Civil Case (Haifa) 12139-12-23 Wissam Na’amneh v. Mu’taz Na’amneh - part 8

When asked again how he signed without understanding, he replied, "The way they signed, I signed.  In order to transfer the winnings in the land registry, they have to make a sale agreement" (p.  34, s.  20).

59. Ali claimed that he did not know that this was the same plot that he had already relinquished in favor of Wissam (plaintiff 1) (p. 34, paras.  10-12), and according to him, "Wissam asked, asked me what you did, I told him what I did? He said to me, 'How do you give up land that you have already given up to me?' I told him that I don't know, I know that I gave up to my cousins Mustafa, I gave up something to you, and I gave up something else to them" (pp.  36, 9-11).

When asked why he did not make the necessary clarifications according to the signing of the agreement, Ali reverted to an earlier version : "The land is not mine.  It's just where my father is.".  Ali testified when asked why he didn't get help from someone to translate what was written for him, and he replied, "I don't want to repeat it again, I wanted to give up to my cousins, that's what they asked me to do, I gave up because the land is not mine.  There is no need for me to read, because it is something that is not mine, and therefore I did not read, I did not consult" (p.  37, 20-23).

60. In the hearing that took place in the interim proceeding, in which the plaintiffs made a representation as if Ali (who did not submit a response to the interim relief) happened to be in the audience and should be allowed to give his version, Ali claimed that he had signed the sale agreement after attorney Na'amneh told him , "You have to sign a title deed for your cousins... He said it was my cousins' plot and that I had to sign for them.  I didn't know it wasn't the same plot." (p.  5 of the minutes of the hearing of December 21, 2023).
61. Our eyes see that Ali's version oscillates between signing with indifference to the content of the document, since the land is not his, but his father's, to signing with the idea that he is giving up to Mustafa as he did to the plaintiffs, and signing for the purpose of transferring the rights at the registry office.
62. Beyond the essential gaps between the various versions, which are sufficient to bring about the rejection of all of them, Ali's versions are illogical, one by one. The version that he has no rights in part and that the rights belong to his father is incorrect on the factual level, and is irrelevant on the practical level.  The sale agreement between him and Mu'taz (the second transaction) was drawn up after the rights of Ali's late father were transferred to his name and the name of his three brothers, as we have shown above.  Even if the rights were not registered in Ali's name, he knew that he was entitled to receive a quarter of the rights registered in the name of his late father, and this knowledge was in fact based on a gift agreement between him and the plaintiffs, in which it was explicitly stated that Ali was entitled to be registered as the owner of 1/12 of the plots he had inherited from his late father in accordance with an inheritance order issued by the Sharia Court in Acre.
63. The version according to which he signed in his opinion that he was waiving his rights to Mustafa as he had already waived to the plaintiffs, and without knowing that these rights were in question, is an innocent version that has nothing to rely on, since beyond the fact that it was not clarified what Mustafa's connection to the whole matter was and what was the basis for the waiver to Mustafa, Ali did not at any stage have more than 1/12 of the plot, which he sold without consideration to the plaintiffs and no evidence of the rights he had in other plots was presented. So it's not clear what right he thought he was giving up.  In any event, Mu'taz's name was clearly written in the sale agreement and in the irrevocable power of attorney, and there is no basis for the suspicion that by signing the documents he granted rights to Mustafa specifically.
