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Estimating the adequacy of the reasons of termination or cancellation of the
contract binding both parties or the inadequacy thereof, considering the
contractor negligent or not negligent or denial of negligence by the person
requesting cancellation or proof of the same, and determining the negligent
party in the performance of its obligations or rejection of negligence.
Objective. Based on valid reasons.
Whereas,
in the facts - as apparent in the contested judgment and the documents - the
Appellant in the appeal in cassation no. 178 of 2020 Commercial, filed lawsuit
no. 300 of 2017 Civil Plenary Fujairah against the Respondents, requesting the
judgment, as per his final requests, to cancel the lease contract dated
22/4/2015 and evacuate the Defendants from the land covered by the dispute and
hand it over to him, compelling them jointly to pay the amount of AED 744,750 as
the value of rent fees due from 22/4/2015 to 21/4/2018 and to compel them to pay
the amount of AED 730,733 as the value of the fee due to the Municipality of
Fujairah from 22/4/2013 to 13/12/2018. This is based on the fact that the
Respondents concluded with his father the said lease contract for the plot of
land at Al-Hail Industrial City in Fujairah for the purpose of investment for a
period of 12 years, at a rent fee of AED 175,000 for the first and second year,
to be increased to AED 225,000 for the third year and from the fourth year, the
rent shall be exceeded by 10% of the rental value due for every year. The
Defendants shall pay the fees of usufruct of the land due to Fujairah
Municipality throughout the validity period of the lease contract as the land is
owned by Fujairah Municipality and the father uses the same under a usufruct
contract between him and the Municipality. As the Defendant Lessees violated
their obligation to pay the due fee for the claim period without justification,
he filed his lawsuit with the above-mentioned requests. The Respondents filed a
counterclaim under No. 357 of 2017 Civil Plenary Fujairah against the
Respondent, requesting the ruling, as per their final requests, to compel the
Appellant to pay the amount of AED two million representing the amount of rent
of the electrical generator and rent of the land-occupying equipment and
compensation for the damages incurred due to not using the rented land. The
Court of First Instance appointed an expert in the lawsuit and ruled in the
first original lawsuit to compel the Defendants to pay to the Plaintiff, in his
capacity, an amount of AED 275,000 and in the counterclaim to compel the
Defendant to pay to the Plaintiffs an amount of AED 957,000 with effect from
01/05/2018 until the date of final judgment, enabling the Plaintiffs to use the
premises and extract the building completion certificate. Both parties appealed
the judgment. On 07/01/2020, the Court of Appeal ruled, in the appeal no. 351 of
2018 Civil Fujairah brought by the Appellant, to cancel the ruling of the
appealed judgment in the original lawsuit as per the rejection of the rescind
request, evaluation and re-ruling of the cancellation of the lease contract
covered by the lawsuit dated 22/4/2013 and compel the Respondents to evacuate
the leased land and hand it over to the Appellant empty and to confirm it
otherwise; and to cancel the ruling of the appealed judgment in the counterclaim
enabling the Respondents to use the leased premises and to reject it and amend
the ruled amount to AED 457,000, and in the appeal no. 352 of 2018 Civil
Fujairah brought by the Respondents, to reject it. Both parties appealed this
judgment through cassation hereby and whereas the appeal in cassation was
submitted to this Court in a Council Chamber, the latter deemed that it is
worthy of consideration and specified a hearing for the same.
Whereas
the Appellants in cassation object to the contested judgment for miscarriage of
justice and deficiency in reasoning. As the contested judgment approved the
report of the expert appointed before the Court of First Instance concluding
that the Respondent did not enable the Appellants to use the leased land because
of the equipment occupying such land and for not paying the Municipality fees
due since 2007 to Fujairah Municipality. Whereas the judgment based its ruling
of cancellation and evacuation on the basis that each of the parties violated
their obligation, the Respondent, by not enabling them to use the land and the
Appellants by not paying the due rent while they are obliged to pay it due to
the violation by the Respondent to its obligation, enabling them to use the
leased land. They also owe the Respondent with the ruled amount in their
counterclaims, which exceeds the due rent and to make set-off between the
entitlements of both parties so that they are not liable, which renders the
judgment invalid and shall be reversed.
Whereas
the reasons of this appeal in cassation are related to the defect of the report
of the appointed expert before the Court of First Instance that the contested
judgment relied upon for not using the leased land by the Respondents. The
Appellant objects as well to the ruled amount as a fee for the items stored in
the land. Whereas the contested judgment was reversed in the previous appeal in
cassation then the appeal thereof shall entail reversal for being related to
both appeals.