UAE Laws and Islamic Finance

Laws of the UAE and Islamic Finance

Archive for May 2, 2010

Appeal for Review in UAE Litigation Under UAE Law

 

Federal Law No. 11 of 1992 The Civil Procedure Law

Article 169:

The litigant shall apply for review of final judgments in the following cases:

  1. If the party is involved in a fraud which effects the judgment;
  2. If the judgment is based on papers which, after being issued, are admitted to be forged, or if it is adjudged or established on the testimony of a witness, which is found by the court to be a perjury after such a judgment has been rendered;
  3. If after the award of the judgment, the applicant obtains conclusive papers the submission of which has been obstructed by his adversary.
  4. If the judgment include anything not required by the parties to the legal action or more than they require.
  5. If the decree is contradictory.
  6. If the party who has not been admitted or intervened in the action considers the judgment awarded in the lawsuit a verdict against him, provided that fraud, collusion or serious negligence on the part of the person who represented him is proved.
  7. If the judgment has been issued against a natural person or body corporate who has not been properly represented in the lawsuit.

 

Article 170:

The time for appeal shall be thirty days and in the cases provided for in clauses (1,2, and 3) under the preceding article it shall not begin until the day on which the fraud becomes evident or the day on which the forger confesses to the forgery or is convicted thereof, or the day on which the perjurer is convicted thereof, or the day on which the detained paper has been disclosed.  In the cases provided for in clause 6, the time shall begin from the day on which fraud, collusion, or serious negligence becomes evident and in the case provided for in clause 7, it shall begin from the day on which the judgment is delivered to the person adjudged or to the person who represents him properly.

Article 171:

  1. The appeal shall be submitted to the court that has awarded the judgment by a plaint to be lodged with the registrar in accordance with the usual procedures for raising an action.
  2. The plaint shall include a statement of the appealed judgment, its date and the grounds of the appeal; otherwise, it will be void.
  3. The court to whom the appeal comes for a hearing may be comprised of the same judges who had awarded the judgment.
  4. The review shall not be accepted if its petition is not accompanied by proof of the deposit of Dhs five hundred.  The deposit shall be confiscated if the appeal was rejected, dismissed or found impermissible.

 

Article 172:

  1. After hearing the litigants, the court shall first decide on the legality of the appeal.  If it is accepted, it shall fix a time for hearing the pleadings on the merits without serving a new summons.  However, the court may pronounce the acceptance of the appeal and judge on the merits in one judgment, if the litigant parties have submitted their demands on the merits before the court.  The court shall only review the demands disclosed in the plaint.
  2. Submission or acceptance of the appeal shall not cause a stay of execution, yet the court hearing the review may order such a stay of execution if it is so requested and if the execution would cause heavy and unavoidable damage.  However, when the court orders a stay of execution, it may impose a guarantee or may order whatever it considers necessary for maintaining the interests of the respondent.
  3. No review shall be submitted against the dismissal of the review or of the judgment on the merits after the application has been accepted.

 

Article 173:

1. Litigants shall object for cassation in the judgments issued by the courts of appeal if the amount of the case exceeds two hundred thousand Dirhams or if its amount is not estimated in the following cases:

  •  If the challenged judgment is based on a violation of the law or its misapplication or misinterpretation.
  • If the judgment or the proceedings are rendered invalid and the judgment is affected as a result thereof.
  • If the appealed judgment is rendered contrary to the rules of jurisdiction.
  • If the dispute has been resolved contrary to another judgment issued on the same subject between the same litigants and was res judicata.
  • If the judgment is groundless or its grounds are inadequate or ambiguous.
  • If the judgment includes unrequested demands or more than what is requested.
  • The judgments issued by courts of appeal on the proceedings of execution shall be unobjectionable for cassation.

 

2. However, the litigants shall have the right of challenge before the cassation court in any final judgment, which decided in the dispute contrary to another judgment previously issued in respect of the same litigants and was res judicata irrespective of the court which issued it.