64. The version according to which Ali thought that he had signed for the purpose of transferring the rights in the Land Registry was not clarified at all. It was not clarified what rights are in question and to whom they must be transferred.  His own rights, which he inherited from his father, had already passed into his name in the third month.2022 and before the signing of the gift agreement, and if the reference is to the rights that were the basis of the gift agreement, then there is no logic in Ali's reasoning, when his two brothers are parties to the sale agreement.  These are not related to the gift agreement, and there is no reason for their names and signatures to appear in the agreement or document.  On the contrary, Ali did not deny in his testimony that his brother had signed the agreement, and even claimed that "as they signed, I signed" (p.  34, s.  20).
65. If his two brothers signed before Eli signed the agreement, as claimed by Attorney Na'amneh, then no explanation was given by Eli that his brother signed a document, which, according to him, regulates the rights he gave (without his brother) as a gift. And if all the parties signed on the same date, the words are all the more correct.
66. As for consideration - in order to show that the contrary transaction is a valid transaction on the contractual level, it is not necessary to prove an element of consideration. The element of consideration is relevant mainly in the context of the conflicting transactions, but Ali's version on this matter is presented here, also in order to show the difficulties in the version.
67. As stated, according to what is written in the agreement, the very signing of the agreement constitutes confirmation of receipt of the consideration stated therein. During Ali's interrogation, two checks drawn on Mu'taz's bank account were presented at Ali's orders, in the amount of ILS 50,000 each, the first due on December 30, 2022, and the second on January 30, 2023 (N/1).  Ali claimed in his interrogation that he had not received money from Mu'taz, and when asked how this was possible, he replied, "Not mine, I did not ask for money" (pp.  38, paras.  26-28).  According to him, his brothers also did not receive money because they gave up the land and did not sell it (p.  38, s.  30).  Ali denied receiving the checks and receiving financial consideration, claiming, "Because I was told to give up land, and I don't have land.  I was not told that there was such a thing" (p.  35, s.  11).
68. Ali's answers mix things up again. If he doesn't have land, then how can he give it up, and if the land isn't his, why should he sign? In any event, and despite Mu'tazz's claim (see below) that his account at the bank was limited, it was not hidden what was written in the sale agreement regarding the receipt of consideration, no logical version was given regarding the checks that were submitted, and Ali's brother's version regarding the consideration was not heard (and this is also relevant in the context of the competition between the rights).
69. The laws of evidence follow the substantive law. This means that a party must prove a claim that advances his case in law (see CA 1845/90 Roni Sinai v.  Migdal Insurance Company Ltd., IsrSC 47(5) 661, 681 (1993); CA 1842/90 Bar-Lev v.  Pnina (Levinson) Rapoport, IsrSC 48(5) 211, 234 (1994); CA 4612/95 Matityahu v.  Shatil, IsrSC 51(4) 769, 780 (1997).  The plaintiffs did not succeed in contradicting the presumption of signature, did not prove any of Ali's versions regarding the signing of the sale agreement, nor did they contradict the documents and evidence regarding the payment of consideration in the agreement between Ali and Mu'taz.
70. The claim of fraud raised by the plaintiffs against Sa'id and Adv. Naamneh was also not proven, when the burden in this context, in view of the criminal nature of the alleged acts, is high (see, in this regard, LCA 8716/17 Anonymous v. Health Fund, paragraph 6 [Nevo] (January 18, 2018); CA 45/15 Halima Nabulsi v.  Nabil Nabulsi, paragraph 13 [Nevo] (May 15, 2017); CA 3546/10 Mishali v.  Klein, para.  14 [Nevo] (April 18, 2012); CA 6465/93 Cohen v.  Langerman et al .  [Nevo] (July 20, 1995)).

The plaintiff repeatedly claimed during his testimony that the defendants, or any of them, had deceived Ali and claimed that Ali had not received compensation for the agreement, but when asked what the source of his knowledge was, he replied that this was Ali's version.  The plaintiffs' entire argument is based on Ali's version, except that Ali is not devoid of interests, to put it mildly.  Ali is the key man who entered into two conflicting deals! It was Ali's signature that led to the whole conflict; His 'motivation' to deny the sale agreement is clear.

