The
appellants upheld that they filed their counterclaim to assert their
entitlements as reflected in the checks signed by the respondent's
representative, pertaining to their newly assumed duties outlined in a
subsequent agreement, distinct from the initial agreement. They provided
supporting documents in this regard. The contested ruling failed to scrutinise
this collective evidence, on the basis of reversing ruling, which emphasised the
significance and necessity of examining such evidence to discern the intentions
of the opposing parties and establish their legal relationships and obligations.
The ruling exclusively leaned on technical expertise to support its decision,
discrediting the check as a valid payment instrument and evidentiary proof of
indebtedness. Consequently, the contested ruling is considered to have erred in
the application of the law, exhibiting flaws in inference, deficiencies in
reasoning, and a breach of the right of defence.
Whereas
in the facts - as apparent pursuant to the perusal of the contested ruling and
the remaining documents - the first respondent - [Name] Commercial Company -
filed Case No. 193 of 2015 C-P-Sh, against the appellants, seeking a ruling to
appoint an engineering expert to elucidate what the plaintiff paid to the
defendants and what the latter remitted to the project contractors, with
quantifying the damages incurred by the plaintiff due to project delays caused
by the defendants' alleged failure to adequately monitor and implement their
assigned tasks. The plaintiff sought to be granted the outcomes of the expertise
report, inclusive of interest and expenses. The basis of the plaintiff's claim
was that the first defendant, [Name], a company specialising in management
consultations, was engaged by the plaintiff to oversee and supervise the
execution of a water sports park project on the island of [Name]. In return,
[Name] was to receive a monthly lump sum of ten thousand dollars, payable to the
second defendant for administrative and technical consultations. [Name] was
responsible for project oversight, contractor coordination, and disbursement of
funds, including payments to contractors from funds transferred by the
plaintiff. Allegedly, the plaintiff transferred the required funds for project
implementation along with the defendants' dues. However, it was later discovered
that the contractors' payments were not made from these funds, resulting in
project delays. Consequently, the plaintiff filed the lawsuit. In response, the
defendants appeared and submitted a counterclaim against the plaintiff. In this
counterclaim, the second defendant, [Name], was introduced as a litigant. The
defendants sought a provisional seizure on their funds amounting to 3,700,000
dirhams and imposed on the two defendants in the counterclaim to pay 12,375,000
dirhams. This amount represented the value of the completed work in the project.
The counterclaim asserted that an agreement had been reached between the
defendants and the plaintiff in the original claim to supervise and complete the
aforementioned water park, in exchange for a lump sum of 16,500,000 dirhams. The
opposing party introduced to the case personally committed to paying the
specified amount upon execution, and to facilitate this commitment, the
defendant issued checks totalling 3,700,000 dirhams. Unfortunately, these checks
were dishonoured due to insufficient funds, leading to the criminal conviction
of the drawer for this offence. In the session dated 28/10/2015, the court ruled
to reject the seizure request, prompting the two plaintiffs in the counterclaim
to file a grievance against this decision. Subsequently, on 30/12/2015, the
court appointed an accounting expert who, in their report, substantiated that
the defendants in the original claim had failed to disburse the dues owed to the
project contractors from the funds transferred by the plaintiff. The expert's
findings indicated that the defendants were indebted to the plaintiff in the
amount of 1,705,157 dirhams. In the session held on 22/12/2017, the court in the
original case ruled that the defendants were jointly obligated to pay the
plaintiff the sum of 1,705,157 dirhams. The court further directed the
defendants to return the original checks. Additionally, the court rejected the
counterclaim and the grievance, thereby confirming the grieved-against ruling.
The defendants filed Appeal No. 449 of 2019. The Court of Appeal reassigned the
expert through a tripartite committee. This committee submitted a report,
concluding that the appellants' capacity as the main contractors who had
completed the works for which the checks in their possession had been issued is
not substantiated. Furthermore, the committee found no evidence supporting the
assertion that the sums of money and checks received by the appellants were
intended for paying the contractors' dues. The Court of Appeal also conducted an
interrogation involving the second appellant and the representative of the first
respondent. In the session dated 10/4/2019, the court ruled to reject the
appeal, relying on the expert report as the basis for its decision.
