Session Date: 9.6.2009

Appeal by Cassation No. 56 of 2009 – Civil Appeal by Cassation
 

(2, 1) Compensation – “compensation against expropriation for the public interest” – Judgment – “stating the reasons thereof: defects in argumentation: what is not considered as such” – Ownership – “encumbrances on the right to ownership: expropriation for the public interest”.
 

(1) The State has the right to recover some real estate situated at the towers area in New Doha, reduce their area or change the nature of their use whenever that is necessary for the implementation of its plans, against compensation to their owners according to the law – section 6 of Law No. 6 of 2004 on the Regulation of Construction at the Towers Area of New Doha.
 

(2) That the law does not impose upon the State the allocation of lands recovered for public interest, or restrict its right to dispose of all or some of such land in favour of individuals, so long as the same is necessary for the implementation of its plans – Contending against the appealed judgment that it violated the law for not allocating the recovered lands for the public interest, and selling them instead to other parties, in the absence of any lawful interest on the part of the State in such recovery – groundless.
 

(4), (3) Evidence – “among the evidential procedures: the deputation of an expert: assessment of the expert’s work” – “the issuance of a judgment on evidence and the retrieval of such judgment” – compensation – Judgment – “stating its reasons: defects in argumentation: what is not considered as such” – experience – court of first instance.
 

(3) Whether or not a litigant has a right to compensation – a point of law – that the expert may not entertain, nor may the court surrender such point – its effect – that a judgment blamed for refraining from the part of a claim expert’s report dealing with damage incurred by the Appellant which entails a right to compensation.
 

(4) That the court disregarded the result arrived at by the expert – that it should state the reasons for the same in its judgment = Sections 215 and 355 of the Procedures Law – violation of the same – a regulatory matter not entailing any sanction – Contending against the appealed judgment as deficient and inconsistent with documentary evidence because such judgment failed to record the reasons for disregarding the evidence of the expert’s report – groundless.
 

(5) Appeal by cassation – “ the reasons of the appeal by cassation: legal reasons including facts – new reasons”.

Legal defence pleading which includes a fact not previously presented before the court of first instance – that it shall not be raised for the first time before the Court of Cassation.

(6) Claim – “referring the claim back for litigation” – the court of first instance – “its power in relation to an application that the claim be referred back for litigation”.

The court of first instance – not being obliged to respond to an application requesting the reopening of litigation after the same has been closed – its effect – its implicit rejection of such application.

(8), (7)  Appeal – “the effects of an appeal: the transferring effect of the appeal” – Judgment – “stating its reasons: defects in argumentation: what is not considered as such” – Claim – “capacity in a claim” – defence pleas – Corporations – the General Corporation for Planning and Urban Planning”.

(7) Lodging an appeal – its effect – transferring the entire subject-matter of the appeal to the Appeal Court, including defences and aspects of defence previously pleaded by the Respondent before the first instance court – considered presented before the Appeal Court even if not pleaded again so long as they were not surrendered.

(8) Transferring of the functions of the Lands and Urban Planning of the Ministry of Municipal Affairs and Agriculture to the General Corporation for Planning and Urban Development established by Law No. 15 of 2004 – its effect – that the latter Corporation has capacity in the claim, to the exclusion of others. The defence pleaded, after the admission of the claim, by the person appearing before the first instance court on behalf of the Ministry of Municipal Affairs and Agriculture and the public works corporation, on the grounds that as far as they are concerned such claim was brought without the necessary capacity, and the continued pleading of such defence before the Appeal Court – that the appealed judgment has accepted the said plea and based its jurisprudence on it – contending against such judgment as having violated the law – groundless.
 

1- Section 6 of Law No. 6 of 2004 on the Regulation of Construction at the Towers Area of New Doha empowers the Ministry of Urban Affairs and Agriculture, which is replaced by the General Corporation for Planning and Urban Development under Law No. 15 of 2004, to recover some real estate situated at such area, reduce their area or change the nature of their use, whenever that is necessary for the implementation of planning in the area, provided that it shall compensate the owners thereof according to the relevant rules of the law.
 

2- The first instance judgment, affirming and referring to the reasons of the appealed judgment, has proved that the land recovered from the Appellant was situated in the towers area, and that the Appellant was compensated and has accepted the compensation offer in that connection with satisfaction. The law does not impose upon the State the allocation of lands recovered for public interest, or restrict its right to dispose of all or some of such land in favour of individuals, so long as the same is necessary for the implementation of its plans, a matter not contested by the Appellant. Accordingly, contending on the basis of this reason is groundless.
 

