‘You don’t go on bended-knee to petition the official culture for your rights. You have to take them.’ -Terrance McKenna
Countries are not sustained, and their peoples are not stable where a superior judicial system is not in place. Achieving a system of justice is not possible unless there is a good judicial system that protects the weak and beats the hand of the oppressor. A political system will remain unstable without the existence of justice; as such the right to litigation should be a guaranteed right for all. One of the most important elements and bases for achieving justice is through doing justice to justice itself. This simply means maintaining a fast speed in which cases are brought before the courts until the claimant’s rights are assured. Otherwise, delay in rights and litigating disputes will result in justice losing a fundamental part of its meaning and true essence.
There is a saying which says that slow justice is an injustice, and here the legislator did its job by providing a means to meet a fixed debt which is in writing through a writ of performance and this is considered the exception to the general rule. This is because the general rule is to resort to the competent judge and proceed with the relevant procedures of the appropriate court. However, the legislator would take a different route in this matter making the process easier and smoother for the judge and the concerned parties in achieving said justice. Bearing in mind that the law has placed specific conditions that the dispute must meet for the litigants to be able to use this exceptional route. The judge of the court is afforded the discretion to decide when to award a writ of performance. How this takes place is outlined below.
One Step at a Time
First: A writ of performance is an exception to the general rule of raising a claim:
As noted earlier, the write of performance orders are an exception to the general rule as the original rule requires a litigant to resort to the substantive judge of the matter. As such they are referred to as expedited or urgent cases for the speed in which they are resolved as opposed to the ordinary judicial procedures. The law has placed specific conditions that allow a litigant to use the route of a writ of performance. Of which, the creditor must have their right evidenced in writing, showing a fixed monetary amount, and the amount is due for payment (Article 143 of the Civil Procedure Code). Further, orders for writs of performance do not encompass and accept fragmentation. It is not the role of a judge to allow some part of a writ of performance claim and reject another. If it is apparent that some claims are not subject to the terms and conditions of issuing a write of performance, then the court must refuse to issue it and refer the matter to the competent court.
Second, the order of performance is subject to a general order:
A writ of performance is subject to the general order, meaning that upon meeting the conditions for issuing the writ, the litigants may not resort to a court other than that for such urgent cases. For example, upon raising it before a substantive court, the court may decide on its behalf not to accept the lawsuit. The claim will then be raised for review under the discretion of a competent judge of the court of first instance. Also, the rule of value to jurisdiction found in the Code of Civil Procedure does not apply to writs of performance. Litigants can raise a claim for a performance order regardless of the amount requested.
Third: The creditor must first charge the debtor with the obligation to fulfill the debt:
The creditor must first charge the debtor to meet his obligation within a minimum of five days (Article 144 of the Code of Civil Procedure). The debtor is first assigned to fulfill the debt using a notification of payment. If the debtor fails to pay after a minimum of five days, then the creditor may claim for a writ of performance from the judge of a court that lies within the district of the debtor. The claim will be issued through a petition submitted by the creditor which the bond of debt shall be attached to, and showing proof of the obligation to pay will. The creditor shall not ask for more than the amount mentioned in the petition which should not be more than the amount assigned to pay in obligation to fulfill the debt; both values must correlate.
Fourth: The writ of performance must be issued within three days at most from the date of submission of the petition
The writ of performance shall be published within three days of the time of filing of the petition. After all, this is the purpose of this legislation; to have the indebted amount returned in a quick and efficient timing. To return the obligated amount back to the creditor within three days of the submission of the claim is a testament to serving justice to justice.
Fifth: Referring the claim to a competent court where the judge refuses to issue the writ of performance
Under Article 145 of the Code of Civil Procedure, if a judge refrains from issuing a writ of performance for any reason, he shall be in charge of determining a hearing where the case will be heard before a competent court. The court shall then order the debtor to appear before it at the appointed session. Basing this on the fact that the measures before the substantive courts follow the usual procedures and none of the litigants may challenge the decision of the assignment.
Sixth: The creditor must announce the performance order to the debtor:
Article 146 of the Code of Civil Procedure stipulates that should the writ of performance be issued then the creditor shall announce the contents of the writ of performance to the debtor's person, in the debtors original country, or in his work place. In doing so, they must provide the petition and the order issued against the debtor to perform the debt. If this is not announced within six months of the issuance of the order, the petition and the writ of performance issued will be considered as if they were not. Thus, they would be void of legal effect.
Seventh: Complaints and Appeals on a writ of performance:
The debtor may raise a complaint as to the writ of performance within fifteen days from the date of its declaration. Upon doing so, the complaint must be causative for it to be heard before the competent court where the usual procedure shall take place for bringing the case before it. A creditor may also appeal in agreement with the rules and procedures of appealing judgments. Further, the start date of an appeal will begin from the date the complaint period has elapsed. The right to complain is waived if it is challenged directly by an appeal (Article 147 of the Civil Remuneration Act).
Eighth: Method of executing the writ of performance:
The performance order shall be subject to the usual procedures and the execution of the judgment provisions. With this follows the creditor's entitlement to raise a claim for execution after the period of complaint and appeal have elapsed regardless of whether it is an appeal to the Court of Appeal.
Finally, we must ensure to discuss the rule included in the judgment of the Dubai Court of Cassation on 26 February 2012 in Civil Appeal No. 253 of 2011 issued in 2012. The decision highlights the right to establishing a claim for a performance order, summarizing all matters relating to the performance order and the conditions required to allow the issuance of one. The following is stated:
As per Articles 42, 143, and 145 of the Civil Code of Civil Procedure, a plaintiff who claims a right before his adversary can appeal to the relevant court through a statement of claim. An exception to this norm would be resorting to the issuance of a writ of performance. This can be done if the creditor is claiming for a debt that is proven in writing through signature and provided that it is consistent with several other conditions. Namely that the debt's performance is not dependent on the fulfillment of any conditions and that the amount indebted is fixed. Only if all of these conditions are fulfilled can a claimant resort to a writ of performance. It is not lawful to resort to a writ of performance claim even if these circumstances are met for only a partial amount of the debt of the claimed amount. It is a method that can be resorted to only in an exception, and its boundaries should not be broadened to allow partiality. Similarly to how a judge cannot issue an order that only allows part of a claim and disallows another part only to have it referred to a competent court for adjudication. Insofar as the above-mentioned, Article 145 provides that if the judge considers that the claimant has not responded to all his requests, then it is necessary for the judge to reject the issuance of a writ of performance. This does not alter the existence of a link between the written fixed debt and the claim of another right attached to it, consequent to it, or connected to unless it is set in writing. Further, a performance order for a fixed amount can be pursued by a creditor without resorting to usual procedures for raising a claim. The legislature has also necessitated resorting to this exceptional route if the creditor is claiming for something transferred that is of a fixed type and amount, or he is indebted as per a commercial paper if his claim is addressed to the maker, drawer, and the guarantor.
Swift justice is what any legal system requires to ensure its claimants are met with the appropriate protection. The issuance of a writ of performance is one example of how a claim may be expedited and resolved within a few days. STA's team of criminal lawyers in UAE are well equipped and versed to handle matters relating to debts and collection.