Session of 3 December 2008
Civil Cassation Appeal by Cassation No. 124/2008
 
) 1 ( Claim “adaptation of a claim” – the first instance court “its power in relation to the adaptation of the claim”.
The first instance judge – his obligation to endow the claim with proper description and apply the correct legal adaptation thereto – what matters being the reality of the objective behind the applications presented therein within the limits of the facts on which such applications are based – ) an example on reasonable adaptation by the court of a claim for the rescission of a marriage contract for lack of equivalence (.
 
) 2 ( Appeal “appeal judgment: reasoning in an appeal judgment” – judgment “its reasoning”.
The Court of Appeal – its failure to respond to the reasons of the elementary court judgment which it quashed – its condition – that it founds its jurisprudence on sufficiently supportive grounds.
 
) 3-5 ( Cassation “interest in the appeal by cassation” “reasons of the appeal by cassation: a reason which is inappropriate, the irrelevant reason” – judgment “its reasoning: what does not renders it defective: extra reasons, claim “among the conditions for its admissibility: interest”.
 
) 3 ( That is mandatory to state the reason of contention against the grounds on the basis of which the judgment founded its jurisprudence, without which no such jurisprudence would be founded – where the contention is inappropriately stated in the jurisprudence of the judgment appealed against by cassation – inadmissible.
 
) 4 ( Interest – a condition for the admission of the appeal by cassation and the claim – its requirement in the appeal by cassation – that the judgment appealed against by cassation has caused damage to the appellant – failure of the aforesaid – its effect – inadmissibility of the appeal by cassation.
 
) 5 ( Founding the judgment on reasons sufficiently supporting its jurisprudence – contending against it as defective for excessive contents – irrelevant.
 
1- It is established that the first instance judge is obliged to endow the claim with proper description and apply the correct legal adaptation thereto. What matters being the reality of the objective behind the applications presented therein within the limits of the facts on which such applications are based. It is clear from the statement of the claim that what the Appellant stated therein in connection to the circumstances of the Respondents’ marriage, and that such marriage was contracted without his knowledge or consent, was a mere unsubstantiated statement, which do not indicate that he used such a statement as a basis for the marital separation application. The only ground on which such application was based is that the Second Respondent was not equivalent to the First Respondent. The court is therefore required to observe such application and the legal reason on which it was based, so long as it has not altered or amended during the litigation proceedings within the limits allowed under the Procedures Law. The minutes of the session held on ) … ( as referred to in the reason for contention did not include any indication that a new ground was added to the ground on which the claim was based as aforesaid. Accordingly, the Court of Appeal is not blamable if it endowed the claim its proper description, adapted it as a claim for marriage rescission due to lack of equivalence, and on that basis decided thereon.
 
2- It is established that the Court of Appeal is not obliged to respond to the reasons of the judgment which it decided to quash, so long as it founds its jurisprudence on sufficiently supportive grounds, as it is the case with this claim.
 
3- It is established jurisprudence of this Court that it is mandatory to state the reason for contending against the foundation on which the judgment appealed against by cassation based its jurisprudence, without which such jurisprudence would not have been founded. It is clear from the judgment appealed against by cassation that, after adapting the claim as one for the rescission of a marriage contract for lack of equivalence, it considered the expiry of over one year after the marriage, pregnancy of the First Respondent and her delivery of a child in lawful wedlock, as a foundation for its jurisprudence in quashing the claim, in accord with the provision of Section 35 of the Family Law No 22 of 2006. The marriage of the Respondents was not, in relation to its establishment and validity, considered by the judgment appealed against by cassation, nor should it have considered it, because it falls outside the ambit of the claim. It therefore did not found its jurisprudence thereon. Accordingly, contention using this reason is inappropriately related to the jurisprudence of the said judgment, and is therefore inadmissible.
 
4- It is established that interest is a condition for the admission of an appeal by cassation. It is equally a condition for the admission of a claim. The test of interest in an appeal by cassation is that the judgment so appealed should have caused damages to the appellant. In the current appeal by cassation it makes no difference as regards the Appellant that the statement of the judgment so appealed ruled the claim inadmissible, or rejected it, since the outcome is the same in both cases. Accordingly, contending against such judgment as defective for issuing a judgment rejecting the claim and not deciding its inadmissibility should be inadmissible, for lack of interest therein.
 
5- The judgment appealed against by cassation decided that the Appellant’s right to apply for the rescission of the marriage contract was lost for the expiry of more than one year since its execution and because the wife became pregnant and gave birth to a boy. These reasons were alone sufficient to support the judgment’s jurisprudence in rejecting the claim. The extra statement relating to the knowledge by the Appellant of the marriage of the Respondents should be considered as excessive reports without which the judgment would be valid, and would not affect its jurisprudence. Therefore, contention against such judgment is irrelevant.

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 ) … ( – family – general – against the two Respondents applying for a judgment to separate them. He stated that he is the brother of the First Respondent’s father, and her legal guardian. She got married without his knowledge from the Second Respondent who is not her equivalent, prompting him to bring the claim. The first instance court issued a judgment rescinding their marriage contract, and they lodged an appeal No 13/2008. On 1.6.2008 the Court of Appeal issued a judgment quashing the appealed judgment and rejecting the claim. The Appellant 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 three reasons. In the first reason the Appellant contends against the appealed judgment that it violated documentary evidence and involved contradiction and deficient reasoning. He stated that he applied, in the initial statement of claim, for the rescission of the two Respondents’ marriage for two reasons. The first reason is that such marriage was conducted without his permission or knowledge, although he is the guardian of the First Respondent and responsible for her marriage contracting. The second reason is that the Second Respondent was not equivalent to his sister. The first instance court understood this fact and based its rescission jurisprudence on that the First Respondent contracted her own marriage without her guardian, thereby rendering such contract voidable. However, the Court of Appeal ruled that the rescission application was based on a single reason, namely, the lack of equivalence, thereby violating what has been established in the statement of claim, the minutes of the session held on 11.11.2007 before the first instance court, and in part of its judgment, without scrutinizing the reasons of the elementary judgment which it quashed. The aforesaid would render the judgment appealed against by cassation defective and necessitate its cassation.