3- Whether or not a litigant has the right to compensation, is a legal matter which the expert should not entertain, nor should the court surrender. Therefore, the appealed judgment should not be blamed for disregarding the part of the report by the expert appointed in the claim indicating that the appellant has incurred damage for which he deserved compensation.
 

4- The legislature, under sections 215 and 355 of the Procedures Law, mandates the court that if it disregards the conclusion arrived at by the expert it shall state its reasons for so doing in its judgment. However, no sanction is provided for not observing the provisions of the said two sections, such provisions being regulatory in this connection. The contention is thereby groundless.
 

5- If the judgment dismissing the claim is based on that the appellant has consented to and was satisfied with the offered compensation for the land he owned and recovered from him, but without realising that the Appellant, despite accepting the compensation in kind, has refused receiving the financial compensation estimated by the State. This negates his consent to the compensation offer and destroys the grounds of the judgment, rendering it defective and worthy of appeal by cassation. This contention is therefore inadmissible, as it includes a defence based on a fact, namely, that the Appellant refused to receive the financial compensation, which was not previously presented before the court of first instance. Such fact shall not be raised for the first time before this Court.

6- It is established jurisprudence of this Court that the court of first instance should not be blamed for not responding to an application before it requesting the reopening of litigation after it was closed. The court’s failure to respond to such an application becomes a technicality, and should not be a cause for blaming such court. Furthermore, such failure indicates a rejection of such application. The contention thereby becomes groundless.

7- It is established jurisprudence of this Court that lodging an appeal entails the transfer of the entire subject-matter of the dispute to the Appeal Court, including defences and aspects of defence previously pleaded by the Respondent before the first instance court. All such defences and aspects shall be deemed as presented before the Court of Appeal, which shall settle them even if the Respondent stopped pleading such defences, so long as he did not surrender them.

8- The functions of the Lands and Urban Planning Directorate of the Ministry of Municipal Affairs and Agriculture have been transferred to the General Corporation for Planning and Urban Development established by Law No. 15 of 2004. It thereby enjoyed the exclusive capacity to represent in the current claim. It has been established by the documents that the person appearing before the first instance court on behalf of the Ministry of Municipal Affairs and Agriculture and the Public Works Corporation has pleaded against the admission of the claim because, as far as they were concerned, it was brought without the necessary capacity. That pleading was continued before the Appeal Court, thereby indicating that it was not surrendered. The admission by the appealed judgment of the said plea and its founding of the judgment jurisprudence on thereon should not be considered as a violation of the law, and the contention becomes groundless

The Court

Having reviewed the documents, heard the report read out by the rapporteur judge, and the litigations; and after the deliberations.
And upon the satisfaction of formal requisites of the appeal;

The facts, as revealed by the appealed judgment and other documents, may be summed up as follows; that the appellant brought the claim No. 1254/2006 – civil – general – applying for a judgment ordering the First Respondent, in its official capacity, to re-register the title to the land as defined in the documents in his name or, alternatively, ordering it to pay to him the amount of 53,820,000 Riyals in compensation for the actual price, and the amount of 50 million Riyals in moral and material compensation for damages he incurred as a result of the decision to recover the land from him. In elaboration he stated that he was surprised by a letter from the Minister of Municipal Affairs notifying him of the decision to recover the ownership in the real estate and the delivery to him of another land, and that he realised that part of the real estate he owned was sold to other persons, without allocating the same for the public interest. This has caused him material damages and prompted him to bring the claim. The court deputed an expert after the submission of whose report it issued its judgment dismissing the claim. The Appellant then lodged the appeal No. 1881/2008. On 23.2.2009 the court issued a judgment affirming the appealed judgment. The Appellant lodged an appeal by cassation, which was presented before this Court, and a session was fixed for its consideration.
The appeal by cassation is founded on one reason constituted of six aspects. In the first aspect, the Appellant contends against the appealed judgment that it has violated the law, by not responding to his claim applications although his land recovered by the State was not allocated for public interest, but was rather sold to other persons, thereby negating any lawful interest for the state in such recovery.
This contention is inappropriate. Section 6 of Law No. 6 of 2004 on the Regulation of Construction at the Towers Area of New Doha empowers the Ministry of Urban Affairs and Agriculture, which is replaced by the General Corporation for Planning and Urban Development under Law No. 15 of 2004, to recover some real estate situated at such area, reduce their area or change the nature of their use, whenever that is necessary for the implementation of planning in the area, provided that it shall compensate the owners thereof according to the relevant rules of the law. The first instance judgment, affirming and referring to the reasons of the appealed judgment, has proved that the land recovered from the Appellant was situated in the towers area, and that the Appellant was compensated and has accepted the compensation offer in that connection with satisfaction. The law does not impose upon the State the allocation of lands recovered for public interest, or restrict its right to dispose of all or some of such land in favour of individuals, so long as the same is necessary for the implementation of its plans, a matter not contested by the Appellant. Accordingly, contending on the basis of this reason is groundless.

