UAE Laws and Islamic Finance

Laws of the UAE and Islamic Finance

Archive for May 4, 2010

Intervention of the Public Prosecution in UAE Litigation

 

Federal Law No. 11 of 1992, The Civil Procedure Law

Article 60:

The public prosecution shall raise the action in the cases provided for by the law and in these cases they shall be entitled to such rights as the litigant parties.

Article 61:

Except for the summary actions, the public prosecution shall intervene in the following cases, otherwise the judgment will be void:

  1. The legal actions that it may submit by itself;
  2. The challenges and motions brought before the Supreme Federal Council except objections for cessation in the civil articles.
  3. The legal actions related to the charitable endowments (WAKFS), gifts and the legacies allocated to the charity.
  4. Legal actions for recusation of judges, members of the prosecution and to contest against them.
  5. Any other case in which the intervention is a mandatory provision under the law.

 

Article 62:

Except for the summary actions, the public prosecution may intervene in the following cases:

  1. Lack of competence for the lack of jurisdiction by the judiciary.
  2. The compromise preventing the commercial bankruptcy.
  3.  The actions in which it considers intervention justified for its relevance to the public order or morals.
  4. Any other case where the law provides that it may intervene.

 

Article 63:

At any stage of the legal proceeding, the court may order the suit record to be sent to the public prosecution, if it displays a matter related to the public order or morals and the intervention by the public prosecution in this case shall be obligatory.

Article 64:

  1. The public prosecution shall be represented in the action once a brief of its opinion has been submitted, and its appearance is not necessary unless the law provides for that.
  2. In all cases, the appearance of the public prosecution is not necessary, upon pronouncement of the verdict.

 

Article 65:

In all cases in which the law provides for the intervention of the public prosecution, the court registrar shall inform the prosecution in writing upon making entry of the lawsuit.  If a matter that requires the intervention of the prosecution has been presented during the hearing, a notification thereof shall be made according to an injunction from the court.

Article 66:

Upon its request, the public prosecution shall be given seven days at least to submit a brief of its opinion and this period shall begin from the day the case record has been sent.

Article 67:

The public prosecution may intervene at any stage of the proceedings before the closure of the pleadings.

Article 68:

Once the public prosecution has presented a brief of its opinion and demands and in all cases where it is a joined party, the suitors may neither demand to speak nor to submit new briefs.  However, they may present to the  court a written statement for correcting the facts stated by the public prosecution yet in exceptional cases where it may accept new documents or supplementary notes, the court may permit such documents or notes to be supplied and the pleadings to be re-delivered and the public prosecution shall be the last to speak.

Article 69:

The public prosecution shall challenge the judgment in the cases where the law stipulates or permits its intervention, if the judgment contravenes any rules of public order or if the law provides for that.

Expenses of the Case in UAE Litigation

 

Federal Law No. 11 of 1992, The Civil Procedure Law

Expenses of the Case

 Article 133:

  1. Upon award of the judgment, which ends the dispute of its own accord, the Court decides upon the question of the suit expenses.
  2. The defeated party shall be ordered to bear the expenses of the case.  The expenses shall be divided among them equally or in proportion to the interest of each in the case, according to the court’s estimation. The litigants may not be jointly obliged to pay the expenses unless they are jointly liable in the judgment.
  3. The Court shall order the intruder to pay the expenses of intrusion if he has independent demands, if his intrusion was not accepted, or if his demands were dismissed.

 

Article 134:

The court shall require the decree holder to bear the expenses in whole or in part if he has caused the spending of unnecessary expenses or if he has left his opponent unaware of conclusive documents relevant to the case in his possession or of the contents thereof.

Article 135:

If each litigant fails to meet some demands, the court may order each party to bear the expenses he has incurred or to divide the expenses between them as the court at its discretion may estimate.  The court may also order either party to bear all the expenses.

Article 136:

  1. The court may award damages in consideration of the expenses arising from a case or defence which was presented with malicious intent.
  2. Without prejudice to the content of Article 133, the court may, upon passing a final judgment on the merits of the case, sentence the party who assumes or submits a malicious demand, exception or defence, to a fine not exceeding 1000 AED.