3. Judgments issued by appeal courts in the execution procedures shall be unchangeable at the cassation court.

Article 174:

The attorney general shall object by cassation of his own accord or according to a written request by the Minister of Justice, Islamic Affairs,  and Awqaf in final judgments irrespective of the court that issued them, if the judgment is based on a violation, misapplication or misinterpretation of the law in the following cases:

  1. Judgments legally unobjectionable by the parties;
  2. Judgments, in which the parties to the action have missed the time for challenge, waived the challenge or submitted an appeal against them which was not accepted. 

Such a challenge shall be submitted by a petition to be signed by the attorney general within one year from the date of issuance of the judgment.  The court shall hear the challenge in a consultation room without summoning the litigant parties.

Article 175:

  1. The objection for cassation shall cause a stay of execution of the judgment which is issued ordering divorce, cancellation of marriage or involving title to a real estate, nonetheless, the court may order a stay of execution of the judgment temporarily if the objector so requests in the challenge memorandum, and if he fears that the execution will cause serious irreparable damage, the head of the competent circuit shall fix a session for hearing such an appeal, the objector shall notify his litigant party thereof in the challenge memorandum.  However, if the court believes that the execution of the judgment is to be suspended or that the objection was based on reasons other than those stated in Article 173 of this Law, it shall fix a session for looking into the challenge within (90) days in a consultation room.
  2. When the court orders a stay of execution, it may require the submission of a guarantee or order whatever it considers necessary to safeguard the right of the challenged party.  The order of a stay of execution of the judgment shall apply to the procedures of the execution that the decree holder has taken in accordance with the appealed judgment from the date on which the stay of execution is applied for.
  3. However if the application has been dismissed the objector shall pay its fees.

 

Article 176:

The period of challenge for cassation shall be sixty days.

Article 177:

  1. The objection for cassation shall be submitted by memorandum to be lodged with the court’s clerical section, duly signed by a lawyer acceptable for pleading before it and shall be accompanied by proof of payment of the fee in full together with the deposit.  The challenge shall immediately be entered in the register maintained for this purpose.
  2. The objector shall lodge at the time of submitting the memorandum copies thereof equal to the number of the respondents together with a copy of the clerical section.
  3. Before the challenge is scheduled for adjudication, the challenger shall deposit the authorization deed of the lawyer appointed for the challenge.
  4. In addition to the particulars related to the names, capacities, and addresses of the parties to the lawsuit, the petition shall include a statement of the appealed judgment, the date of its issuance and the date of its notification if it is notified, and the grounds on which the challenge was based as well as the objector’s demands.
  5. If the challenge is not made in the aforesaid manner, it shall be unacceptable and the court shall automatically dismiss it.

 

Article 178:

If a ground is not mentioned in the challenge memorandum, it may not be adhered to before the court unless the cause is relevant to public discipline, where it may be adhered to at anytime and the court shall spontaneously observe it.

Article 179:

  1. A fixed fee of 2000 AED shall be levied in respect of each challenge for cassation; however, the ministries, institutions, governmental departments and the like in the state shall be exempted from payment of such fee and the president of the court or whomever he deputizes shall dispose of applications for postponement of the fees or exemption therefrom, and the submission of the application shall suspend the validity of the time fixed for the challenge.
  2. Upon payment of the fee prescribed for the challenge, the objector for cassation shall deposit with the court treasury an amount of 2000 AED, which will be refunded to him if the judgment sustains his objection; however, if the objectors file their objection in one petition, payment of one deposit shall be sufficient and whoever is exempted from the judicial fees shall be exempted from the deposit.
  3. A fixed fee of 1000 AED shall be imposed for every request submitted by the objector for suspension of the challenged judgment.  However, the authorities mentioned in Clause 1 of this Article shall be exempted from payment of this fee.

