Civil Appeal No. 496/89
Salem Salama al-Kalab et al.
v.
1. Ben Gurion University
2. Israel Lands Administration
In the Supreme Court in its Capacity as Court of Civil Appeals
[5 August 1991]
Before Justices D. Levin, S. Netanyahu, Y. Maltz
Appeal of a decision of the Beer-Sheba District Court in CA 5/88 and 19/88, issued
on 13 July 1989 by the honorable judges Banai, Rivlin, and Pilpel.
Justice Y. Maltz:
1. This is a sanctioned appeal of a ruling of the Beer-Sheba District Court (CA 5 and
19/88, judges Banai, Rivlin, and Pilpel) in its capacity as court of appeals, regarding
the partial ruling of the Beer-Sheba Magistrates Court (Civil Cases 5487/85, 4543/84,
judge Mintzer). In accordance with an order issued by the honorable President, the
parties prepared written arguments.
2. The appellants are eleven Bedouin who were residents of the central Negev until
1959. At that time, they were moved by the military government to the Nahal Sekher
region of the Negev and access to their former lands was prohibited.
During the 1970s, an area adjacent to the lands to which the appellants were moved
was leased to the Hebrew University for the establishment of an experimental farm.
Later, the farm was transferred to respondent no. 1, Ben-Gurion University (herein,
the University), who fenced it.
Toward the end of 1984, the University began fencing an additional area of 2,000
dunams, which the appellants claim belong to them. The University claimed that they
had been leased the area from the outset, and that it had subsequently been decided to
fence it due to the incursion of Bedouin herds into the lands of the experimental farm.
3. The appellants petitioned the Beer-Sheba Magistrates Court for an injunction
prohibiting the University from hindering them from holding, residing in, and
cultivating the disputed land.
The University also petitioned the magistrates court for their removal from the land.
The deliberations regarding these cases were united. After hearing the evidence
presented by the parties, the learned magistrates court judge decided to uphold the
appellants’ motion and to issue the requested injunction against the respondents.
The Beer-Sheba District Court upheld the appeal filed by the respondents, resulting in
the annulment of the ruling of the magistrates court judge and the injunction it
included. It also granted their motion to have the appellants removed from the land.
4. In their request for authorization to appeal the decision to this Court, the appellants
made a number of arguments:
a. The magistrates court judge permitted the respondents, ex parte, to submit an
addition to their summation. The respondents argued that the addition should
not have been admitted because it included an argument that had not been
introduced in the respondents’ summation or statement of defense.
The magistrates judge upheld the position of the appellants.
In its appeal request, the appellants argued that the magistrates court judge
erred in disregarding the assertion in their summation that the respondents
were not permitted to raise the additional argument due to the “lack of
consideration” in an addition to their summation alone.
b. The district court erred by intervening in the factual findings of the magistrates
court judge which were based on testimony presented before him.
In my decision of 31 March 1989, I authorized appeal and ordered that execution be
postponed pending a ruling on the appeal.
During the appeal, the appellants reiterated the arguments presented in their appeal
request. I will now discuss each of these arguments.
Addition to the Summation
5. The respondents submitted an ex parte request to the magistrates court for
permission to add a paragraph to their summation. Their request was granted, and the
appellants were given the opportunity to respond to the addition, which they did.
In his ruling, the learned magistrates judge addressed the additional argument that was
raised after the submission of the summations as follows:
“I do not accept this argument, as the learned attorneys did not request information
about this argument and refrained from examining it…” (p.2 of the ruling)
In my view, the learned magistrates court judge erred in allowing ex parte
submission of an addition to summations.
This issue was addressed by Justice Etziyoni in CA 571/70, Liquidators of Nisan
Katz, General Contractors Ltd. v. Contractors Treasury Ltd. (Decisions of the Israeli
Supreme Court 26, 60, p. 73):
“Authorization to add summations cannot be granted to one party after the other party
has already submitted its summation - as was the case here – ex parte for the party
that made the request, without the other party being informed or expressing its
agreement, whether verbally or in writing.
(On this issue, see Dr. Y. Sussman’s book Civil Legal Procedure (6th ed., 1991),
p.483.)
However, the magistrates judge was correct in not addressing the additional argument
in his ruling. This is because written summations are not the place to present new
evidence and arguments in addition to those presented during the proceedings, when
both parties have the opportunity to address arguments both orally and by examining
witnesses.
This Court has on a number of occasions warned of attorneys’ efforts to “sneak in”
evidence in this manner without authorization, and has ordered that such evidence be
disregarded (on this issue, see CA 210/84 Bank Mizrakhi United Ltd. v. Arieh
Insurance Company Ltd., Decisions of the Israeli Supreme Court, herein DISC 41,
667, p. 670; and CA 759/81 D. Beresh et al. v. J. Yardeni et al., and the counter
appeal, DISC 41, 253.
When accepting the appeal of the respondents, the learned district court judge
addressed, among other things, the argument they advanced in the addition to their
summation.
In my opinion, it was improper to make any use (even incidental use) of the argument
that was added to the summation under these circumstances.