Rendering of Judgment in UAE Litigation

 

Federal Law No. 11 of 1992, The Civil Procedure Law

Article 125:

Judgments shall be issued by federal courts and executed in the name of the president of the state.

Article 126:

After a case is heard and during the deliberations, the court may not hear any of the parties or his attorney except in the presence of his adversary.  Nor may it accept documents or notes from any of the parties without showing them to the other party; otherwise, the procedure will be void. 

Article 127:

  1. Once the pleadings on the action are closed, the court shall either pass judgment or postpone the judgment to another session to be fixed within a short time.  The court may not adjourn the rendering of judgment thereafter more than once without necessity.  However, in either case, the period of adjournment may not exceed one month.
  2. When the court fixes a session for pronouncement of the judgment, it may only adjourn the judgment or remit the case again for pleadings by a justifiable decision which shall be declared in the session and entered in its record and the pronouncement of this decision shall be considered a notice to the litigant parties of the new date.

 

Article 128:

  1. Deliberations on judgments shall be conducted in closed session among the judges together and no one other than the judges who have heard the pleadings shall take part in the deliberations.
  2. The president shall take the opinions of the junior judges, followed by the senior judges, and then give his own opinion.  Judgments shall be rendered unanimously or by a majority of opinions, and the opposing opinion shall be recorded in the draft judgment; however, if a majority was not obtained and there were more than two conflicting on opinion was divided into more than two, the minority group or the group that consists of the newest judges shall join either one of the two opinions held by the majority group after taking the opinions once more.
  3. The judgment shall be pronounced openly by the judge or by the president of the circuit as the case may be.
  4. The judge who took part in the deliberations shall attend the pronouncement of the judgment; however, if any of them has a reason which altered his jurisdiction, he ought to have signed the draft judgment and this should be entered in the hearing record.

 

Article 129:

  1. In all cases the judgments shall contain the grounds on which they are based.  The draft judgment that contains its grounds and duly signed by the president and judges shall be lodged in the case file upon pronouncement of the judgment.
  2. In the summary cases, the draft that contains the reasons of the judgment shall be deposited in the case file within three days at the most from the date of pronouncement of the judgment if the judgment was pronounced in the pleading session.
  3. The draft that contains the decree and its grounds shall be kept in the case record.
  4. The breach of the rules stated in the paragraphs (1) (2) shall render the judgment void.

 

Article 130:

  1. The judgment must specify the court that has passed the judgment, date of its issuance, its place, kind of the case and names of the judges who heard the pleadings of the judgment, took part in the judgment and attended the pronouncement and the member of the public prosecution who gave his opinion in the case, if any, and the names of the litigant parties, their surnames, capacities, and the domicile of each one or the place of his work and their appearance or nonappearance.
  2. The judgment shall include a brief statement on the merits of the case and then the demands of the parties and a brief note on their substantial defence and the opinion of the prosecution and after that the grounds of the judgment and decree.
  3. The inadequacy of the practical grounds of the judgment and the shortcoming or the gross error in the names and description of the litigant parties and the failure to record the names of the judges who have awarded the judgment shall render the judgment void.

 

Article 131:

  1. The president of the session and its secretary shall sign the transcript of the original judgment containing the facts of the case, the grounds and the decree within three days of depositing the draft in summary cases and within ten days in other cases and such transcripts shall be kept immediately in the case record.
  2. However, if a cause occurs that prevents the president of the session from signing the original judgment transcript or hinders the signing in a manner that jeopardizes justice or the interests of the parties, the president of the court or whoever acts on his behalf shall sign thereon.  If such a cause prevents the clerk of the session from signing, the chief clerk may sign on his behalf and these occurrences shall be noted in the margin of the original judgment transcript.

 

Article 132:

  1. The judgment transcript according to which the decree is executed shall be stamped by the court seal and shall be signed by the clerk after appending to it the executory order.  It shall only be delivered to the party who has an interest in execution of the judgment, provided that the judgment is legally executable.
  2. A duplicate executor transcript may not be handed over to the same person unless the first original transcript is lost or cannot be used, and upon an order from the judge or the head of the circuit, as the case may be.
  3. A simple copy of the original judgment transcript may be issued to any of the parties concerned at his request and shall not be given to others except by permission from the judge or the president of the circuit, as the case may be.

