Session Date: 3 November 2009

Appeal by Cassation No. 65 of 2009 – civil appeal by cassation

) 1 ( Compensation “compensation for expropriation for the public utility” – ownership “transfer of ownership” “encumbrances on title: expropriation for public utility” “disputes over title” – expropriation for public utility.

Allocation of privately owned real estate for public utility – that they should be expropriated from their owners and first transferred to the state against compensation to such owners – Sections 839) 1 ( and 840 – Civil, Section 2) 2 ( of Law No. 10 of 1987 on Public and Private State Property, and Section 2 of Law No. 13 of 1988 on the Temporary Expropriation and Dispossession of Real Estate for Public Utility – the application of this rule in cases where the state purchases the remaining part of the expropriated real estate for inability to use the same – Section 19 of the latter Law.

) 2 ( Appeal by cassation “the powers of the court of cassation” – judgment “its reasoning: defects in argumentation: deficiency of reasoning” – claim – “pleading therein: substantial pleading” – court of first instance “its power to apprehend and understand the fact in the claim and weigh the evidence”.

First instance judge – has full power to apprehend and understand the facts in a claim, and assess and weigh the evidence – being subject to supervision by the cassation court in such assessment and the application of the appropriate provisions of law – it should not disregard, without writing down in its judgment the special reasons therefore, any properly submitted evidence, papers or documents with impact on the rights of the parties. 

Land ownership, under Section 839 of the Civil Law “includes land surface, things on it and underneath to the extent of depth and height which is ordinarily utilizable”. Ownership is inviolable and no person shall, by virtue of Section 840 of the said Law, be deprived of his ownership except as provided by the law, and according to legally prescribed means. It shall further be against equitable compensation. Where a decision is made to allocate a privately owned property for public use, according to the provisions of the second paragraph of Section 2 of Law No. 10 of 1987 on Public and Private State Property, ownership shall first be transferred to the state. The expropriation or dispossession of real estate shall only be effected for public utility, and with the payment of adequate compensation to be decided according to the provisions of Law No. 13 of 1988 on the Temporary Expropriation and Dispossession of Real Estate for Public Utility. Compensation shall be paid as deserved in a single instalment, as provided by Section 2 of the previous Law. If the owner fails to exploit the remaining part of the expropriated real estate, he shall offer such part for sale to the relevant directorate within sixty days of the date in which the state has taken delivery of the expropriated property, as provided by Section 19 of the said Law. Such directorate, upon ascertaining the non-exploitability of the remaining part, and after consulting the urban planning department, shall purchase such part of the real estate as if the whole real estate had initially been expropriated.  The conclusion from the aforesaid provisions is that the allocation of privately owned property for public utility entails the expropriation of such property from their owners and first transferring such ownership to the state, against the payment of due compensation to the owners. The same applies where the remaining part of the expropriated property becomes non-utilizable, which shall upon purchasing it be transferred first to the state against the payment of compensation.

2- It is established jurisprudence of this Court that although the judge of first instance has full power to apprehend and understand the facts in the claim, assess and weigh the evidence, he nevertheless remains subject to supervisions by the cassation court in such assessment and in the proper application of the law. Accordingly, such judge shall not, without writing down in his judgment the special reasons therefore, disregard any properly submitted evidence, papers or documents with impact on the rights of the parties. 

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 Appellant brought against the Respondent a claim No. 338/2007 applying for obliging him to pay three million Riyals or more, as reasonably adequate, in compensation for the expropriation of buildings composed of a two-storey villa with attachments, which is established on his land No. ....... and was also expropriated. He stated that the aforesaid land and buildings came into his ownership by sale from their previous owners; by virtue of a title deed issued by the Land Registration Directorate in which included that the real estate represented a land and a two-storey villa. This real estate was expropriated and the Appellant was compensated for the land but not the buildings thereon. The reason for this was that the previous owners were compensated for the same. Upon rejection of his grievance before the Grievances Committee the Appellant brought his claim. The court rejected the claim. He then lodged against the judgment an appeal No. 142/2008. On 30.3.2009 the court confirmed the appealed judgment. The Appellant then lodged an appeal by cassation, which was presented before this Court, at the deliberations chamber, and a session was fixed for its consideration.