71. I therefore reject Ali's version, from beginning to end, and also attribute to the plaintiffs' duty the failure to summon Ali's and Mustafa's brothers, who allegedly accompanied Adv. Na'amana, at the time of Ali's signing of the agreement.
72. Mu'taz's version - the above words and questions are even more beautiful in relation to Mu'taz. Mu'taz's testimony in court was inconsistent, which includeda mixture of contradictory arguments and answers.  In order to get an impression of Mu'taz's testimony and the difficulty in extracting answers from him, the interrogation protocol must be read from beginning to end.  I will bring below the main points;
73. During the hearing of the evidence, it was positively proven that Sa'id received consideration from Sa'id, in the form of a bank transfer in the amount of ILS 150,000 and a check on his order, drawn on Sa'id's account, in the amount of ILS 70,000 (a total of ILS 220,000, the consideration agreed upon in the third transaction - N/2). Mu'taz, who had already sold all his rights in the plot, apparently decided to help the plaintiffs, second-degree cousins, perhaps thinking that he had nothing to lose.
74. In his testimony in court, Mu'taz was determined to claim that he had sold only his land to Sa'id, referring to the rights he had inherited, and in his words, "I only sold my land, in my name, and I did not sell any other land" (p. 53, s.  24).  "What I have sold in my name" (p.  54, s.  12).  "I did sign, I signed my land" (ibid., para.  18).  After quite a few questions addressed to Mu'taz and various evasive answers (and this is reflected in a large number of lines in the minutes), he was forced to confirm that he had signed the agreement dated February 15, 2023 (the third transaction), in which he sold 3/12 of the plot to Mu'taz.  Even with regard to his signature on an irrevocable power of attorney relating to the fourth transaction, he was forced to confess after explicitly denying the signature at the beginning of his testimony.  Mu'taz's way of evading answers to questions relating to the documents is reflected in his answer: "I will not know whether this is my signature or not" (p.  54, question 7).
75. Mu'taz was asked several times about the extent of thearea he had sold to Said, and gave various answers on the matter. On one occasion he stated that he had sold four dunams, which were owned by him and his brother (p.  55, s.  1), and after being confronted with the fact that his brother's share had been sold in a receivership proceeding and confirmed this, he admitted that he had sold 4 dunams to Sa'id (p.  55, s.  22).  He later claimed that he sold the four dunams together with his cousins (ibid., para.  27).  When the court insisted on receiving a clear answer regarding the scope of the area it sold to Mu'taz, it claimed, "There is a dunam that I did not sign, and I do not know about it, and I do not know anything about it..." (p.  55, s.  36) And in another place."Suddenly I realized that he had signed me for Wissam Naamneh's dunam without me knowing..." (p.  56, s.  10).

It should be emphasized that Mu'taz originally owned 1/12 of the plot, which he inherited, and they have been registered in his name since 2015.  Only after he entered into the second transaction and purchased from Eli and his brother 3/12 (additional) parts of the plot, did Mu'taz become the owner of 4/12 of the plots, equal to 4,236 (which is a little more than four dunams).  The significance of Mu'taz's admission that he sold (alone) 4 dunams to Sa'id is that he also sold the parts he bought from me.

76. Mu'taz who understood the significance of the sale of 4 dunams to Sa'id, especially when he did not deny that he signed the two agreements, in the third and fourth transactions, continued to claim, contrary to all logic, that "I sold, 100 percent, but what was not mine, I did not sell" (p. 56, s.  23), that he did not know how much land he had and that Adv. Na'amneh "did everything", all without any evidentiary basis.

When asked about the agreement that was the subject of the second deal, in which Ali and his brother sold him 3/12 of the plot, Mu'taz replied, "No, no one...  I didn't come and I didn't sign, no, no one signed, I don't know" (p.  57, s.  9).  Later in the interrogation, he even claimed that he did not buy from me, nor did he buy from his two brothers, nor did he pay money.  He also claimed that his signature on the agreement (the second transaction) was forged and that none of them: Ali, Hussein and Marai received money from him (pp.  57, paras.  23 and 27).  At the end of his testimony, he claimed to Attorney Naamneh, "You forged everything, I want to tell you, he forged everything" (p.  63, paras.  11-12).

