Session of 24June 2008

Civil Cassation Appeal by Cassation No. 74 / 2008

Cassation “a power of attorneyfor lodging an appeal by cassation” – advocacy “the power of attorney for an advocate in an appeal by cassation” power of attorney.

The obligation that an appellant should submit a documented power of attorney for an advocate authorized in the appeal by cassation – Section 6 of Law No 12 of 2005 on Appeal by Cassation – where the appellant fails to present a documented power of attorney for the advocate who signed the statement of appeal by cassation up until the closing of the litigation – its effect – inadmissibility of the appeal by cassation for being presented by a person with no capacity – this could not be dispensed with by merely mentioning the number of the power of attorney, or submitting a photocopy of the same, with an indication that the original copy was submitted to the file of an appeal by cassation that was not combined to the current one – the reasons for this.

It is established that under Section 6 of the Law No 12 of 2005 on Situations and Procedures for Appeal by Cassation in Non-Criminal Matters an appellant shall submit a documented power of attorney for the advocate deciding to lodge an appeal by cassation at the time such statement was presented or during the consideration of the appeal by cassation. Otherwise such appeal by cassation becomes null and void for being lodged by a person with no capacity. This could not be dispensed with by merely mentioning the number of the power of attorney in the statement, or indicating therein that the original copy was submitted to the file of an appeal by cassation that was not combined to the current one. This is because the said submission is mandatory, for the court to ensure its existence and know the limits of the said power of attorney. Nor could this be dispensed with by submitting a photocopy of the power of attorney, because a photocopy has no authenticity unless it is approved by the official authorized to issue the same. The Appellant did not, until the completion of litigation in the appeal by cassation, submit a power of attorney issued by the Appellant in favour of the advocate who signed the statement of appeal by cassation. It sufficed itself by mentioning its number in the statement, submitting a photocopy of it, and indicating that the original was deposited in the file of another appeal by cassation which was not combined. Such appeal by cassation becomes null and void and, accordingly, inadmissible.

Having reviewed the documents, heard the report read out by the Presiding Judge and heard the pleadings, and after due deliberation on the appeal by cassation which satisfied its formal requirements;

The facts, as revealed in the judgment appealed by cassation and other documents, to the extent necessary for the settlement of this appeal by cassation, may be summarised as follows.The Respondent brought the claim No (…) against the Appellant applying for a judgment ordering her to pay the amount of 250,000 Riyals. She stated that she was employed with the Appellant who dismissed her for no legal cause, and that she deserved indemnities, salaries, allowances and the right to get compensation for damages incurred by her as a result of the said dismissal, which prompted her to bring the claim. The court issued a judgment ordering the Appellant to pay the amount of 51,662 Riyals. The Appellant lodged an appeal No 153/2008. On 26.3.2008 the court issued a judgment confirming the judgment appealed against. The Appellant lodged against this judgment an appeal by cassation. The Respondent presented a memorandum of defence against the admission of the said appeal. The appeal by cassation was presented before this Court, at the deliberation chamber, and a date was fixed for its consideration.

The defence pleaded by the Respondent is that the Appellant failed to submit with its appeal by cassation the power of attorney issued by the Appellant to the advocate who lodged such appeal on her behalf.

This defence is appropriate. Under Section 6 of the Law No 12 of 2005 on Situations and Procedures for Appeal by Cassation in Non-Criminal Matters an appellant shall submit a documented power of attorney for the advocate deciding to lodge an appeal by cassation at the time such statement was presented or during the consideration of the appeal by cassation. Otherwise such appeal by cassation becomes null and void for being lodged by a person with no capacity. This could not be dispensed with by merely mentioning the number of the power of attorney in the statement, or indicating therein that the original copy was submitted to the file of an appeal by cassation that was not combined to the current one.This is because the said submission is mandatory, for the court to ensure its existence and know the limits of the said power of attorney. Nor could this be dispensed with by submitting a photocopy of the power of attorney, because a photocopy has no authenticity unless it is approved by the official authorized to issue the same. The Appellant did not, until the completion of litigation in the appeal by cassation, submit a power of attorney issued by the Appellant in favour of the advocate who signed the statement of appeal by cassation. It sufficed itself by mentioning its number in the statement, submitting a photocopy of it, and indicating that the original was deposited in the file of another appeal by cassation which was not combined. Such appeal by cassation becomes null and void and shall accordingly be inadmissible.