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Res judicata in Sharjah Rent Law

Guiding Principle

In the following article a closer look shall be taken at a certain  matter concerning Sharjah rent disputes: How is the problem of res judicata to be tackled in Sharjah Rent law Cases? Moreover, what arguments can be used to prevent the re-trialing of a case that has already been judged?

The matter will be discussed under the following aspects: Firstly, a brief overview of Sharjah Legislation shall be given. Then the exact wording of the Text shall be examined for being a base to treat the problem of res judicata and prevent the occurrence of double judgment in the same case. Secondly, context argument from the law and other laws shall be taken into account. Thirdly, references shall be made to Islamic Law, which can still have a significant influence on local Legislation in the UAE.

I. Introduction

Rent committees are a special form of judicial body in the UAE. Though shaped like a court in appearance and procedure, they are part of the administration. The right to settle rental dispute is usually assigned to them and hence excludes a trialing of these conflicts in the ordinary courts. Since the legislation for rents-specific issues rests with the Emirates rather than the Federation, each Emirate has its own Rent Law for content issues and its own legislation for the establishment and procedures in front of rent committees. For legal consultants rent committees are of special importance, as they are one of the few places, where legal consultants can find themselves in court like procedures, which are usually assigned to UAE Barristers only.

II. Legal Basis

Sharjah Law 2/2007 governs rent disputes in Sharjah (Sj-2/2007). This law assigns rent disputes in general to the Sharjah Rent committees. Two types of committees can be distinguished:

– Rent Committees of First Instance

–  Rent Committees of Appeal.

Their establishment procedures are determined by the Articles 21 ff. of Sj-2/2007. Every dispute is initially tried at the Rent Committees of First Instance according to Article 22  Sj-2/2007.

Art. 21 Jurisdiction to Immediately Determine Disputes

The Committees shall have jurisdiction to immediately determine disputes resulting from the Tenancy Contract including the consideration of the application of the temporary and immediate procedures applied by any of the Tenancy Contract’s parties as per the provisions of this Law, its executive regulations and the resolutions issued for it.

Articles 23-25 Sj-2/2007 determine the possibilities for appeal. A distinction is made between several types of appeal.

– The regular appeal, which according to Art. 23 Sj-2/2007 applies to cases worth more than 100,000 AED, whereas the committee can adjust the amount.

–  The exceptional appeal, which according to Art. 24 Sj-2/2007 applies in a number of enumerated cases only.

The Decisions of each of the types of committees take the following form and status according to Sj-2/2007:

–  Decisions of the Rent Committees of First instance shall be “final (نهاﺌﻳﺔ)” unless they exceed the above mentioned value(Art. 23 Sj-2/2007)

–  Decisions of the Rent Committees of Appeal shall be “conclusive[1] and unchallengeable by any way of challenging (نهائية وغير قابل للطعن بأي طريق من طرق الطعن )” (Art. 30 Sj-2/2007).

III. Arguments from the Wording

The wording of Sj-2/2007 describes the decision of both rent committees as “final (نهائي)“. “Final” can only mean that this decision cannot be tried another time by a first instance judgment and is to be seen as binding for any further first instance trial. Additionally the wording of Art. 23 Sj-2/2007 declares only those judgments as final that do not exceed the appeal-value. Thus, “final” in itself cannot comprise the option of challenging the decisions by the ways of legal challenging. In consequence, the word “final” is included in the law for the sole purpose of preventing new first instance procedures in the issue. This also explains, why an exceptional appeal is still possible, though a judgment is final and it explains, why Art. 30 Sj-2/2007 adds to the word “final” the expression “unchallengeable by any way of challenging”. In consequence a judgment of the Rent Committee of Appeal settles the case once and forever and in particular it prevents new cases at first instance from being filed as long as the implicitly or explicitly challenge the given decision.

IV. Contextual and Systematical Arguments

(1)  As long as Law Sj-2/2007 does not specify any special procedure, arguments from other laws have to be taken into account in order to fill existing gaps. Since the discussed issue has take its place in the procedural section of the Law Sj-2/2007 provisions of other procedural laws have into account. Since the rent committees in Sharjah take over some part of the civil jurisdiction and the Decree establishing them explicitly mentions an invocation of the Civil Procedures Law AE-11/1992 in its preamble.