 

Article 180:

  1. The court’s registrar shall deliver the declaration of the challenge to the respondent within ten days of the time the challenge has been lodged and the court’s record clerk shall ask for the joinder of the case record whose judgment has been challenged within three days of the date of submission of the said declaration.   The records clerk of the court that has passed the judgment shall send the case file within ten days at most from the date the request for the file is received. 
  2. The court may be satisfied with the official extract of the judgment presented by the objector instead of applying for the case file.
  3. The respondent shall have the right to lodge a brief of his defence within fifteen days of the day he has been notified thereof.
  4. The court may permit the parties to the action to submit new statements in support of their pleadings and shall take any such action which facilitates the determination of the challenge.

 

Article 181:

  1. The respondent may admit in the challenge any party to the legal action in respect of the judgment was awarded if the challenge is not directed against him, and his admission shall be made by notifying him of the challenge provided that such notification is given within the time provided for in clause 3 under the preceding article.
  2. Whoever is admitted in the challenge shall file with the court’s record clerk a brief note of his defence within fifteen days of the day he was notified thereof and the appellant shall have the right of replication to such a not within the time prescribed by the preceding article.

 

Article 182:

Any party to the legal action with regard to which the challenged judgment has given and who has not been notified by the objector of the challenged filed by him may intervene in the challenge by applying for its dismissal.  His intervention shall be made by lodging a brief note of his pleading with the records clerk before the lapse of time provided for in clause 3 under Article 180.

Article 183:

  1. The president of the competent circuit shall appoint a judge to prepare a summary report on the grounds of the challenge and the reply thereto, and as soon as the report is lodged, the clerical section shall refer the case file to the president of the court in order to fix a session for hearing the challenge in a consultation room.  However, if the court believes that the challenge is unacceptable for expiry of its time for invalidity of its procedures or for being based on reasons other than those stated in Article 173, the court shall order it to be dismissed by a decision to be stated in the minutes of the session with a brief reference to the reason of the decision.
  2. If the court believes that the challenge is worth looking into, it shall fix a session in which the summary report shall be read out, and the court shall issue a judgment on the challenge after the deliberations and without pleadings.  It may hear the statements of the lawyers on behalf of the litigant parties or the statements of the parties themselves in response to their request, or if the court considers verbal pleadings to be necessary.

 

Article 184:

If the court sustains the challenge and the subject matter is valid for the judgment or if the challenge is made for the second time, it shall dispose of it and shall complete the necessary proceedings; however, in cases other than these, the court shall cancel the judgment in whole or in part and shall remit the case to the court which issued the challenged judgment unless the court considers the hearing of the case before a circuit comprised of other judges otherwise it shall refer it to the competent court for retrial, and the court to which the case is referred shall adhere to the cassation judgment in respect of the points that have been settled.

Article 185:

  1. The reversal of a judgment shall cancel all judgments on which the challenged judgment is based regardless of the court that has passed such judgments.
  2. However, if only part of the judgment was reversed, it shall remain effective in respect of the other parts, unless they are dependent on the part which was reversed.

 

Article 186:

If the court decides that a challenge is inadmissible or unacceptable or if it has dismissed the challenge in whole or in part, it shall award a judgment against its submitter for the appropriate expenses and shall confiscate part of the deposit as the case may be.

Article 187:

Cassation judgments may not be challenged in any manner except for such judgments as given in the original dispute where the challenge may  be made by way of review in the cases provided for in clauses 1, 2 and 3 of Article 169.

Article 188:

  1. The objection for cassation shall be governed by the rules and procedures that apply to the objection by appeal before the court of appeal where there is no conflict with the provisions of this chapter.
  2. An objection for cassation shall be made against the judgments issued by federal courts before the supreme federal court and according to the aforesaid procedures and rules.  However, where there is no particular provision in this chapter, the rules of Federal Law No. 10 of 1973 in respect of the supreme federal court and the laws amending thereto shall be applicable.

Appeal in UAE Litigation Under UAE Law

 

Federal Law No. 11 of 1992 The Civil Procedure Law

Article 158:

In cases other than those expected by law, the parties may appeal against judgments of lower courts before the competent court of appeal.

Article 158 (Repeated): (This article was added to Federal Law No. 11 of 1992 by the Second Article of Federal Law No. 30 of 2005.