The Appellant contends against the judgment appealed by cassation that it involved error in the application of the law, deficiency of reasoning and bad argumentation. He states that the judgment appealed by cassation has confirmed the appealed judgment in rejecting his claim based on the previous payment of compensation for the buildings to their previous owners, thereby defeating the evidence of title deed issued by the Land registration Directorate after the expropriation of another part of the land on which the buildings, the subject of the compensation application, are constructed. The said title deed included notice of their ownership of the remaining land and the buildings thereon, described as a two-storey villa. The judgment also defeated the evidence of the title deed of the Appellant, who purchased the said land with the buildings on them from their previous owners. The latter deed was also issued by the Land registration Directorate and included his ownership of the remaining land area and buildings described as a two-storey villa. The said documents were presented before the court of the first instance to establish the entitlement of compensation by the Appellant for the expropriated buildings, but the court disregarded such documents, thereby rendering its judgment, which is appealed against, defective and worthy of appeal.

This contention is appropriate. Land ownership, under Section 839 of the Civil Law “includes land surface, things on it and underneath to the extent of depth and height which is ordinarily utilizable”. Ownership is inviolable and no person shall, by virtue of Section 840 of the said Law, be deprived of his ownership except as provided by the law, and according to legally prescribed means. It shall further be against equitable compensation. Where a decision is made to allocate a privately owned property for public use, according to the provisions of the second paragraph of Section 2 of Law No. 10 of 1987 on Public and Private State Property, ownership shall first be transferred to the state. The expropriation or dispossession of real estate shall only be effected for public utility, and with the payment of adequate compensation to be decided according to the provisions of Law No. 13 of 1988 on the Temporary Expropriation and Dispossession of Real Estate for Public Utility. Compensation shall be paid as deserved in a single instalment, as provided by Section 2 of the previous Law. If the owner fails to exploit the remaining part of the expropriated real estate, he shall offer such part for sale to the relevant directorate within sixty days of the date in which the state has taken delivery of the expropriated property, as provided by Section 19 of the said Law. Such directorate, upon ascertaining the non-exploitability of the remaining part, and after consulting the urban planning department, shall purchase such part of the real estate as if the whole real estate had initially been expropriated. The conclusion from the aforesaid provisions is that the allocation of privately owned property for public utility entails the expropriation of such property from their owners and first transferring such ownership to the state, against the payment of due compensation to the owners. The same applies where the remaining part of the expropriated property becomes non-utilizable, which shall upon purchasing it be transferred first to the state against the payment of compensation.

It is established jurisprudence of this Court that although the judge of first instance has full power to apprehend and understand the facts in the claim, assess and weigh the evidence, he nevertheless remains subject to supervisions by the cassation court in such assessment and in the proper application of the law. Accordingly, such judge shall not, without writing down in his judgment the special reasons therefore, disregard any properly submitted evidence, papers or documents with impact on the rights of the parties.

The facts of the claim reveal that the relevant Directorate has expropriated the Appellant’s land and buildings the subject-matter of the claim against compensation only for the land, and refused to compensate for the buildings attached to the land on which they were constructed by virtue of a title deed issued by the Land Registration Directorate and based on sale thereto by the previous owners, as evidenced by a title deed in relation to the land and the buildings issued to them by the Land Registration Directorate as well. The judgment appealed by cassation found that such Directorate had paid compensation for the said buildings to their previous owners, but without explaining the appropriateness of such finding while such buildings remain owned by their previous owners, and by the Appellant thereafter, by virtue of the two title deeds presented before the court b the Appellant, in addition to the legal requirement to transfer the ownership of the expropriated property, or that which is purchased by the Directorate for their non-exploitability due to the expropriation of parts thereof as aforesaid. Therefore, and since the judgment appealed by cassation has disregarded the evidence of the said documents presented by the Appellant although they contain substantial and effective defence which would cause an alteration of the opinion on the claim, the reasons of such judgment would thereby be deficient in its reasoning, leading to an error in the application of the law, which necessitates its appeal by cassation for this reason alone and without the need to consider the remaining reasons, provided that such cassation shall be accompanied with referral.