Intervening in Factual Findings
6. The appellants argue that the district court erred when it intervened in the factual
findings determined by the magistrates judge and when - against the firm opinion of
the magistrate court judge in the matter - it showed preference for the respondents’
witnesses who testified before the magistrates court over the witnesses of the
appellants.
In contrast, the respondents argue that the district court intervened in the factual
findings of the first instance because it believed its conclusions to be mistaken.
The doctrine generated by this Court is that:
“A court of appeals will not easily intervene in the factual findings of the first court,
primarily due to the fact that it does not possess the advantage possessed by the court
of first instance in acquiring a direct impression of the testimony. However, when the
evidence indicates that the judge did not effectively utilize a witness’s evidence or
testimony, and the unreliability of the witness in question is apparent, there is no
obstacle to intervention…” (Sussman’s book, p.807, and the list of rulings cited
there).
This does not apply to conclusions based on facts. In the case of conclusions reached
by logic, the judge of the first instance does not enjoy an advantage over the appeal
instance.
7. At the outset of his ruling, the magistrate court judge notes:
“The factual rulings of this decision are based on my trust of the plaintiffs and their
witnesses and the absence of contrary testimony. It is natural that such feelings of
trust or distrust are difficult to describe and explain, but here I will make a few notes
that strengthen the abovementioned factual findings.” (p.1 of the ruling)
District court judge the Honorable Judge Banai addresses the magistrates court
judge’s words regarding his trust for the plaintiff’s witnesses:
“I am unclear as to why the judge of the first court favored the testimony of the
respondents and refused to trust the testimony of the appellants…
The judge does not substantiate why the testimony of Nature Preserve Authority
officials, which hold that when they visited the land during certain periods they saw
neither the respondents nor agricultural cultivation. The court usually regards as
reliable witnesses with no interest in the outcome of a case, such as the Nature
Preserve Authority inspectors, over the testimony of people with an interest, such as
the respondents themselves…
However, I think that even if we disregard the testimony brought by the appellants
and pay attention only to the testimony brought by the respondents, under no
circumstances is it possible to conclude that the respondents’ version, of how they
acquired the land in the area, in exchange for the land they held and from which they
were separated at Har Henegev, is accurate” (p.5 of the rulings)
I find these words of the district court judge unacceptable.
His determination that “the court usually regards as reliable witnesses with no interest
in the outcome of a case, such as the Nature Preserve Authority inspectors” is
unfounded.
While it is true that the court tends to believe “uninterested” witnesses, the judge
cannot use such an assumption to make the judgment of the court of first instance
redundant in determining his trust for one person’s testimony over another person’s
testimony.
The appeals court cannot intervene in the factual findings of the lower court due to
conventions that are points of departure alone and that can sometimes be refuted. The
testimony of an interested party is not necessarily false, just as the testimony of an
uninterested party is not necessarily true. It is the responsibility of the judge hearing
this testimony to determine whom to trust, and this is what the learned magistrates
judge did.
Courts of appeal tend not to intervene in the question of the reliability of witnesses
and on the level of determining facts based on the reliable evidence. In the words of
the honorable President M. Shamgar:
“On this question (of reliability – Y.M.), the court of appeal tends not to intervene
except in unusual cases…it is not enough to point to a series of questions, even if
there are many. Rather, facts must exist which necessarily indicate that the judge
could not have gained the impression that he did.” (CA 207/86 Magen v. Bekher,
DISC 42, 63, pp.68-69.)
After examining each of the arguments of both the respondents and the appellants in
conjunction with the material reviewed by the court of first instance, I reached the
conclusion that the learned judge of the first instance was authorized to rule as he
ruled, and that there was no grounds for intervening in his findings.
8. With regard to the argument that the intervention of the district court pertained not
to reliability but rather to the conclusions drawn from the evidence, Dr. Sussman’s
book states:
“Conclusions are reached through logic, and the first judge enjoys no advantage over
the court of appeal in this realm. It is not always easy to distinguish between a fact
and a conclusion drawn from a fact. However, the court of appeal may intervene when
it discovers a flaw in the conclusions reached by the first court and change them
completely. In the words of the Supreme Court: ‘Such conclusions are always subject
to the review of the court (of appeal) in accordance with the test of logic.’” (p.807)
This is not meant to allow the court of appeal to intervene in the manner of the
learned judge of the lower court, who concluded:
“Under no circumstances is it possible to conclude that the respondents’ story
regarding the purchase of land in the area - in exchange for the land they held at Har
Hanegev, from which they were separated – is true.” (p.5 of the ruling)
The “truth of a story” is a function of the trust assigned to one witness instead of
another witness. The conclusion that the appellants’ story was true was based on the
learned magistrates judge’s trust for their witnesses, and the lack of trust he displayed
toward the witnesses of the respondents.
Therefore, my conclusion is that it was inappropriate to intervene in the factual
findings established by the learned judge of the magistrate court.
License for Land Use
9. To the crux of the matter, the magistrates court’s ruling determined that the
appellants were granted authorization to use the land, including the land in dispute,
and that the authorization was granted in return for the land from which they were
separated by the military government.