Judgments issued within the maximum limit, by the courts of First Instance due to infringement of the rules of competence pertaining to public order or occurrence of nullification in the judgment or invalidity in the procedures which affected the judgment may be appealed.

However, all judgments may also be appealed within the maximum limit if the judgment is issued contrary to a previous judgment which has not acquired the power of executable order and in this case the earlier judgment shall be considered appealed by force of the law if it has not become conclusive at the time of lodging the appeal. 

The appellant shall in these cases deposit in the appeal court upon submitting the appeal a security in the sum of two thousand Dirhams; and the depositing of one security amount shall be sufficient in case of several objectors if they make their objection by one petition even though the challenging reasons are different.

Article 159:

The time for appeal shall be thirty days unless the law provides otherwise however in summary matters the time shall be ten days.

Article 160:

If a judgment is awarded on the basis of fraud committed by parties to a lawsuit according to a forged document, on the basis of perjury or failure to produce a conclusive document in the lawsuit detained by a party, the time for appeal of the judgment shall not begin until the day on which such fraud is disclosed, the forger confesses his act, its occurrence is proved, the perjurer is convicted or from the day on which the detained paper is disclosed.

Article 161:

  1. An appeal against a judgment on the alternative demand shall inevitably follow the judgment on the original demand, in which case the decree holder in the original demand shall join the appeal even after the lapse of time.
  2. If the court of appeal cancels the judgment on the original demand, the court of appeal shall send the case back to the court of first instance to dispose of the alternative demand.

 

Article 162:

  1. An appeal shall be submitted by a memorandum, be lodged with the registrar of the competent court of appeal, and shall be entered immediately in the register maintained for this purpose.  The memorandum shall include a statement of the appellate judgment, its date, the grounds of appeal, the demands and the particulars related to the names of the litigants, their capacities, the domicile of each one and the selected domicile of the applicant in the place where the headquarters of the competent court of appeal is located.
  2. The appellant shall present copies of the appeal memorandum equal to the number of the appellants with a copy to the registrar, and with documents in support of his appeal attached thereto.
  3. Nevertheless, the appellant may produce the grounds if his appeal up to the date of the first session fixed for hearing the appeal; otherwise, his appeal shall be adjudged as unacceptable.

 

Article 163:

  1. The registrar of the court to whom the appeal is submitted shall apply for the joinder of the first instance action record on the day following the submission of the appeal. 
  2. The registrar of the first instance court that passed the judgment shall send the case file within ten days at most from the date it was demanded; however, this period shall be reduced to three days in summary cases.

 

Article 164:

  1. Up to the date of the first session of the pleading, the respondent may submit an appeal either by the normal procedures or by a brief note including the grounds of his appeal.
  2. The appeal referred to in the preceding paragraph shall be considered a counter appeal if it is filed within the time of appeal; however, it will be considered a subsidiary appeal if it is filed after the fixed time or if its submitter has accepted the judgment prior to the submission of the original appeal.
  3. The subsidiary appeal shall follow the original appeal and shall be extinguished if the original appellant has waived his appeal or if the original appeal has been dismissed as to the form; however, the counter appeal shall not abate with the extinction of the original appeal regardless of the manner in which it is submitted.

 

Article 165:

  1. The appeal shall reinstate the case entirely as it existed prior to the issuance of the appellate judgment solely with respect to the points about which the appeal has been lodged.
  2. The court shall hear the appeal on the basis of the evidence, exceptions and new aspects of defence submitted to it, and whatever has been brought to the court of first instance.
  3. New demands in the appeal shall not be acceptable, and the court of its own accord shall determine their non acceptibility.  However, the wages, salaries and all other accessories that become due after submission of the final demands before the court of first instance and any excess compensations after submission of these demands may be changed and an addition thereto may be made, provided that its subject remains intact.
  4. None who is party to the action in which an appellant judgment has been given may be admitted in the appeal and none may intervene in the appeal except the person who seeks to join any of the parties or considers the appellate judgment a plea against him.
  5. The appeal of the judgment that ends the litigation shall inevitably call for the appeal of all previous judgments already passed in the case unless they have been expressly accepted subject to the provisions contained in Paragraph 1 of this article.

