Session Date: 23 June 2009

Appeal by Cassation No. 64 of 2009 – civil appeal by cassation

Judgment “exhaustion of jurisdiction” “desisting from a judgment”.

Conclusive rules, be they substantive or ancillary - invalidity of desistance therefrom – by the very court that issued the same – even where such rules are null and void or based on a void procedure.

What is established – that once a judgment is issued the issuing court shall refrain from desisting from its judgment – such principle applies to all conclusive rulings, be they substantive or ancillary, final or otherwise – for the dispute to be removed from the jurisdiction of the court it shall have been explicitly or implicitly settled – it would be the same whether such judgment is valid, null and void, or based on a void procedure.

The Court
 

Having reviewed the documents, and having heard the report read out by the Judge-Rapporteur and 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 respondents bought the claim No. 532/2005 – Legacies against the Appellants by cassation, applying for a judgments declaring the share previously owned by ......., their deceased father, in ......... Company, which amounted to one half, as part of his legacy, and to auction the same among the heirs and distribute the proceeds among them according to their deserved Sharia portions. The Counter Appellants by cassation claimed by applying that such share be included in their share in the legacy, in satisfaction of their incomplete share in the legacy resulting from a previous distribution. On 1.2.2006 the Court issued a judgment ) 1 (  declaring the 50% share previously owned by the deceased in ......... Company as part of his legacy which was not distributed – neither by accord and satisfaction nor through the court, and fixing a session for conducting a closed auction of such share among the heirs with a view to distribute the same, and ) 2 ( postponing the decision on the counter claim until necessary procedures and investigations were complete. On 25.6.2007 the Court once more ordered an auction of the disputed share which should start with 22,250,000 Riyals, provided that the winner of the auction shall deposit one quarter of the sale proceeds in the account of the deceased person’s legacy within two days of the auction, and deposit the balance within a time not exceeding two months from the date of the judgment to conduct the sale. In the case of default the difference shall be borne and the share shall be transferred to the next heir at his offered price. After the auction the court of first instance issued a judgment on 27.3.2008, first: to grant the Respondents a share in the inheritance, and the inclusion of the share of ........., deceased person, in ........... Company of 50%; secondly: obliging the Respondents to pay the balance of the sale price, being 13,306,738, in the special account of the deceased person’s legacy, within a maximum period of two months from the date of the judgment. Thirdly, quashing the counter claim as it was. The Appellants lodged an appeal No. 39/2008. On 19.3.2009 the Court of Appeal ruled in confirmation of the appealed judgment. The Appellants then 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.

The Appellants by cassation contend against the judgment appealed by cassation that it included a breach of the law and deficient reasoning. They state that they have pleaded before the Court of Appeal the invalidity of the appealed judgment, because, having issued on 25.6.2007 a judgment to conduct an auction among the heirs of the share of the deceased person in ......... Company starting with a reserved price of 222,500,000 Riyals, on condition for the the conclusion of the sale that the offeror of the highest bid shall pay one quarter of his offered price, the court of first instance reverted back and commenced an auction with a reserved price of 7,000,000 Riyals which was won by the Respondents who had offered only 220,000,000, i.e. an amount less than the reserved price specified for the commencement of the auction. The court then concluded the sale in their favour although they only paid 4,000,000 Riyals which falls short of the preconditioned quarter. By doing so the court of first instance had desisted from its judgment of 25.6.2007, and altered the conditions of the auction and the conclusion of the sale, which is beyond its mandate. Despite the importance of this defence the judgment appealed by cassation ignored it and confirmed the invalid first instance judgment. It therefore becomes defective and worthy of appeal by cassation.

This contention is appropriate. Once issued, a judgment cannot then be desisted from by the court that issued it. This rule applies on all conclusive judgments, be they substantive or ancillary, final or or otherwise. For the dispute to be outside the mandate of the court it shall have been finally settled, either explicitly or implicitly, whether its judgment was valid, void or based on a void procedure. It is established, by virtue of the papers, that the Appellants have pleaded their defence as shown in their contention. The judgment appealed by cassation had confirmed the judgment of the court of first instance without sufficiently considering such defence or adequately analysing it. It rejected the said fence on the basis of deficient reasoning, insufficient to justify its rejection. The defence was substantial and would have altered the opinion on the claim. The judgment appealed by cassation is therefore substantially defective on appeal by cassation with no need to consider the remaining reasons for such appeal.