Pleading in UAE Litigation

 

Federal Law No. 11 of 1992, The Civil Procedure Law

Article 84:

  1. Exception of the lack of local jurisdiction and exception to the remitment of the case to another court because the same dispute has been initiated before it or because of relevance, and the exception to the nullity irrelevant to public order and all other exceptions irrelevant to such procedures shall be pleaded together before initiation of any other procedural pleadings, any demand or defence in the lawsuit or the lack of allowance; otherwise, the right to sue any of them shall elapse much the same as the right of the objector to these pleadings shall be extinguished if he fails to introduce them in the challenge plaint.
  2. All grounds pertaining to the exception of the procedures that have no relevance to public order shall be submitted together; otherwise the right to except shall elapse against those which are not submitted.

 

Article 85:

  1. Pleading the non competence of the court for lack of jurisdiction or because of the nature of the legal action or its value may be submitted at any stage of the action and the court shall adopt it of its own accord.
  2. If the Court decides its lack of competence it shall order the remittance of the action as it is to the competent court and the clerical section of the court shall notify the adversaries of the judgment.

 

Article 86:

If the parties to the legal action agree to proceed with the action before a court other than that before which the action is brought, the court may order the remitment of the action to the court they have agreed upon.

Article 87:

If the dispute has been raised to two courts, the plea for remitment shall be submitted to the latter before, which the action was raised to dispose of the dispute.

Article 88:

The plea for remitment on account of relevance may be made before either court but the action shall be heard by the court to which it has been remitted.

Article 89:

  1. Whenever the Court remits a dispute in the preceding cases, it may fix a date for the parties for a hearing before the court to which the action has been remitted; and the registrar shall inform the absent parties of said date.
  2. If no date has been fixed by the court for the parties, the Court to which the action has been remitted shall fix a date for the hearing and summon the parties accordingly.
  3. The Court to which the action has been remitted shall hear the action unless it is incompetent to do jurisdictionally or qualitatively.

 

Article 90:

The nullity of notices of plaints and summons arising from a defect in the notice, in the court’s name or in the date of the session shall be ineffective if the summoned party appears on the date fixed in the summons or if he deposits his statement of defence without prejudice to his right to adjournment to complement the time for appearance.

Article 91:

  1. A plea for non-allowance of the legal action may be made at any stage of the action.
  2. If the Court considers that the plea for non-acceptance of the legal action due to the incompetence of the defendant is established on a proper basis, the action shall be adjourned in order to summon the competent defendant at the request of the plaintiff.
  3. If the action is filed against a governmental authority or public juridical person, the effect of the correction shall take effect retroactively from the day on which the action was instituted, even though the correction was made after the time prescribed for its institution.

 

Article 92:

The defence of Res Judicata can be submitted at any stage of the action and the court shall spontaneously rule on it .

Article 93:

The court shall pass its judgment on the pleas independently unless it orders that these be annexed to the merits.  The court shall then award its judgment on both the pleas and the merits.

Order of the Session in UAE Litigation

 

Federal Law No. 11 of 1992, The Civil Procedure Law

Article 76:

Pleadings shall be public unless the court of its own accord or at the request of any party to the dispute prefers it to be in a closed session so as to maintain public order or to observe morals or family privacy.

Article 77:

The Court may be assisted by an interpreted appointed or licensed by the Ministry of Justice or by the competent authority.  It may also be assisted by an interpreter from any other authority if it considers this necessary.

Article 78:

  1. The parties to the lawsuit shall be called at the time fixed for the trial.
  2. The plaintiff shall have the right to begin unless the defendant admits additional facts that rebut the case of the plaintiff, in which case the right to begin shall be vested in the defendant.
  3. a.) The party to the dispute who has the right to begin shall state his case and produce evidence in support thereof.  Thereafter, the other party shall state his defence and produce evidence to prove his case.  b.) The party who begins the action shall produce evidence to refute the evidence of the other party.  c.) The Court shall hear the pleadings of the parties and the defendant shall be the last one to speak.
  4. The Court shall question the parties to the dispute and shall hear whosoever testimony it deems necessary.

