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 on 16.12.2004 against the two respondents a claim No (…) applying for a judgment declaring his right to take the land plot detailed in the statement for the price of 2,394,721 Riyals. He stated that he came to know that the Second Respondent had sold such land to the First Respondent at the said price. Based on his ownership of the property adjacent to the preempted property and his right to apply for preemption he notified the two Respondents of his desire to take such property by way of preemption, deposited the said price and brought the claim. The court appointed an expert who submitted his report and it issued a judgment positively responding to the application of the Appellant. The First Respondent lodged against such judgment an appeal No 11/2008, applying for quashing such a judgment and the issuance of a judgment dismissing the claim for being brought against a person of no capacity to litigate due to being an imbecile under attachment by virtue of a final judgment issued on the application No (…) of 2004 by the Sharia Court on 12.9.2004. The Appeal Court issued a judgment on 30.4.2008 quashing the appealed judgment and dismissing the claim as being brought against a person without full capacity. The Appellant lodged against such judgment an appeal by cassation, which was considered before this Court, at the deliberation chamber, where it fixed a session for its consideration.
This appeal by cassation is based on two reasons. In the second aspect of the first reason the Appellant contends against the judgment appealed by cassation that it violated the law. He stated that he pleaded the dismissing of the appeal for having been lodged by the First Respondent who was of deficient capacity and could not litigate in person but should have had a legal representative. However, the judgment appealed against by cassation rejected such pleading, and admitted the said appeal, which renders such judgment defective and worthy of cassation.
This contention is inappropriate. Under Section 173 of the Procedures Law, litigation in appeals should be limited to the people who were litigating before the court of first instance. The criterion for defining a litigant is the addressing of applications in the claim by or against such litigant. According to the facts, the First Respondent did not appear in litigation before the first instance court through a legal representative, but rather in person as a defendant. The first instance court issued a judgment against him as per the applications made against him by the Appellant. Should he lodge an appeal against such judgment in person, such appeal would be valid as being lodged by the person against whom the judgment was issued. The judgment appealed against by cassation considered the pleading by the appellant for dismissing the appeal as being lodged by a person with no full capacity, quashed it and based its jurisprudence in this connection in accord with the aforesaid jurisprudence. It should therefore not be defective, and the contention becomes baseless.
In the second aspect of the second reason the Appellant contends against the judgment appealed against by cassation that it violated the law. He stated that he was not party to the judgment which ordered the attachment against the First Respondent, and that the attachment application against him was not entered into the register as provided under Section 118 of the Civil Law, and referred to under Section 35 of the Law No 40 of 2004 on the Guardianship over Minors’ Property. Furthermore, the judgment issued thereon was also not entered into such register. Accordingly, such judgment should not acquire argumentativeness against him for lack of knowledge, both actual and legal. Since the said judgment considered it argumentative against him and on that basis rejected the preemption claim he brought against the First Respondent whose deficient capacity was established due to the said attachment judgment, such judgment becomes defective, which necessitates its cassation.
This contention is inappropriate. As provided by section 300 of the Procedures Law, argumentativeness of judgments is based on an irrebuttable legal presumption that a judgment by a judge represents the truth, by virtue of the argumentativeness endowed by the legislature, and no relevant dispute should therefore be reconsidered, or evidence of its contrary be admitted. This is intended to observe the propriety of the administration of justice, maintenance of stability, avoidance of the perpetuity of dispute or inconsistency of judgments inter se. These are matters connected to public order, or even superior to the considerations of public order. Accordingly, a judicial reality represents an irrebuttable presumption factual reality, the effect of which shall be limited to allowing the litigants to plead such reality, and empowering courts to raise the same of their own accord. The scope of such reality, in terms of being relative or absolute, is subject to the nature and type of the issue on which such reality is based, and the extent to which it pertains to public order, societal interest, or the interests of private individuals. If such reality is related to the public interest or would affect legal positions in the society and the relevant jurisdiction of the court is not limited to the will of the litigants or the evidence presented by them – such as criminal matters and personal law matters which are public by nature – then their argumentativeness should be absolute, vis-à-vis the public at large. But if such reality is connected to the interests of individuals or their personal rights, thereby being subject to the will of litigants and the evidence presented by them, then its argumentativeness becomes relative, and exclusively limited to its parties. Personal law matters constitute a distinguished bouquet of natural or family attributes of a person, with legal effect in the social life of such person, in his capacity as male, female, a spouse, divorced, father, child, of full or deficient capacity (being a minor, imbecile or insane). Such attributes determine certain legal positions, situations or descriptions with legal effects on the social life of persons. Accordingly, judgments issued in relation to such attributes shall, for the aforesaid, have absolute argumentativeness vis-à-vis the public at large, regardless of whether or not such judgments declared or initiated the rights involved. This is because the judicial reality in matters of personal law, such as the name, capacity, marriage and childhood, whether the relevant judgments are positive, admitting the applications, or passive, rejecting such applications, would amount, as aforesaid, to no more than a declaration of a legal position, a situation or attribute that is distinguished for its uniqueness, absoluteness and indivisibility. They produce such effects that would define the status of the person in the society, thereby requiring that such effects be unique, absolute and