The Emirates Criminal Procedure Code (AE-35/1992) states in Art. 20 AE-35/1992 that as soon as a conclusive (بات) judgment has been reached all accusations in this issue are considered dropped. Through Art. 1 Nr. 5 AE-35/1992 this provision is applied mutans mutandis also to the civil courts. In this case it makes no difference that two different expressions like final and conclusive are used. Final judgments (نهائية) in Arabic judicial Terms mean, that a judgment cannot be challenged by any ordinary ways of challenging. The term conclusive judgments (باتة) implies, that additionally to the ordinary ways even the extraordinary ways of challenging are not accepted.

(2)  AE-11/1992 implicitly does not allow judgments to be overruled outside the stipulated ways of challenging. This is visible from several arguments:

(i) It would not make sense to establish opportunities of Appeal and Cassation, in case a judgment could be overruled by any other court. In particular, a court of first instance overruling an appeal judgment would put the sense of a Court of Appeal ad absurdum. Another supporting argument is, that Art. 150 AE-11/1992 limits the possible applicants for an appeal. This provision would not make sense, in case a judgment could be overruled by another first instance trial, which everyone could initiate.

(ii) Even more than that, if overruling a judgment of any instance by another first instance judgment were possible, there would be no argument to keep both parties away from retrying in a perpetual manner. No case would ever be settled.

V. Arguments from Islamic Law

Arguments from Islamic Law could come into play for two different legal reasons.

For one because the Constitution of the UAE establishes Islamic law as a basic source for the national Legislation and secondly because the Emirates Civil Code (AE-5/1985) provides for the direct application of Islamic law, as long as there is no Legal provision available. AE-5/1985 is applicable to Sj-2/2007, due to the invocation of AE-5/1985 in its Preamble.

Additional to the given provisions of the UAE Law, the nature of a judgment in Islamic law underlines the already presented view. In general, in Islamic law it is agreed upon, that a judgment is binding and not able to be challenged. The only way to appeal against judges in the traditional Islamic Legal System would be to file a case at the dār al-maẓālim, which could revoke judgments of a qādi judge. It was not possible to file another case concerning the same issue at the qādi. This was so obvious, that it was never greatly discussed in Islamic legal texts and even in contemporary texts; it seems to be no need to discuss this issue. Furthermore, the obviousness of this should be the reason, why Emirati Legal texts do not go further than the above-mentioned formulations. Concerning the nature of an Islamic judgment though the following description can be found:

“If the qādi renders a judgment, it is to be executed and it is of the winning party’s right to demand the execution and to enjoy the granted right in an all-encompassing manner whereas nobody is entitled to prevent this enjoyment. Since the qādi only uncovered a standing right by judging in favor of one of the parties other than initiating a right. To sum it all up he only clarified, announced and obliged the losing party by this right, because the qādi has the competence to oblige the parties raising a claim with him.

And in consequence of this complete enjoyment of the right, that the judgment assigned to the winning party the judgment comprises the state protection of the right without the right of anybody to deny and prevent the complete enjoyment of the afore mentioned right.”

In several ways, this forbids the filing of a new case at first instance. The enjoyment of the judged right is not complete and all-encompassing if it stands under the danger of being filed again. Since the qādi has judged in the file and thus obliged the losing party to obey the judged right, the losing party does neither have a right nor an interest to file again and certainly not at a court of first instance. This also leads to a violation of Art. 2 AE-5/1985, which prevents an issue from being filed at the courts, unless there is an interest. The interest was served in the first filing and thus has become void in the second case at first instance and case had not to be filed. Since the nature of a judgment in Islamic law is that it only shows the rights, but nor creates new ones, a second judgment of first instance could in theory never take a different result

Even in older books of fiqh it can be read, that double judgment ought to be prevented from happening. As a good example for that, a reference to Ibn Qudāmas al-Muqni‛ shall be made, where he writes in the context of written judgments, that on motion a judge, who has already judged should reply to another judge wanting to judge, that he has already decided the case in order to prevent double judgments.

VI. Conclusion

Based on the given Arguments it appears obvious, that double judgment in Sharjah rent law is prohibited. On the other hand, though it seems to be a remarkable specialty of Emirati law that nowhere a clear determination of the status of res judicata is made.

Though in an exemplary way discussed concerning the Sharjah rent law, implications of the reasoning here can well be applied in ordinary civil cases as well.

In the end the discussed problem shows in a very accentuated way how new written laws and old traditional Islamic law ideas can work intertwined in order to support a juridical principle, that is known and valued throughout the world and beyond cultural boundaries.

[1] The arabic wording for „conclusive“ and „final“ is in both cases the same.

April, 2014 Elena Schildgen/Heinrich Koellisch
Meyer-Reumann & Partners, Dubai Office
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