 

Article 79:

At any stage of the proceedings, the parties to the dispute may request the court to record whatever they have agreed upon in the record of the session, and it shall be signed by them or by their authorized attorneys.  However, if they have written whatever they have agreed upon, the written agreement shall be appended to the record of the session and its contents shall be entered in the record.  In both cases, the record of the session shall have the force of the executor deed, and a transcript of its text shall be given according to the rules stipulated for handing over the transcripts of the judgments.

Article 80:

Maintaining order and discipline in the session shall be entrusted to its head, and subject to the rules of the Advocates Act he shall order anyone who violates the rules of discipline to get out of the session hall.  If he refuses to obey the court order and persists in his wrongdoing, the court shall immediately order his detention for 24 hours or fine him not less than 1000 AED and not more than 3000 AED and its judgment shall be final.  The court shall have the option to dismiss the order issued according to the preceding Article before the end of the session. 

Article 81:

The court may of its own accord order the erasure of words injurious to or in violation of common order or morals from any of the pleading papers or brief notes.

Article 82:

Without prejudice to the Advocates Act, the head of the session may order that a record for each crime committed during the hearing be made and conduct whatever investigations he deems necessary.  Then he shall order that the inquiry be referred to the public prosecution to take the necessary action.  However, if circumstances so require, he shall order the arrest of the accused.  

Article 83:

  1. Subject to the rules of the Advocates Act, the court shall try anyone who commits an act of trespass against the body of the court or any of its members or any of the court staff during the hearing and shall sentence him to punishment instantaneously.
  2. The Court may also order the detention of anyone who commits perjury in the session and shall refer him to the public prosecution.
  3. The judgment of the court in such case shall be executed even though it has been appealed.

Proceedings of the Session in UAE Litigation

 

Federal Law No. 11 of 1992, The Civil Procedure Law

Article 70:

The pleading will take place in the first session, however, if the plaintiff or the defendant produces in this session a document, which he could have produced within the time stipulated in Article 45, the court shall accept it if it does not lead to the adjournment of the hearing, however, if the acceptance of documents leads to the adjournment of the hearing, the court may of its own accord or according to the request of the adversaries sentence him to a fine not less than two thousand Dirhams and not exceeding five thousand Dirhams.  Notwithstanding that, the plaintiff as well as the defendant may produce documents in response to the defence or the incidental demands of his adversary.

Article 71:

If any one of the court staff or the adversaries fails to deposit the documents or to perform any of the pleading procedures within the time fixed by the court, he will be sentenced to a fine not less than 500 (five) hundred Dirhams and not exceeding three thousand Dirhams.  This shall be made by a decision entered in the record of the session and it shall have the executive force of the judgment and shall not be objectionable in any way; however, the court may relieve the adjudged party from the fine in all or in part if he gives a reasonable excuse.  However, the court may, instead of sentencing the plaintiff to a fine, decide to suspend the case for a period not exceeding three months unless objected to by the defendant.

Article 72:

The fine sentence issued according to Articles 70 and 71 may be executed by the court, which has passed it after the adjudged person has been notified if he has not been present in the session.

Article 73:

  1. The Court may allow the litigants, during the case proceedings to submit documents or defences or new means of evidences or to amend their demands or to submit incidental demands.  The pleading of the parties are taken notice of by submission to the registrar or by exchanging them, however, the original copy shall be endorsed by the party concerned to this effect.
  2. The court shall spontaneously inquire from the litigants about any discrepancy in the suit or in the documents.
  3. When the suit is held for judgment, the court may allow final submissions to be exchanged within fixed times.

 

Article 74:

The Court shall propose a compromise and therefore it shall order the parties to appear in person, however, if the compromise is reached, it shall be entered in the session record or the agreement between them shall be annexed to the record and shall be signed, in all cases, by both parties, as well as the judge and the secretary and the record shall be deemed to have the force of an executor deed.