This contention is inappropriate. The first instance judge is obliged to endow the claim with proper description and apply the correct legal adaptation thereto. What matters being the reality of the objective behind the applications presented therein within the limits of the facts on which such applications are based. It is clear from the statement of the claim that what the Appellant stated therein in connection to the circumstances of the Respondents’ marriage, and that such marriage was contracted without his knowledge or consent, was a mere unsubstantiated statement, which do not indicate that he used such a statement as a basis for the marital separation application. The only ground on which such application was based is that the Second Respondent was not equivalent to the First Respondent. The court is therefore required to observe such application and the legal reason on which it was based, so long as it has not altered or amended during the litigation proceedings within the limits allowed under the Procedures Law. The minutes of the session held on 11.11.2007, as referred to in the reason for contention, did not include any indication that a new ground was added to the ground on which the claim was based as aforesaid. Accordingly, the Court of Appeal is not blamable if it endowed the claim its proper description, adapted it as a claim for marriage rescission due to lack of equivalence, and on that basis decided thereon. Accordingly, considering the judgment appealed against by cassation as defective for violation of documentary evidence is not appropriate. The judgment also not defective for stating, in the course of reiterating the contents of the statement of claim, the testimony of the Appellant in connection to the circumstances of the tow Respondents’ marriage. This is because the said judgment did not use such reasons as a foundation for its jurisprudence, so that it may be said that its reasons were contradictory inter se, leading to ignorance of the grounds on which it founded its jurisprudence. As regards the issue raised by the Appellant that the Court of Appeal quashed the first instance judgment without scrutinizing its reasons, including in connection to his contention that among the reasons on which the claim applications were founded was that the First Respondent conducted her marriage of her own, without involving her guardian, it is established in this connection that the Court of Appeal is not obliged to respond to the reasons of the judgment which it decided to quash, so long as it founds its jurisprudence on sufficiently supportive grounds, as it is the case with this claim. The entire contention is therefore baseless.

In the second reason the Appellant contends against the judgment appealed against by cassation that it erred in the application of the law, and involved bad argumentation. He stated that the judgment admitted the existence of marriage between his sister, the First Respondent, and the Second Respondent, although the documents they presented in proof of such marriage were issued in a foreign country, and should therefore be invalid as evidence of the marriage or its validity, according to the provisions of the Qatari law and the principles of Islamic Sharia.

This contention is inadmissible. It is established jurisprudence of this Court that it is mandatory to state the reason for contending against the foundation on which the judgment appealed against by cassation based its jurisprudence, without which such jurisprudence would not have been founded. It is clear from the judgment appealed against by cassation that, after adapting the claim as one for the rescission of a marriage contract for lack of equivalence, it considered the expiry of over one year after the marriage, pregnancy of the First Respondent and her delivery of a child in lawful wedlock, as a foundation for its jurisprudence in quashing the claim, in accord with the provision of Section 35 of the Family Law No 22 of 2006. The marriage of the Respondents was not, in relation to its establishment and validity, considered by the judgment appealed against by cassation, nor should it have considered it, because it falls outside the ambit of the claim. It therefore did not found its jurisprudence thereon. Accordingly, contention using this reason is inappropriately related to the jurisprudence of the said judgment, and is therefore inadmissible.

In the first aspect of the third reason, the Appellant contends against the judgment appealed against by cassation that it violated the law. He stated that the judgment founded its jurisprudence on the provisions of Section 35 of the Family Law which provides for the loss of the right to apply for the rescission of the marriage contract due to lack of equivalence, because of the pregnancy of the wife and the expiry of more than one year since its execution. Since the loss of right to the claim results in its inadmissibility, the rejection of such claim by the judgment appealed against by cassation should be defective and worthy of cassation.

This contention is inappropriate. Interest is a condition for the admission of an appeal by cassation. It is equally a condition for the admission of a claim. The test of interest in an appeal by cassation is that the judgment so appealed should have caused damages to the appellant. In the current appeal by cassation it makes no difference as regards the Appellant that the statement of the judgment so appealed ruled that the claim was inadmissible, or rejected it, since the outcome is the same in both cases. Accordingly, contending against such judgment as defective for issuing a judgment rejecting the claim and not deciding its inadmissibility should be inadmissible, for lack of interest therein.

In the second aspect of the third reason the Appellant contends against the judgment appealed against by cassation that it involved bad argumentation, because it considered the expiry of time as circumstantial evidence that the Appellant knew of the marriage of his sister. Such evidence is based on conjecture, and is not conclusive on the matter intended to be proven, which would render such judgment defective and worthy of cassation.

This contention is inadmissible. The judgment appealed against by cassation has concluded that the Appellant’s right to apply for the rescission of the marriage contract was lost due to the expiry of more than one year from its conclusion, and because of the pregnancy and delivery of a boy by the wife. These reasons are alone sufficient to support its jurisprudence in rejecting the claim. Accordingly, the reiteration by such judgment regarding the knowledge of the Appellant of the marriage of the Respondents would be a mere excessive utterance without which the judgment would still be valid, and would not affect its jurisprudence. Therefore, contention against such judgment becomes irrelevant.
According to the aforesaid, this appeal by cassation should be rejected.