77. Regarding the checks drawn from his bank account in favor of Ali, he testified, "I don't deal with the checks either" (p. 57).  He claimed that Attorney Na'amneh had asked him for the checkbook in order to take pictures of some things, and that even though Mu'taz had told him that his account was restricted, Attorney Na'amneh told him not to worry and that he would arrange it.  In the words of Mu'ataz, Attorney Na'amneh said: "No problem, no problem, give me the notebook, I'll take a picture of them.  He said to me - I want to take pictures, I want to...  I don't know what he wanted to do.  I didn't know what he wanted to do.  Check in on the 9th, I was, I came in limited, and there are no checks, nothing." (p.  58, paras.  23-25).  According to him, Attorney Naamneh took the checks and took pictures of them, and when asked how many checks he took, he replied, "I don't know, I don't remember.  That's why, but I didn't see it, I thought he was a lawyer, I believed him.  I trained him, I trusted him" (pp.  58, 36-37).  When asked again why, even though his account was limited (according to him), he brought the checkbook to Attorney Naamneh, he replied, "I thought he wanted to take an ID number or an account number." Later, he was asked the same question and then answered, "I thought I was just bringing it to him, because he wanted to put it in his bag or just do something" (p.  59, 24-25).

Mu'taz was asked if the handwriting on the checks was his handwriting and he immediately answered "No", then he replied "It's my handwriting, his handwriting, it's the same" and later "You wrote the checks then, or I wrote them, I don't remember" (p.  59) !

78. These parts of Mu'taz's testimony clearly reflect his inconsistency and credibility. There is no logic in the version that he gave a checkbook to Attorney Na'amneh, who represents Sa'id, so that he would take his ID number from the book.  There is no possibility that he did not know how many checks were withdrawn from his bank account or how many checks were torn from the ledger, and there is no logic in claiming that he does not know how to identify whether it is his handwriting or the lawyer's.  Mu'taz's attempt to distance himself from the transaction and from paying for it is too transparent, and the matter is sharpened in light of the allegation of forgery that he remembers to raise at the end of his interrogation (a claim that was made casually and not proven) and the sweeping denial of any deal with Ali and his brothers.  This denial by Mu'taz also contradicts his previous version, given during the hearing, regarding the sale of 4 dunams (his) to Said, which is in fact three dunams in the third transaction, which he purchased in the second transaction, and an additional dunam that was part of the total area sold to Said in the fourth transaction.
79. Therefore, I reject the attempt of Ali and Mu'taz to disavow the second transaction and determine that the versions of both of them were not reliable and clearly contradict all the documents and evidence in the file. I therefore determine that the second transaction is a valid transaction for all intents and purposes, in which Ali and his two brothers sold all their shares in the plot.  This transaction, in which Ali sold his full rights in the plot, which constitutes 1/12 of it, is a transaction contrary to the gift transaction in which he transferred those shares to the plaintiffs without consideration.  This counter-transaction ended in registration. 

Competition between rights

80. The plaintiffs claimed in their summaries that Sa'id did not show that the transaction in which he purchased the rights from Mu'taz (the third transaction) met the conditions of section 9 of the Land Law, and that he did not prove how much money was paid to Ali, but that the contrary transaction was the transaction between Ali (and his brother) and Mu'taz. Said paid the price to Mu'taz and not to Ali.
81. With regard to the consideration, in the relationship between Ali and Mu'taz, the very signing of the agreement constitutes confirmation of the payment of the consideration. This stipulation is signed by the parties themselves.  At the same time, there are checks drawn at his expense on Mu'taz at Ali's orders, in order to show payment of consideration, and at the very least to transfer the burden to the plaintiffs, to show otherwise.

