The judicial system of a country is the pivotal recourse that is available to the public in order to resolve their disputes without taking law and order in one’s hands. However, the courts consume time to analyze and conclude on an issue in order to provide unerring justice to the parties that appear before it. Further, the connotation of justice differs in various lawsuits due to need for speedy remedy. The delay in the judicial system might restrict some parties from obtaining an adequate recourse in order to protect their underlying rights. Hence the maxim justice delayed is justice denied became a part of Magna Carta of 1215 and till date holds ground. Therefore, it is necessary to provide the parties with a temporary panacea in order to ensure that the subject matter of their claim is not affected by the delay in obtaining a judgment from the court. The need for the effective summary jurisdiction of the courts arises at this juncture. The necessity for an expeditious judicial interference in order to preserve the subject matter of an issue has led to the establishment of the principle behind summary proceedings give rise to summary jurisdiction to courts.
In order to avail the benefits of the summary provisions it is necessary to understand different aspects of summary proceedings before approaching a court to obtain a temporary relief in a matter.
The statutes have not provided for an explicit definition for the term ‘summary jurisdiction’. However, in the light of the settled cases, summary jurisdiction can be said to be an instrument which provides a temporary adjudication in a dispute in which the parties anticipate that their interests would be adversely affected by the prolonged period required to obtain a judgment. The UAE Civil Procedures Code, Law Number 11 of 1992 (the CPC) has provided a claimant with the right to initiate summary legal proceedings before a summary court in order to temporarily stabilize the rights of the former. These proceedings are intended to provide the claimant with a temporary order so as to preserve an existing situation. This can be elucidated with the help of the following illustration: Suppose an individual ‘X’ owes money to a bank ‘Y’ in the UAE. Further, X has failed to meet his due dates for payments and intends to flee the country without meeting his obligations with the bank Y. In this scenario, bank Y may initiate proceedings in a summary court in order to impose a travel ban on ‘X’ so that the latter is restrained from fleeing the country without repaying his debts.
Further, article 28 of the CPC has conferred a judge of the court of first instance with the authority to issue temporary adjudication in a dispute in which the court anticipates that the claimant’s interests would be insecure due to the delay in procuring a final judgment. Therefore, the legislation has intended to induce a special category of judges within the court of first instance in order to adjudicate the summary proceedings which are instituted before it.
The Nucleus – Subject Matter of Summary Proceedings
The legislation has not explicitly provided for the nature or type of issues which summary proceedings could be instituted. However, the following conditions have to be fulfilled in order for a court to assume summary jurisdiction of a dispute:
- The recourse sought by the claimant should temporary in nature as the jurisdiction of a summary court is limited to providing a temporary relief to the claimant.
- The issue of a summary judgment on the dispute should not adversely affect the rights of any of the concerned parties. In civil appeal number 307 of 2008, the Court of Cassation took the view that the judge of a summary court is conferred with a qualitative jurisdiction to execute a temporary procedure which is non-prejudice to the rights of the parties. In essence, a judge of the summary court is restricted from deciding on the legal reasoning pertaining to the rights and obligations of the parties. Ergo, he does not have the jurisdiction to decide on the subject matter of an issue which would detriment the rights of either of the parties.
- Further, the court assuming the summary jurisdiction of a dispute should be convinced that the matter requires an immediate relief. In appeal number 131 of 2009, the Cassation Court held that the summary court should be satisfied that the subject matter of the issue requires immediate attention. The court has to assess the urgency and the seriousness of the matter before assuming the jurisdiction on the same.
However, the statutes have not prescribed any modus operandi to identify if a dispute could be referred to a summary proceeding. Therefore, a court may assume summary jurisdiction if a dispute satisfies all of the conditions which have been mentioned above. However, the facts of certain cases are surfaced during the pendency of the investigation by the court. The subject matter of the dispute might fail to satisfy any of the conditions after the claim has been instituted in the summary court. This scenario primarily arises in two circumstances:-
- When the pre-requisite regarding the urgency of the subject matter ceases to exist during the investigation of the court – This ensues when there is a change in the relative urgency of the matter during the investigation of the facts of the lawsuit. In this situation, the court would adjourn the matter and not assume summary jurisdiction in the same.