Article 75:

The Court may not adjourn the suit more than once for one reason attributable to one of the parties except for a reasonable excuse and provided that the period of adjournment shall not exceed two weeks.

Commencement of Proceedings in UAE Litigation

 

Federal Law No. 11 of 1992 The Civil Procedure Law

Institution of a Legal Action and Its Entry Into the Record:

Article 42:

The civil action shall be submitted to the court at the request of the plaintiff by a plaint to be deposited with its registrar.  The plaint shall include the following details:

  1. The name of the plaintiff, his surname, profession or job, place of his domicile and place of his work.
  2. Name of the defendant, his surname, profession or job, his domicile, place of his work, name of his representative, his surname, profession or job, his domicile and place of his work if he works for others, however, if the defendant or his representatives domicile or place of work is unknown, his last domicile or place of residence or place of work.
  3. If the plaintiff has no domicile in the state, a selected place of residence shall be given.
  4. The course of action, the demands and the supporting evidence.
  5. Date for submission of the plaint to the court.
  6. The court before which the action has been brought.
  7. Signature of the plaintiff or his representative.

 

Article 43:

  1. The time fixed for appearance before the court is ten days, however, when necessary, this period may be reduced by three days.
  2. The time given for appearance in the urgent cases shall be twenty four hours, however, when necessary, such time may be reduced to be from one hour to another provided the summons is given to the party himself unless the action is under the maritime law.
  3. The reduction of time in the preceding cases shall be permissible by the President of the court or by the judge of the summary proceedings as the case may be. A copy thereof shall be notified to the party with plaint. 
  4. Failure to observe the times for appearance shall not render the procedure invalid without prejudice to the right of the summoned person in adjournment.

 

Article 44:

  1. After payment of the fees, the registrar shall make entry of the suit in the special register for this purpose, showing the date of entry.  He shall also register in the plaintiff’s or his representative’s appearance, the date fixed for hearing on the original plaint and its photocopies, and the plaintiff or his representative shall sign as an acknowledgment of his notification of the date of hearing.
  2. The action is considered to have been submitted and effective from the date of its registration.

 

Article 45:

  1. The plaintiff, upon submitting his plaint, shall provide as many photocopies thereof as the number of the defendants together with a photocopy to the registrar to be kept in a special file.  The plaintiff shall also submit with the plaint, photocopies of all documents in support of his case.
  2. The defendant shall deposit a statement of his defence and photocopies of his documents duly signed by him, at least three days prior to the session fixed for hearing.
  3. When the genuineness of the Photostat documents is contested, the court shall fix a nearest hearing for production of the original documents.
  4. The documents written in a foreign language shall be officially interpreted.

 

Article 46:

  1. On the day following the registration of the plaint at the most, the registrar shall hand over a Photostat copy of the plaint together with the accompanied photocopies, papers and documents to the summons service office so as to serve the summons on the special summons forms and return the original summons to the registrar.
  2. A notice of the plaint shall be served within ten days at the most, from the date of its being handed over to the summons server, however, if the date fixed for hearing falls within this period, then the notice shall be served before such date.
  3. Failure to observe the time specified in the previous two articles shall not render the procedurings invalid.

 

Article 47:

If the plaintiff and the defendant appear by themselves, before the court, and refer a dispute to it, the court may hear and dispose of the dispute immediately if possible, otherwise it shall fix another session. The registrar shall complete the procedures of its entry in the time table and the procedures of litigation shall be immediately recorded in the minutes of the session.

Joinder of third-parties in UAE Litigation

 

Federal Law No. 11 of 1992, The Civil Procedure Law

Joinder of third parties to litigation proceedings in the UAE is possible under Articles 94, 95 and 96 of the Civil Procedure Law after filing the case but before the issuance of the judgment in the Court of First Instance.  It is also possible but rare to join parties at the appeal stage. 

Article 94 states:

The party to an action shall be allowed to admit in the suit anyone who would have been a party when it was raised.  If the defendant claims that he is entitled to have recourse against someone who is not a party to the action to recover the subject matter of the suit, he shall submit a written application to the court showing the nature of such a claim and its grounds and shall apply for admission of such a person as a party to the action through the normal procedures followed for submission of the action.  If the person whose admission is requested appears and approves before the court, he may be admitted to attend the hearing.