relevant to the public at large who shall acquiesce to such effects. Disputes in matters relating to guardianship over property in fact pertains to an aspect of hisba (responsibility pertaining to public administration) for the protection of property owned by persons of deficient or no capacity, without being real litigation. Where the attachment application relates to a capacity circumstance, addressing a private interest and public interests which all relate to the protection of property owned by a person unable to protect his property, it is therefore a personal application relating to a surviving person required to be the subject of such attachment. The status of such a person requires the implementation of certain measures for protecting him against his own self and against third parties, through the establishment of guardianship over such person by procedures directed towards the person required to be the subject of attachment. The law allows application for attachment by any of the relations or other persons, to appear in procedures relating to such application, and appealing by cassation against judgments issued on such application, which is considered as a hisba claim as aforesaid. This, however, does not mean that such person is party to such attachment claim, nor does it mean that he is an opposing litigant vis-à-vis the person required to be the subject of attachment, since he does not apply for a judgment for his own sake based on a personal right owed to him. Accordingly, the defendant alone remains the person intended to be protected and the person having the right in the claim. Consequently, such claim depends on his presence and expires upon his decease. Therefore, a judgment issued on an attachment claim acquires absolute argumentativeness before the public at large regardless of such judgment as being positively responding to the application, by assessing the capacity vitiating circumstance on the defendant and ordering the attachment, or being a rejection of such application, by dismissing the said circumstance as capacity vitiating and declaring the defendant as having full capacity. This is because such judgment, in both aforesaid cases, involves decision on a legal position which defines the status of the defendant in the society, a situation on which the law provides certain effects on his life and an attribute distinguished as unique and absolute, which requires the same to be there vis-à-vis the public at large and acquiesced by all of them. The judgment shall, in the said connection, have absolute argumentativeness, regardless of the provisions of Sections 118 and 119 of the Civil Law, as also repeated by Section 35 of the Law No 40 of 2004 on Guardianship over Minors’ Property, in relation to the issuance of an attachment order against the insane or the imbecile, and providing that such order be a legal presumption of knowledge by third parties of such order. This is because the operation of such presumption only applies upon a decision on the validity or nullity of transactions conducted by the person against whom the attachment was issued. In other words, where the matter is not related to a transaction conducted by such person, such as being a litigant in a claim liable for an offence, no basis remains for the application of such presumption. Accordingly, contention in this aspect becomes baseless.
In the first aspect of the second reason the Appellant contends against the judgment appealed against by cassation that it violated the law. He stated that he pleaded before the Court of Appeal that the First Respondent committed deceit by deliberately concealing his deficient capacity, and avoiding anything that would have revealed such deficiency, including by purchasing in person the preempted land without issuing a notice of the sale to the Appellant. Although the rule is that deception invalidates everything, the judgment appealed against by cassation rejected the said pleading by the Appellant and responded thereto using reasons incapable for refuting such application, thereby rendering such judgment defective and necessitates its cassation.
This contention is inadmissible. The judgment ordering attachment against the imbecile, as aforesaid, is argumentative vis-à-vis the public at large, even where it is not revealed to some people. The rule in relation to the validity of litigation is that the parties to such litigation should have the capacity to litigate, or be legally represented. Whoever intends to initiate litigation should observe matters occurring to his opposing litigant such as decease or change of capacity or status, so that such litigation takes its proper legal course. Accordingly, the pleading raised by the Appellant in this aspect of his contention becomes without a valid legal basis, and the judgment appealed against by cassation would not be defective for disregarding such pleading. Consequently, contention against the reasons of such judgment, in this connection, and regardless of any aspect of opinion, becomes irrelevant, useless and, accordingly, inadmissible.
In the first aspect of the first reason the Appellant contends against the judgment appealed against by cassation that it violated the law. He stated that the First Respondent paid 100 Riyals as costs upon submission of the statement of appeal to the clerks of the court, while the due amount of costs for the appeal, regard being had to the value of the preempted property, exceeds such amount, and the Court of Appeal should have refused to entertain the claim, by virtue of Section 529 of the Procedures Law. However, and despite such pleading by the Appellant the Court decided on the claim, which renders its judgment, the subject of this appeal by cassation, defective and necessitates its cassation.
This contention is inappropriate. The preemption claim, being connected to the ownership of the preempted property, is considered as a claim with known value, which value should be assessed according to the value of the said property, as provided by Section 534 of the Procedures Law. Appeal costs in claims of known value are determined on the basis of the rates shown in section 532 of the said Law. However, a financial violation in a procedural action does not entail the nullification of such action unless the law otherwise provides, and the law does not provide for the nullification of an appeal for the failure to pay its costs. Section 529 of the Procedures Law mandates the court to remove from the list of cases any claim the costs for which are not paid, but it not provide that the violation of such mandate entails the nullification of the judgment issued on such claim. Accordingly, and assuming that the First Respondent failed to pay the full costs for the appeal, the failure by the Court of Appeal to remove the said claim from the cases list, and that it considered such claim and issued a judgment thereon, should not rendered such judgment defective. This contention therefore becomes baseless.
Therefore, this appeal by cassation should be dismissed.