- When a serious dispute arises between the parties during the pendency of the investigation by the court – This scenario occurs when a serious dispute befalls between the parties and it becomes impossible for the court to adjudicate the summary procedure before resolving the serious dispute.
Long story short, the court would adjourn the summary proceeding before the courts if the subject matter of the same has not satisfied any of the three pre-requisite conditions.
Determination of an Effective Judicial System
Considering the generality of the forgoing provisions which gives rise to summary jurisdiction, it can be concluded that summary jurisdiction can be invoked in numerous cases. However, the essence of the subject matter of a summary proceeding varies from case to case. The 2010 appeal number 222 of the Cassation Court of Dubai saw the termination of a construction contract between the employer and the contractor of a real estate project. The primary issue in this lawsuit was in regard to the urgency of the subject matter of the underlying contract. The employer intended to continue the construction of the property and therefore, it was necessary for both the parties to analyze the status or condition of the project before it could be handed over to another contractor. The court observed that the status of project should be confirmed by analyzing the quality and the quantity of work that the contractor had implemented on the project. Further, the court held that the features of the project might be affected or impaired if the issue would be referred to regular litigation due to the gross loss of time that would be incurred in the process. Subsequently, the apex court instructed the summary court to assume jurisdiction in the matter after examining if the subject matter of the lawsuit had fulfilled the pre-requisites regarding the urgency of the matter and the non-prejudice to the rights of the parties. The court further stated that the case would be transferred to a court of first instance if either of the conditions had not been satisfied.
Further, in the infamous appeal number 274 of 1993, the Court Of Cassation adjudicated a claim regarding the safety of the custody of a fund under its trustee. The claim was brought about in order to safeguard the fund from the damages or the jeopardy that could if it continued to exist under the custody of its trustee. In this case, the apex court said that the judge of a summary court should not exercise an action which would prejudice the rights of either of the parties. However, the concerned judge should ensure that a precautionary step is executed in order to secure the disputed fund from being utilized or disposed by the trustee. Article 997 of Federal Law Number 5 of 1985 regarding civil transactions has provided that custodianship is a contract whereby two parties entrust a disputed property with a third party in order to safeguard it during the period of the dispute. Subsequently, the third party is required to return the property to the party whose right has been established in the future. Further, article 29 of the CPC confers a court with the authority to assume summary jurisdiction in a dispute regarding the ownership of a movable property or fund. However, the party to the dispute should have a substantial reason to believe that the holder of the property would jeopardize the same before the settlement of the dispute. The apex court while exercising its appellate jurisdiction has observed that summary proceeding should be initiated only when a substantial reason exists for the claimant to believe that the funds are unsafe in the possession of its holder. The apex court further held that a summary court should scrutinize the seriousness and urgency of the issue before disposing a matter regarding the custodianship of a movable property or a fund. Simultaneously, the court should also corroborate that the rights of either of the parties have not been affected due to the precautionary step which has been instituted under the ambit of summary proceedings.
Further, courts are conferred with the jurisdiction to initiate summary proceeding against persons who plunders the property of another. The court may assume summary jurisdiction and evict the former as long as the documents and title of the property is in the name of the other party. Summary jurisdiction is not instrument intended to exclusively safeguard the interests of a claimant with regard to his assets or properties. The court may invoke summary jurisdiction and summon a witness in a dispute who is anticipated to travel to another country or pass away due to his critical medical condition.
The need for summary proceedings is augmenting with the unprecedented expansion of the economy in the Middle East. Further, the increase in daily commercial transactions between individuals and corporations has supplemented in the development of imperative laws in the Arab nation.