We emphasize that despite Mu'taz's various claims regarding the checks, he did not deny that he signed them, and despite all the ambiguity surrounding the bank account on which they were drawn, no evidence was presented that could contradict the payment of the consideration, even though this evidence, in the form of Ali's bank statements and/or a reference regarding the restriction of Mu'taz's account, is with the knowledge and possession of Ali and Mu'taz and the plaintiffs could easily have could.  against the background of the cooperation between the parties, to act to submit them.

82. With regard to the consideration in the third transaction, I have already noted above that this was proved by submitting a reference regarding a bank transfer to Mu'taz's bank account in the amount of ILS 150,000 and a check for his order in the amount of ILS 70,000, which constitutes the balance of the agreed consideration. In this context, it should be emphasized that the bank account to which the funds were transferred is the same account on which Mu'taz's checks were drawn at Ali's orders.  It should also be emphasized that the date of payment of the check given to the Mu'taz Order, after the bank transfer has already been made, is the date of signing the agreement in the third transaction, i.e., February 15, 2023.

In this regard, I will add that based on the content of the various agreements that were submitted and in the absence of any argument by any of the parties in the matter, I am under the impression that the consideration given is a valuable consideration that meets what is required in this competition between the rights.

83. As for the element of good faith - the good faith required of the other buyer is subjective and objective good faith. As part of the subjective good faith, the second buyer's knowledge of the first transaction will be examined when the real estate transaction is made.  It is not necessary that the second buyer actually knew about the transaction, and that he acted blindly and suspected the existence of the transaction is sufficient to establish a lack of good faith.  In the framework of the requirement for objective good faith, it will examine whether the buyer has checked the land registry or the status of the possession of the land before entering into the transaction (CA 1117/06 Al-Quds Corporation v.  Heirs of the late Muhammad Ali Abd al-Rahman, [Nevo] (April 14, 2010), CA 7113/11 Estate of the late Afif Muhammad Bayad v.  Estate of the late Hosni Ahmad Laham [Nevo] (February 27, 2014), hereinafter "the Laham case").
84. In the statement of claim, it was claimed that the gift transaction prevailed because it was ahead of time and that Adv. Naamneh knew or should have known about the gift transaction. Nothing more.  In the plaintiff's affidavit, it was also claimed, in the matter of good faith, that all those involved were "residents of the village of Araba", knew each other, and knew about the gift deal.
85. Well, the contradictory transaction that we are dealing with is the transaction between Ali and Mu'taz; the good faith that we are examining is that of Mu'taz. Ordinarily, the second purchaser, Mu'taz in the circumstances, is interested and seeks to prove his good faith in the transaction, in order to overcome, if the other conditions of section 9 are met, to the first transaction.  In the circumstances here, and as I have written, Mu'taz chose to join the plaintiffs and deny, in sweeping denial, "everything." the purchase of the land from Ali and his brother, the payment of the consideration and the sale of Ali's land to Said.  Mu'taz did not give a positive version in his testimony, neither in the context of good faith nor at all.  In these special circumstances, in view of Mu'taz's sweeping denial and his attempt to deny the very engagement in the contrary transaction (an attempt that was rejected by me), in view of his deliberate action not to give a version of the sequence of events, and in light of his association with the plaintiffs, I am of the opinion that the burden is on the plaintiffs to prove the lack of good faith in the contrary transaction.  The plaintiffs did not meet this burden.  The plaintiffs did not claim and did not show that Mu'taz knew about the previous gift transaction in time before engaging with Ali and his brother.  Nor did they claim or prove the existence of any indications that indicate Mu'taz turned a blind eye.
86. As noted, the plaintiffs claimed that all those involved were "residents of the village of Araba" who knew each other, in order to prove that they knew about the gift deal. This argument has no place.

