or the Chief of Sharia Courts to direct. They were generally not subjected to a single rule or a fixed principle. Judgments and rules in such Courts accord or differ subject to the discretion of the person in charge, who had decisive decision on the propriety of the same.Judgments and rules in such Courts accord or differ subject to the discretion of the person in charge, who had decisive decision on the propriety of the same.The Law No 10 of 2003 on the Judicial Authority brought the Qatari courts under a single jurisdictional unit, where the Supreme Judicial Council presides over the courts, all of which becoming subject to the procedural rules including legislation on the judicial system, which determines the types and hierarchy of courts, on jurisdiction which determine their powers and the types of disputes to be entertained by each court, on procedures to be followed by the litigants when presenting their disputes before the courts and what the court should observe in settling such disputes, including the formalities of bringing a claim or pleading therein, on obstacles affecting the proceedings and the means of removing the same, on the preparation of judgments, the grounds of such judgment and the pronunciation of the same, and the means of appealing such judgments and executing them, and on the obstacles before such execution, and the means of resolving such obstacles. The history of Qatari Sharia courts, as aforesaid, definitely reveals the absence of any fixed, absolute rule governing the abovementioned procedures. To the contrary, litigation was made subject, as regards its procedures and the argumentativeness of judgments, to the discretion of the trial court and the directions of the Chief of Sharia Courts, which certainly differ subject to the time of issuance and the person in charge.The difference of these two judicial epochs, however, would not endow either epoch with any special status over the other, or empower the latter over the former. Indeed, every era has its own means of reform, suitable to its conditions and supportive to its people, which means justifies the sustainability of its judgments, the superiority of its jurisprudence and the appreciation of the efforts of those in charge. This would mandate reliance on judgments and decisions of the Sharia Courts which were issued subject to what was then applicable, so long as such judgments and decisions have settled the relevant disputes and remained sustainable regarding the relevant litigation by the parties. It is not appropriate that such litigants pursue fresh adjudication under the unified judicial system, thereby reaching conclusions different from what has already been settled under the Sharia judicial system. However, as regards disputes which remain until the unification of the judiciary, or those initiated under such unified system, their procedures should be subject to the rules of procedure which govern such disputes.

The Sharia Court decides upon the legacy of the deceased person relative of the Appellants, and determines the shares of the deserving heirs by way of distribution document No ) … (, issued on ) … (, and the beneficiary stakeholders, including the Appellants, treated matters according to the settlement of their disputes, with such matters remaining settled for several years before the current claim was brought. This would definitely determine that the litigation among the heirs was settled, according to what was applicable to similar disputes. They should not, therefore, be reintroduced. The judgment appealed against by cassation is in accord with the aforesaid conclusion, and contention against such judgment under this reason is therefore irrelevant and, accordingly, baseless.