Subsequently, the defendants (the two plaintiffs in the original claim) filed an
appeal in cassation, designated as No. 308 of 2019, against this ruling before
the Supreme Court. On 29/10/2019, the Supreme Court ruled to reverse the
decision and remand the case for further consideration. This ruling was grounded
in the identified deficiencies in reasoning during the examination of the
appellants' defence concerning the accuracy of the task assigned to them by the
respondent and their role in completing the project. The Supreme Court
highlighted the importance of considering subsequent agreements signed by the
parties, along with the documents and decisions issued by the employer's
representative regarding the appellants' entitlements. Additionally, the Supreme
Court criticised the undue reliance on technical expertise reports to resolve
these legal issues. Upon remand, the court of the next instance reheard the
appeal and re-assigned the committee previously tasked with examining the
appellants' objections. This committee submitted a supplementary report,
reaffirming its initial opinion. Consequently, in the session held on
29/12/2020, the court ruled to reject the appeal and confirm the previously
contested ruling. Subsequently, the two plaintiffs in the counterclaim
challenged this ruling for the second time in the present cassation. The case
file was presented to this court, convened in a Council Chamber, and deemed
valid for consideration. A pleading session was scheduled, and the opposing
parties were duly notified.
The
appellants object to the contested ruling, asserting errors in the application
of the law, a breach of the right of defence, flaws in inference, and
deficiencies in reasoning. Their objection is grounded in the court's failure to
rectify the deficiencies and violations identified in the initial ruling, as
emphasised by the reversing ruling. Specifically, the court neglected to
thoroughly examine the appellants' defence concerning the nature of the
relationship that connected them to the first respondent and the various stages
it traversed from its initiation to the date of termination. The two appellants
consistently upheld throughout all stages of the litigation and before the
involved experts that their interaction with the respondent and the agreements
reached underwent two distinct stages: The initial stage was governed by the
agreement executed on 23/8/2013, which assigned the second appellant the
responsibility of technical and administrative supervision over the project's
progress. This was in exchange for a lump sum payment amounting to ten thousand
dollars per month. The subsequent stage of their dealings was regulated by the
agreement dated 21/8/2014, as well as subsequent memorandums of understanding
with the representative of the project owner and subcontracting companies.
Additionally, declarations issued by the project consultant or the respondent's
representative were considered pivotal in outlining the stages of implementation
and corresponding dues. Under the terms of the last agreement, the appellants
were bestowed with the responsibility of overseeing the entire completion of the
project and ensuring its delivery in a finished state to the owner. This
included the authorisation to review and reconsider contracts previously
executed between the respondent and the contractors. The appellants were
empowered to terminate these contracts through settlement or re-subcontracting
with parties they deemed more suitable and capable of fulfilling the project
requirements. The checks upon which the appellants rely in their lawsuit
constitute remuneration for the tasks executed within the scope of this
agreement, spanning until the termination of the contract in January 2015.
Despite the approved expert reports concluding that the respondent failed to
furnish evidence substantiating the reason for signing these checks or
challenging the entitlement of the appellants, their value was still deducted
during the calculation process. This discrepancy arose because the assigned
experts did not comprehend the true nature of the last contract and the
appellants' role within it. Instead, they adhered to their prior stance with the
reversing ruling, focusing on the implementation of the initial supervision
contract without recognising the influence of subsequent agreements and
understandings. Given this scenario, whereas the contested ruling relied on the
approved expert reports to determine essential factual and legal matters and
endorsed these reports without delving into the technical intricacies of the
case, the issuing court has effectively abdicated its responsibility to provide
a legal opinion on matters within its jurisdiction. The court's decision led to
a result that contradicts the correct application of the law, undermining the
validity of the ruling. As outlined in the grounds for cassation, these flaws
necessitate the reversal of the contested ruling.