Araba is a city (and not a village as stated in the affidavit) with close to 30,000 residents, according to Said's testimony.  This is not a small neighborhood where people hear and know (perhaps) about transactions that some of them have made.  The fact that Ali, the plaintiffs and Mu'taz are relatives does not mean that Mu'taz knew about the transaction in real time.  In today's modern era, it is not even possible to expect relatives to know about transactions involving their relatives.  No testimony or claim was heard as to the nature of the relationship between Ali and Mu'taz or between Mu'taz and the plaintiffs, and there is no indication that Mu'taz knew or should have known, about the gift deal, in light of a special or close relationship with Ali and/or the plaintiffs.  On the contrary, and perhaps precisely against the background of the kinship, the line of logic can support the idea that Mu'taz would not have knowingly entered, risked and purchased land that had already been given as a gift to his relatives, when there was no claim of any rivalry with the plaintiffs, or of Mu'taz's special interest in purchasing the specific land, for a clear economic feasibility in purchasing the rights or for some business opportunity.

87. With regard to possession of the land, which is often an indication of the existence of a contrary transaction, it should be noted that this is agricultural land, and neither party has devoted an orderly argument to the matter of possession of it (except for Basel, who claimed that he visited the land before purchasing it). The plaintiff actually referred in his testimony to the cultivation of the land and claimed that they had cultivated it for decades (since the 1980s), but this argument is irrelevant, if only because from the outset it was land owned by the three brothers: the plaintiffs' late father and his two brothers, so the issue of possession does not tip the scales in favor of any of the parties here.
88. In the plaintiffs' summaries, it was claimed for the first time that Adv. Naamneh knew about the gift transaction because he handled "the foreclosure imposed on Ali Ben Ali." This argument was not raised in the statement of claim or in the plaintiff's affidavit, and more importantly, it was not factually substantiated.  Only at the hearing, without presenting paperwork or documents, did the plaintiff claim in the course of his cross-examination that there was a voucher that "you took it" (and the matter was addressed to Attorney Na'amane, p.  3), while elsewhere in the transcript he stated that "I don't know who paid it, and I don't know that there is a voucher..." (p.  19).  It was not proven that there was a foreclosure, it was not clarified which foreclosure was involved and how it was canceled, the plaintiffs did not show who paid the debt that is the subject of the foreclosure, to the extent that it was paid, and who handled it, and it was not proven that the foreclosure was sufficient to raise a red light regarding a previous transaction.  The plaintiff himself stated in his testimony that Ali "had a lot of debts on the plot" (p.  2).  A foreclosure of Ali's rights, if any, is not necessarily relevant to a previous transaction.  In the absence of a clear and orderly factual basis that the plaintiffs could bring and establish, this foreclosure or knowledge of it cannot be considered proof of the lack of good faith on the part of any of the relevant parties.
89. Beyond the aforesaid, with regard to the burden placed on the plaintiffs to show a lack of good faith and consideration in the contrary transaction, in light of the sweeping denial of Mu'taz and his association with the plaintiffs, a solid basis can be found on the question of the burdens in the words of the Honorable Justice Amit in the Laham case, in which he expressed his opinion that the Ganz rule should be interpreted in a broad way, since the registration of a warning note is a simple and inexpensive act and the cost of preventing the damage is zero in comparison to the very high expectation of damage. Hence, the burden should be placed on the first buyer at the time of his negligence in not registering a warning note, the burden of showing that the second buyer at the time acted in bad faith or that he knew or should have known about the first transaction.
90. In the judgment given in CA 8609/15 Ammar Mustafa v. Daliyat al-Carmel Local Council, in paragraph 8 [Nevo] (May 3, 2017), the Honorable Justice Amit held in this context:

"On my own, I am inclined to be of the opinion that a first buyer who did not act to register a warning note should be stringent, and the burden should be placed on him to show that the second buyer at the time acted in bad faith or that he knew or should have known about the first transaction..." The Honorable Justice Amit reiterated these words in CA 1405/19 Estate of the late Yosef Naamneh, his sons v.  Na'amneh Omar Hamada [Nevo] (November 16, 2020) and added: