Complaint against court for unfair judgment

Nima Wangdi

After the courts refused to reopen the case even with new evidences gathered, a landowner from Taba, Tashi, filed a complaint last week to the Anti-Corruption Commission requesting an investigation into the case.

The letter stated that the 15-decimal land under the joint ownership of two brothers, Tashi and Chencho was illegally changed to single ownership and then was given to the defendant in 2011.

Representing Tashi, his brother-in-law Ugyen said that the case went until the Supreme Court, which upheld the judgments of the lower courts.

He said the High Court ordered the then Thimphu City Corporation (now Thimphu Thromde) to verify the legitimacy of the land ownership as they questioned the change in ownership of the land.

“Thromde wrote back to the court saying that the land was still under the joint ownership and the Thromde officials had transferred the ownership by mistake,” Ugyen said that Thromde had also apologised to the court for the mistake and the land transaction be stopped. The documents he has also stated the same.

The land was initially mortgaged by Tashi’s cousin who borrowed Nu 2,400,000 from the defendant. Later, the cousin fled the country and the defendant took the land.

“We didn’t have any evidence to prove then.  But now we have the money receipts showing that the person who fled paid all the money back before fleeing,” Ugyen said that the land should remain with the landowner and it should not be given to the defendant.

Ugyen gathered all the evidence and registered the case with the Thimphu district court in April this year but was dismissed in July after a few hearings.

The judgment that the district court passed on July 5 stated that the courts have already heard the case before and judgments have been passed. “The litigant registered the same old case to the court and had to be dismissed,” the judgment stated.

Ugyen said that the court was aware of several irregularities in the evidence that the litigant was basing on during the process of hearings. The agreement did not even reflect the amount of money borrowed. “It also did not contain signatures of all the signatories but the Court still accepted.”

The land was mortgaged without Chencho’s consent. Tashi has also signed the agreement as guarantor.

Can court cases be reopened? 

A criminal case can be reopened even after the court has passed the judgment, according to law professionals. They said that section 37 of the Civil and Criminal Procedure Code (CCPC) Amended Act of Bhutan 2011 provides the provision.

The section states that the prosecution may move the Courts for new trials based on newly discovered evidence or on other grounds.

However, civil cases cannot be reopened if the subject matter of the case between the same parties is the same as that of the previous suit on which there is a valid and final judgment. “This is based on the legal doctrine Res-judicata and is well prescribed in section 115 of the CCPC of Bhutan 2001.”

The section states that the person shall not be entitled to file a subsequent suit if the cause of action or claims involved in it is the same as the prior suit on which there was a valid and final judgment on that cause of action based on the merits.

Another law expert said that the case could be reopened if somebody makes the issue with the concrete prima facie evidence that the court has erroneously decided the case. “In fact, it is not within the interest of the court to reopen the case that was already decided but the strong external factors will make things happen.”