In the second aspect, the Appellant contends against the appealed judgment that it contradicted documentary evidence and was deficient in argumentation, because it concluded that the Appellant had no right to compensation in excess of what the State has estimated for him, although the expert appointed in the claim has included in his report the Appellant’s right as applied for, and without stating the reasons for contradicting the contents of such report; and that the aforesaid renders the judgment defective and worthy of appeal by cassation.
His contention is inappropriate. Whether or not a litigant has the right to compensation is a legal matter which the expert should not entertain, nor should the court surrender. Therefore, the appealed judgment should not be blamed for disregarding the part of the report by the expert appointed in the claim indicating that the appellant has incurred damage for which he deserved compensation.

The legislature, under sections 215 and 355 of the Procedures Law, mandates the court that if it disregards the conclusion arrived at by the expert it shall state its reasons for so doing in its judgment. However, no sanction is provided for not observing the provisions of the said two sections, such provisions being regulatory in this connection. The contention is thereby groundless.
In the third aspect, the Appellant contends against the appealed judgment that it was deficient in reasoning because it dismissed the claim on the grounds that the appellant has consented to and was satisfied with the offered compensation for the land he owned and recovered from him, but without realising that the Appellant, despite accepting the compensation in kind, has refused receiving the financial compensation estimated by the State. This negates his consent to the compensation offer and destroys the grounds of the judgment, rendering it defective and worthy of appeal by cassation.
This contention is inadmissible, because it includes a defence plea based on a fact, namely, that the Appellant refused to take delivery of the financial compensation, which was not previously presented before the court of first instance, and therefore shall not be raised for the first time before this Court.
In the fourth aspect, the Appellant contends against the appealed judgment that it violated the right to defence, because the Appellant submitted an application before the Appeal Court for the opening of the litigation process, accompanied with a declaration that he did not receive the financial compensation estimated by the State, but the judgment failed to respond to this application, nor did it refer thereto and state the reasons for disregarding such application, which renders the judgment defective and worthy of appeal by cassation.
This contention is refutable, because the court of first instance should not be blamed for not responding to an application before it requesting the reopening of litigation after it was closed. The court’s failure to respond to such an application becomes a technicality, and should not be a cause for blaming such court. Furthermore, such failure indicates a rejection of such application. The contention thereby becomes groundless.
In the fifth aspect, the Appellant contends against the appealed judgment that it violated the law, because it failed to settle his initial application presented in the dispute, namely, the re-registration in his name of the land which the State had recovered from him. The judgment was confined to settling the application for compensation, which was presented only as an alternative application.
This contention is incorrect. Since the appealed judgment has affirmed the first instance judgment, which dismissed the claim, based on the jurisprudence that the Appellant had willingly accepted the compensation offered for his recovered land, and that he thereby lost the right to claim or get compensation for such land. By so doing the judgment had settled the application for the re-registration of such land in his name, and thereby explicitly rejected such application. The contention therefore becomes groundless.
In the sixth aspect, the Appellant contends against the appealed judgment that it violated the law, because it quashed the first instance judgment admitting the claim relating to the Minister of Municipal Affairs and agriculture and the Public Works Corporation, and decided to dismiss such claim in their connection, despite the fact that they accepted the first instance judgment and did not appeal it.
This contention is inappropriate. The lodging of an appeal entails the transfer of the entire subject-matter of the dispute to the Appeal Court, including defences and aspects of defence previously pleaded by the Respondent before the first instance court. All such defences and aspects shall be deemed as presented before the Court of Appeal, which shall settle them even if the Respondent stopped pleading such defences, so long as he did not surrender them.
The functions of the Lands and Urban Planning Directorate of the Ministry of Municipal Affairs and Agriculture have been transferred to the General Corporation for Planning and Urban Development established by Law No. 15 of 2004. It thereby enjoyed the exclusive capacity to represent in the current claim. It has been established by the documents that the person appearing before the first instance court on behalf of the Ministry of Municipal Affairs and Agriculture and the Public Works Corporation has pleaded against the admission of the claim because, as far as they were concerned, it was brought without the necessary capacity. That pleading was continued before the Appeal Court, thereby indicating that it was not surrendered. The admission by the appealed judgment of the said plea and its founding of the judgment jurisprudence on thereon should not be considered as a violation of the law, and the contention becomes groundless.
According to the aforesaid, this appeal by cassation shall hereby be dismissed.