Article 95 states:

Anyone having an interest may intervene in the action by joining one of the parties or seeking the judgment for himself through a petition related to the action and by the usual procedures for submission of the action or by applying verbally in the session in the presence of the parties, and shall be entered in its process record; however, intervention after closure of pleadings shall not be accepted.

Article 96:

  1. The Court may spontaneously order the admission of anyone whom it considers necessary for the interest of justice or for disclosure of the truth.  The court shall fix the session to which he shall be summoned, determine his position in the dispute and order him to be summoned for that session in the usual procedures followed in raising the action.
  2. The Court may also assign the registrar to send an adequate summary of the demands of the parties to a legal action to any person whose knowledge thereof is necessary for the interest of justice or for disclosure of the truth.

 

According to Al Tamimi, generally, the claimant is entitled to join another defendant in the action if there is ‘just cause’ why he or she had failed to join him or her at the commencement of the proceedings.  (Supreme Court of Cassation Judgment 332 dated 21 March 1995; Dubai Court of Cassation Judgment 478/98 dated 13 march 1999; Dubai Court of Cassation Judgment 46/2000 dated 20 May 2000).[1] 

According to Omer Eltom, Dubai Supreme Court held in Cassation Petition 198 of 2000 that the joinder procedure is intended for joining persons who could have initially been sued along with the defendant and not persons who might have been sued instead of the defendant.  This rule was also confirmed by the judgment in Cassation Petition 70 of 2000.[2]

 

Under UAE Law, aside from the claimant, it is also possible for a defendant, a third party, and the court itself to join a third party to the proceedings. 

Omer Eltom states that in most reported cases such as Cassation Petition 328 of 2004, it was held that a joinder application may be filed by a defendant at any time before closure of pleadings and reserving the case for judgment by a written application to the Court of First Instance.  However, a defendant’s unilateral request to join a third party is restricted to the Court of First Instance stage.  (Cassation Petition No. 427 of 2002).   

According to Al Tamimi, it is also possible with the proper legal grounds for a third party who is not a party to the action to apply to the court to be joined as a claimant or a defendant.  This would be possible for example if a third party was entitled to a remedy jointly with the current original claimant.  (Dubai Court of Cassation Judgment 236/97 dated 18 October 1997; Cassation Petition 354 of 2002; Cassation Petition No. 51 of 2001)

Joinder for the Purpose of Evidence:

A person may be joined to a proceeding for the purpose of obligating the joinee to produce documents based on Article 96 of the Civil Procedure Law and Article 20 of the Evidence Law.  (Cassation Petition 265 of 2000; Cassation Petition 115 of 2001). 

Joinder in the Court of Appeal:

According to Article 165(4) of the Civil Procedure Law, certain conditions must be met in order for applicants to be joined to proceedings at the appeal stage.  According to Al Tamimi, these conditions are 1.) A person requesting to be joined to one of the adversaries; 2.) A person who is adversely affected by the appealed judgment.  (Supreme Court of Dubai Cassation Petition 328 of 1998; No. 13 of 1999)

Article 165(4) of the Civil Procedure states:

None who is not a 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.

Joinder by the Public Prosecution:

The public prosecution must join such suits as stipulated by Article 61 of the Civil Procedure Law.

Article 61 states:

Except for the summary actions, the public prosecution shall intervene in the following cases, otherwise the judgment will be void:

  1. The legal actions that it may submit by itself;
  2. The challenges and motions brought before the Supreme Federal Council except objections for cessation in the civil articles.
  3. The legal actions related to the charitable endowments (WAKFS), gifts and the legacies allocated to the charity.
  4. Legal actions for recusation of judges, members of the prosecution and to contest against them.
  5. Any other case in which the intervention is a mandatory provision under the law.

 


[1] Essam Al Tamimi, Practical Guide to Litigation and Arbitration in the United Arab Emirates, p. 63.

[2] Omer Eltom, The Emirates Law in Practice, p. 364.

UAE Laws and Islamic Finance

Laws of the UAE and Islamic Finance