 

Article 166:

If the court of first instance has ruled on the merits and the court of appeal considers the judgment or the proceedings to be invalid in a manner that affects the judgment, it shall cancel it and pass a new judgment in the case; however, if the court of first instance renders a judgment concerning lack of jurisdiction or acceptance of a secondary pleading that has consequently prevented the proceeding with the case and if court of appeal has decided to cancel the judgment and restore the jurisdiction of the court or to reject the secondary exception and to hear the case, it shall send the case back to the court of first instance to judge on its merits.

Article 167:

In all cases the court shall award a judgment in favor of abandonment of the litigation in the appeal if the appellant waives his right to appeal.

Article 168:

The appeal shall be governed by the rules and procedures applicable to the case before the court of first instance unless the law provides otherwise.

Methods of Objection to Judgments Under UAE Law

 

Federal Law No. 11 of 1992 The Civil Procedure Law

Article 150:

  1. Objection to judgments may not be made except by the party against whom they were issued.  Challenges may not be made by the party who has accepted the judgment expressly or tacitly or by the party whose demands have been met by the judgment, unless otherwise provided by law.
  2. The objector shall not be jeopardized by his objection.

 

Article 151:

Objections shall not be made against judgments issued during the proceedings of the case, and shall not end the litigation until after the award of a judgment ending the entire litigation with the exception of provisional and summary judgments, those staying the action, and judgments subject to compulsory execution for the lack of jurisdiction as well as judgments accepting the jurisdiction if the court has no jurisdiction over the case.

Article 152:

  1. The time for objection to a judgment shall begin the day following its issuance unless the law provides for otherwise and said date shall commence from the date of notifying the judgment to the adjudged party in case he fails to appear in all sessions specified for looking into the case further to his failure in submitting a memorandum in all following sessions to expedite the case after the proceedings thereof have been suspended for any reason.
  2. The time shall start from the date of pronouncement of the judgment, if any cause for discontinuance of litigation occurs and the judgment is issued without litigation by the person acting on behalf of the person who died or lost his competence in the litigation or whose capacity no longer exists.
  3. The judgment shall be notified to the adjudged party in person at his domicile or at his place of work and said date shall also be effective in respect of the person who serves the notification of the judgment.
  4. Failure to observe the times prescribed for challenge of judgments shall cancel the right to challenge, and the court shall decide the lapse of its own accord.

 

Article 153:

The time prescribed for challenge shall cease upon the death of the adjudged party or upon his loss of competence for litigation, or if the capacity of the person acting on his behalf in the litigation ceases to exist.  However, the cessation shall not elapse until after notification of the judgment has been served upon the heirs at the last domicile of their testator or upon the person placing the one who has lost his competence for litigation or whose capacity has ceased to exist.

Article 154:

  1. If the decree holder dies during the time of the challenge his litigant party may file the challenge and serve notice thereof upon the heirs of the deceased jointly without mentioning their names and capacities at the last domicile of their testator.  Thereafter, the notice of challenge will be served again upon all the heirs in their names and capacities in person or at the last domicile or place of work for each of them, before the time fixed for the session to hear the challenge or at such time as is fixed by the court for summoning the heirs who were summoned to the first session and did not attend; however, if it is a summary case, it shall suffice to re-summon the challenge to the apparent heirs.
  2. If the decree holder  has lost his competence for litigation during the time of challenge of if the capacity of the person who was acting in litigation on his behalf has ceased to exist, the challenge may be submitted and delivered to the person who has lost his competence or the incapacitated person who was acting in the litigation on his behalf of the litigant party in person or at his domicile or at his place of work before the time fixed for the hearing, or at such time as is fixed by the court in accordance with the above.