The district court judge completely rejected this ruling with regard to the creation of a
license b’tmura for two reasons: the fact that the appellants did not present written
documents indicating their ownership of their former lands, before their transfer to
Nahal Sekher; and the fact that they presented no documents granting them rights of
any kind to the land in dispute.
It appears that the district court judge erred when he disregarded the fact that the
events under discussion in this appeal took place prior to the enactment of the Land
Law, 1969. Under section 166 (a) of the law:
“A transaction in respect of immovable property, and an undertaking to effect such a
transaction, entered into before the coming into force of this Law, and a right in
immovable property held immediately before the coming into force of this law and
not recognized by this Law, shall continue to be governed by the earlier law.”
Previous legal provisions did not stipulate a written document as a substantive
requirement. Under section 80 of the Ottoman Law of Civil Procedure, the
requirement of a written document is evidentiary alone, and is not constitutive in
character.
A series of rulings issued by this Court established that authorization for the use of
land can be granted through consent by silence, indicating that the owners accepted
the act, or through the behavior of the parties.
In CA 496/82 Rozen et al. v. Slonim et al. (DISC 39, 337, p.340), the honorable
President M. Shamgar expresses this doctrine:
“Behavior on the part of land owners which implies that they reconciled themselves to
another person’s use of their property and agreed to it in retrospect is sufficient to
create a license to land, and no explicit agreement is necessary.” (see also CA 602/84,
Ribo v. Gal (DISC 39, 692, p.697)
That is to say, the claim that the appellants did not present written documents
indicating transfer of land ownership or the granting of land rights should not be
regarded as the most important point here.
Support for the position of the appellants can be found in the testimony of appellant
no. 7, Suleiman Nazal Amital, who presented a number of receipts (tav/1, tav/2, tav/3)
reflecting that he received drought compensation in 1960 and 1964.
In an effort to counter this testimony, the respondents called upon the witness Mr.
Krispin Maurin, who worked in the Ministry of Agriculture (pp.58-60 of the minutes
if the magistrate court). According to Maurin, the area in which the appellants resided
did not receive drought compensation. The witness qualified his testimony, and, in my
opinion, in so doing negated it, by noting that “my knowledge covers from 1967
onward, as I have been working since that year.”
The magistrates court judge believed the testimony of appellant no. 7. The district
court judge tried to undermine the trust placed in appellant no. 7 by highlighting
questions which the witness had been unable to answer. As I said, I found no reason
to intervene in the magistrates judge’s assessment of this witness’s reliability. This
means that the appellants had been granted a license to use the land in dispute, and it
would be inappropriate to intervene in this conclusion.
11. In his decision, the learned district court judge ruled that even if the appellants had
received a license to use the land, it was not a license b’tmura, and it could therefore
be annulled in an instant. This ruling is not acceptable to me either.
On the ability of the Administration to annul a granted license, Justice Landoi (his
title at the time) established the following doctrine:
“Today, there is consensus that the rule of Wood v. Leadbitter – which holds that a
person using land by license can always be removed, even if he provided something
in exchange, and that the only remedy is compensation – is out of date. The 19th
century witnessed a line of precedents tempering the law on this matter…In recent
years a new doctrine based on the rules of equity has crystallized, preventing courts
from removing the licensee when the license agreement grants him the right to use the
land for a certain period or for an unlimited period of time and justice requires the
specific performance of this contract. The agreement can be explicit, but it can also be
implied by the circumstances.” (CA 87/62 Badihi v. Badihi, DISC 16, 2901, p.2905;
and President M. Shamgar’s words in CA 515/76 Levy et al. v. Weiman, DISC 31,
127, pp.129-130).
This Court has distinguished between the provision of a license l’lo tmura, which is
revocable, and a license b’tmura, which is irrevocable (CA 602/84 above, CA 996/82
above). This rule has also been limited in special circumstances. In the words of the
honorable President in CA 515/76 (above), on pp.133-134:
“Even if nothing was paid in return for authorization to construct the building or the
right to residence, this should not be taken to mean that the authorization can be
annulled on the spot in all instances. Every authorization has its own conditions for
nullification, depending on the unique circumstances of each one.”
Based on testimony he heard, the learned magistrates court judge determined that:
“The authorization granted to the plaintiffs to use the land, including the land in
dispute, was granted to them in exchange for their previous land, from which they
were separated by the military government. They were granted this authorization out
of a sense of moral obligation, but also in order to diminish their expected protest and
to prevent acts of protest on their part…”
After deciding that it was inappropriate to intervene in the factual findings determined
by the magistrates judge, it remains only to rule that the appellants were granted a
license b’tmura for the use of the land, and that it cannot be revoked without
compensation.
12. As a result, I therefore accept the appeal, annul the ruling of the district court, and
reinstate the ruling of the magistrates court. The provisions of the ruling of the
magistrates court judge are to be applied within 30 days from today.
I charge the respondents together to pay the expenses of the appellants, for a total of
NIS 8,000 as of today.
Justice D. Levin:
I agree.
Justice S. Netanyahu:
I agree.
The decision is in accordance with Justice Maltz’s ruling.
Issued today, 25 Av 5751 (5 August 1991)