Cassation Court
Civil and Commercial Circuit - No. 102/2009
Session Date: 8 December 2009
Appeal by Cassation No. 102 of 2009 - civil appeal by cassation.

(1) Evidence “among the evidential procedures: an application to order the opposing litigant to submit a document in his possession, appoint an expert” – judgment “its reasoning: defects in argumentation: error in the application of the law: what is not considered as such” – expertise – claim “capacity in a claim” – the court of first instance.


Responding to an application by the opposing litigant for the submission of a document in his possession , or the appointment of an expert in the claim - Sections 228 and 333 Procedures - its requirement - the court may disregard the application by the opposing litigant in this connection where it confines its judgment to the lack of pleading capacity on the part of the other litigant regarding the right applied for, for which the application the attainment of which the application for submission of documents or the appointment of an expert was dedicated - where the judgment appealed against by cassation accords with such jurisprudence  - contending against such judgment that it erred in the application of the law - baseless.


(2, 3) Registration "registration of title transferring transactions: the effect of non-registration" - claim "capacity in a claim" - pleas - ownership  "transfer of title" "disputes relating to ownership" - corporations "General Corporation for Urban Planning" - judgment "its reasoning: defects in argumentation: what is not considered as such".
 
(2) Mandatory requirement to register all transactions purporting to establish, transfer, alter, or extinguish an original real estate right in specie, as well as the final judgments which establish the same - Law No 14 of 1964 on the Regulation of Real Estate Registration - its effect - no establishment, transfer, or extinguishment of such rights as regards stakeholders or third parties - non-registered transactions has no effects except the personal obligations that result from such transactions between stakeholders.


(3) The General Corporation for Urban Planning - has capacity in disputes relating to the administration of State public properties, in application of the law establishing such Corporation, No. 15 of 2004 - its effect - that the respondent, being the Minister of Justice, has no capacity regarding the dispute by the applicant on the establishment of his ownership of the disputed land - where the judgment appealed against by cassation accords with such jurisprudence, and its conclusion by accepting a plea for the disallowing the claim as being brought by a person with no capacity - contending against such judgment as involving an error in the application of the law - baseless.
 
(4) Contradiction resulting in a bad judgment - its nature - which results in inter-negation of reasons to an extent that leaves nothing to support the judgment, and no basis on which the court has carried its judgment as included in its statement of judgment - where the judgment includes words that delude to the occurrence of contradiction among the reasons inter se - no contradiction - so long as the intention of the court is apparent, and its opinion is clear.
 
1- Section 228 of the Procedures Law provides in its opening that "A litigant may apply for the submission by his opposing litigant of documents relevant in the claim which are in his possession ..." Section 333 of the same Law provides that "The court may, when required, issue a judgment appointing an expert ..." This means that such documents should be relevant, and that such appointment be required for the purposes of settling the claim, considering that each of the two requirements relate to aspects of evidence. The court may disregard an application by the opposing litigant in this connection, if it confines its judgment to the lack of pleading capacity on the part of the other litigant regarding the right applied for, for which the application the attainment of which the application for submission of documents or the appointment of an expert was dedicated. The judgment appealed against by cassation, in response to the plea by the respondent's plea on the lack of capacity in the claim, concluded that the right applied for requires litigation against a person other than the respondent. On that basis the court issued its judgment dismissing the claim, as being brought by a person who had no capacity. Therefore, the court is relived of the need to consider the establishment of such right, and its disregarding of the appellant's application in this connection becomes valid. Accordingly, contention against such judgment on the basis of such reason has no proper basis.
 
2- It is establishment jurisprudence of this Court that all transactions purporting to establish, transfer, alter, or extinguish an original real estate right in specie, as well as the final judgments which establish any of the aforesaid, shall be registered. Otherwise, non-registration would result in the failure so to establish, transfer or distinguish such rights among the stakeholders or third parties.  Non-registered transactions have no effects except the personal obligations that result from such transactions between stakeholders.


3- Since the General Corporation for Urban Planning, under Law No. 15 of 2004, has become the legal representative in disputes relating to the administration of State properties, the Minister of Justice would have no capacity as respondent in connection to the litigation by the appellant on the establishment of the ownership of the disputed land. The judgment appealed against by cassation accords with such jurisprudence, in concluding by accepting the plea for dismissing the claim as being brought against a person with no capacity. It therefore accords with proper law and free of error in its application. Accordingly, the contention becomes baseless.


4- It is establishment jurisprudence of this Court that contradiction which causes the judgment to be defective and bad is such that results in inter-negation of reasons to an extent that leaves nothing to support the judgment, and no basis on which the court has carried its judgment as included in its statement of judgment. However, there is no contradiction where the judgment includes words that delude to the occurrence of contradiction among the reasons inter se, so long as the intention of the court is apparent, and its opinion is clear. The judgment appealed against by cassation, in the course of answering the respondent's plea for the dismissal of the claim on the basis that it was brought against a person with no capacity, has responded that "such plea is inappropriate". The court continued stating reasons in support of the aforesaid, and issued its judgment on the claim accordingly. The original version of the claim included the bases of the judgment, that the plea was "inappropriate", is merely a material error in copying from the draft judgment, after the court has apparently and clearly expressed its opinion regarding the stated reasons, which it used in issuing its judgment as included in its judgment statement, namely, that the claim against the respondent has been brought against a person without capacity.