 

Article 155:

  1. The challenge shall be delivered to the litigant party in person or at his original domicile or at his place of work or he may be notified at his selected domicile shown in the judgment notice.
  2. If the respondent is the plaintiff or the appellant, if he has not shown in the plaint or in the appeal memorandum his original domicile or place of work and if these particulars are not shown in other case papers he may be summoned at the last selected domicile shown by him in the plaint or in other case papers and if the selected domicile is not shown in the plaint or in the other papers, he may be notified according to paragraph 5 under Article 8 of this Law.

 

Article 156:

  1. None shall benefit from the challenge except the appellant and it may only be the subject of objection against the respondent; however, if the subject matter of the judgment is against as indivisible or joint liability or lawsuit in which the law requires litigation of particular persons any of the adjudged parties who have missed the time of challenge or accepted the judgment may object to it while the challenge submitted by his co-respondent is being heard, and shall join him in the demands; however, if he fails to do so, the court shall order him in his demands; however, if he fails to do so, the court shall order the appellant to join him in the challenge, and if the challenge is made against any decree holder on time, the rest of the parties shall join the litigation even after the lapse of time for them.
  2. If the challenge is submitted in time by the guarantor or by the demandant of guarantee against the judgment given in the original lawsuit and if their defence against the judgment was the same, the person who has missed the time or who has accepted the judgment may join his codefendant in challenging it.  If the challenge is made in time against either one of them, he may one the other party even after the lapse of time for him.
  3. The guarantor and the demandent of the guarantee shall benefit from the challenge filed by either one of the against the judgment in the original action if their defence therein was united.

 

Article 157:

  1. Documents may not be returned to the litigant parties who produced them until after the time for the challenge has elapsed or until the challenge is disposed of.
  2. Nevertheless, photocopies of such documents may be given to the concerned parties at their request.
  3. If necessary, the original documents may be handed over by order of the judge or the president of the circuit, as the case may be, and a copy thereof shall be kept attested by either one of them and stamped with the seal of the court.

Power of Attorney Under UAE Law

 

Power of Attorney Under UAE Law Federal Law No. 11 of 1992 The Civil Procedure Law

Article 55:

1. The Court shall accept from the parties whoever they appoint as an attorney according to the law.

2. The attorney shall prove his power of attorney on behalf of his client by a letter of attorney.

3. The power of attorney may be made by a report recorded in the hearing record.

Article 56:

1. It shall be assumed from the power of attorney given by either party that the domicile of his attorney is given in the papers required for case proceeding showing the degree of litigation assigned to him. The litigant who has no attorney in his place where the premises of the court exists shall take residence in such place.

2. The attorney’s resignation or dismissal shall not prevent the case proceedings against him unless the party declares that he has appointed a replacement for him or decides to proceed with the case by himself.

3. The attorney may not resign the power of attorney at an unsuitable time and without permission from the court.

Article 57:

The power of attorney shall confer upon the attorney the authority to proceed with the deeds and procedures required to institute, follow up and defend the suit and to take interlocutory actions until the judgment on merits of the suit has been passed subject to the degree of litigation assigned to him and until such judgment has been pronounced without prejudice to the matters in which the law stipulates a special delegation of power.

Article 58:

1. Whatever the attorney states in the session in presence of his principal shall be deemed to have been stated by the principal himself unless it is disclaimed by the latter during the hearing in the same session.

2. Without a special delegation of power it shall be invalid to admit the right in dispute waive it, arrange a compromise or arbitration, accept, direct, or divert the oath taking, abandon the litigation relinquish the judgment in all or in part or one of the appellate steps redeem the seizure, abandon the warranties without settlement of the debt sue for forgery, object to the judge, the expert or the true offer or accept it or to any other act for which the law requires a special delegation of power.

Article 59: None of the judges or the attorney general or any member of the prosecution or any of the court staff shall be an attorney for the litigant parties in the appearance or in the proceeding whether verbally or in writing, even though the suit is instituted before a court other than that to which he belongs, otherwise the act will be void; however, they may do so for those whom they legally represent as well as for their wives, their ascendants and descendants up to the second degree.

UAE Laws and Islamic Finance

Laws of the UAE and Islamic Finance