The Court
 

Having reviewed the documents and listened to the report reiterated by the judge-rapporteur, and after the litigations and deliberations; and as this appeal by cassation has satisfied its formalities.

The facts, as revealed by the judgment appealed against by cassation and other documents, are as follows. The Appellant brought the claim No 868/2008 - civil - general - applying for a judgment establishing his ownership of the land detailed in the documents, and ordering the Respondent to submit the decisions relating to such land and the State Properties Register for review, or the appointment of an expert to examine such documents to state whether or not the land was registered as per such documents. He stated that the Land Registration Committee rejected an application he submitted for the registration of a land the possession of which he acquired from his ancestors with the intention to own the same, and accordingly he brought the claim. The court issued a judgment disallowing the claim and validating the decision aggrieved against. The Appellant lodged an appeal No. 1038/2008. On 28.04.2009 the court issued a judgment quashing the judgment appealed against, and disallowing the claim for being brought against a person not having capacity. The Appellant lodged against such judgment an appeal by cassation, which was presented before this Court, at the deliberations room, and 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 judgment appealed against that it erred in the application of the law. He stated that he brought his claim applying originally for the establishment of his ownership of the disputed land, and alternatively to order the Respondent to submit the documents referred to, or the appointment of an expert to examine such documents and research their evidential indications. The first instance judgment however failed to refer to the alternative application, which should have prompted the Court of Appeal to quash the appealed judgment and refer the claim back to the first instance curt for consideration. The judgment appealed against deferred from this jurisprudence and confined the scope of the claim to the examination of the capacity of the respondent therein, concluding that the claim was inadmissible for being brought against a person without capacity. The court therefore did not need to examine the means for establishing the relevant right. The court's disregard of the Appellant's application in that connection becomes appropriate. Accordingly, the contention against such judgment by this reason would be based on an inappropriate basis.

In the second reason, the Appellant contends against the judgment appealed against by cassation that it erred in the application of the law. He states that his litigation against the Minister of Justice, the Respondent, was because the latter disputed his ownership of the disputed land, through the refusal by the Real Estate Registration Committee, represented by the said Minister, of his application in that connection. The jurisprudence of the judgment appealed against by cassation departed from the aforesaid jurisprudence and held the claim inadmissible for being brought against a person with no capacity. Accordingly, such judgment becomes defective and worthy of cassation.

This contention is inadmissible.  It is establishment jurisprudence of this Court that all transactions purporting to establish, transfer, alter, or extinguish an original real estate right in specie, as well as the final judgments which establish any of the aforesaid, shall be registered. Otherwise, non-registration would result in the failure so to establish, transfer or distinguish such rights among the stakeholders or third parties. Non-registered transactions have no effects except the personal obligations that result from such transactions between stakeholders. The legislature, since the issuance of the Law No. 14 of 1964 on the Regulation of Real Estate Registration, that some situations were established before the issuance of the said Law, and it specified certain controls ad indicators for considering the same, and allowed extended times for the relevant persons to register, until the issuance of the Public and Private State Property Law No 10 of 1967, which restricted, under Section 13 thereof, the ownership, possession or use of such properties by any natural or juridical person of except by virtue of a transaction executed by the concerned body. Section 20 includes the extension of the period under Section 20 of the Law No 14 of 1964 for two years as from the date of the application of this law, provided that real estate which no one applies for its registration during the said period shall be considered void and free of ownership by any person until their owners establish such ownership ..." The General Corporation for Urban Planning has become the legal representative regarding disputes pertaining to the administration of State property, in application of the Law No 15 of 2004. Accordingly, the capacity of the Respondent, Minister of justice, is thereby negated in relation to litigation against the Appellant on the establishment of the latter's ownership of the disputed land. The jurisprudence of the judgment appealed against by cassation accords to the aforesaid jurisprudence, by accepting the plea against the admission of the claim for having been brought against a person with no capacity. Such judgment is therefore in accordance proper law, and free from error in its application. Contention against it would therefore become baseless.

In the third reason, the Appellant contends against the judgment appealed against by cassation that it has been contradictory, because it held the claim inadmissible for being brought against a person with no capacity, thereby contradicting with its recorded contents that such plea was inappropriate. This renders such judgment defective and worthy of cassation.
This contention is inadmissible. Contradiction which causes the judgment to be defective and bad is such that results in inter-negation of reasons to an extent that leaves nothing to support the judgment, and no basis on which the court has carried its judgment as included in its statement of judgment. however, there is no contradiction where the judgment includes words that delude to the occurrence of contradiction among the reasons inter se, so long as the intention of the court is apparent, and its opinion is clear. The judgment appealed against by cassation, in the course of answering the respondent's plea for the dismissal of the claim on the basis that it was brought against a person with no capacity, has responded that "such plea is inappropriate". The court then continued stating reasons in support of the aforesaid, and issued its judgment on the claim accordingly. The original version of the claim included the bases of the judgment, that the plea was "inappropriate", is merely a material error in copying from the draft judgment, after the court has apparently and clearly expressed its opinion regarding the stated reasons, which it used in issuing its judgment as included in its judgment statement, namely, that the claim against the respondent has been brought against a person without capacity. Therefore the contention in this connection becomes inadmissible.