Competence "Jurisdictional competence: exclusion from the ordinary court jurisdiction: inclusion in the administrative court jurisdiction". Judgment: "Reasoning of: flaws of proof: misapplication of law". Suit: "qualification of suit". "Administrative suit". Contract: "Administrative contract".

 

Session: January 27, 2009

 

Appeal No. 118, 2008 Civil Cassations

 

(1-3) Competence "Jurisdictional competence: what excluded from ordinary court jurisdiction: administrative court jurisdiction". Judgment: "Reasoning of: flaws of proof: misapplication of law". Suit: "qualification of suit". "Administrative suit". Contract: "Administrative contract".

 

(1) Disputes arising out of administrative contracts previously within the ordinary court jurisdiction before application of Law No. (7), 2007 on determination of administrative disputes. Determination of which lies solely to the administrative circuit jurisdiction, even if instituted before the coming into force of the said law, unless reserved for decision. Articles (3) and (12) of the same law.

 

(2) Administrative contract. Essence of.

 

(3) Pending dispute relating to administrative contract determination of which was within ordinary court jurisdiction before application of the provisions of  Law No. (7), 2007 on determination of administrative disputes. Implication of.  Determination of which lies solely to the administrative circuit jurisdiction; appealed judgment diverging from this view confirming first instance judgment denying jurisdiction because the current dispute is a review of an administrative decision made before the application of  Law No. (7), 2007, which falls out of jurisdiction of all courts. Incorrect qualification of suit leading to misapplication law.

 

1-  The purport of the text of Article Four of the Articles enacting the Code of Civil and Commercial Procedures, Law No. (13), 1990 – after being replace by Law No. (13), 2005 – is that disputes relating to the contracts undertaking public works and supplying and any other administrative contracts used to be considered by the ordinary courts, but after the enactment of Law No. (7), 2007 on determination of the administrative disputes, which came into force on 1/10/2007, it excluded by Article Three thereof such disputes previously within the ordinary court jurisdiction and included them within the jurisdiction of the administrative circuits established by it and provided in Article Twelve "all suits pending before the courts, which have become by virtue of this law within the administrative circuit or the appellate administrative circuit shall be transferred to it as they are in their same state and without fees, unless they have been reserved for passing judgment.", which means that suits relating to administrative contracts which were within the ordinary court jurisdiction before application of the provisions of Law No. (7), 2007 have become within the sole jurisdiction of the administrative circuits even if instituted before the date of the validity of this law as long as they were within the ordinary court jurisdiction when filed according to the Code of Civil Procedures, have not been reserved for passing judgment.

 

2-  An administrative contract is the contract concluded by a legal person from the public law persons with the purpose of managing or running a public utility, in which it manifests its intention to be governed by the provisions of public law by including in it exceptional conditions which are unusual in private law, or by referring to its regulations. 

 

3-  It is settled from the appealed judgment that Appellant first filed Suit No. on 5/7/2006 before the Primary Full Labor Circuit against Respondent (-) Channel claiming invalidation of the decision terminating his employment and consequences thereof including compensation for the harm inflicted upon him, and that one of the issues he raised was that his relationship with Respondent was contractual and that on examining copy of the contract filed with suit showed that it was concluded with (-) Channel which is a public law person according to the law establishing it – Law No. (1), 1996; by virtue the contract he occupied the post of assistant manager of the marketing department, a position contributing to running of the Channel and achieving its purpose according to what was provided for by Article Two of that law. Also the contract included in some of its terms reference to certain rules and regulations applied by the Channel; hence this contract satisfied the requirements of an administrative contract which was within the jurisdiction of the ordinary courts to decide disputes arising out of it on the date of filing the suit until such jurisdiction was taken from and given to the administrative circuits alone to exercise on the application of the provisions of Law No. (7), 2007. Now that being the case, and that the appealed judgment diverted from the above view on the opinion that the dispute before it was a review of an administrative decision made before application of Law No. (7), 2007 and for that reason it fell outside the jurisdiction of all courts of law, therefore, this judgment erred in qualifying the suit and thus misapplied the law.

Court:

After reviewing the papers and hearing the report, read by the reporting judge, and the pleading, and after deliberation.

Whereas the appeal has satisfied its formal conditions;

The facts, as stated in the appealed judgment and all the papers, are that Appellant filed Suit No. 44/2006 on 5/7/2006 against Respondent before the Labor Circuit of the Primary Full Court against Respondent (-) Channel claiming invalidation of the decision terminating his employment, reinstating him and compensating him with five million riyals for the detriment resulting from his termination; he said explaining this that he worked for Respondent on a contract dated 31/8/2003 and continued doing his work as best he could until he received a notice of termination without any reason or justification, so he filed suit. On 28/11/2007 the Labor Circuit decided to transfer the suit to the Administrative Circuit of the Primary Full Court which filed it under No. 30/2007.

 On 31/1/2008 that circuit decided that it had no jurisdiction to try the suit. Appellant appealed to the Administrative Circuit of  the Court of Appeal under No. 20/2008 and on 17/6/2008 confirmed the appealed judgment. Appellant appealed this judgment by way of cassation, the appeal was considered by this court – in the consultation room – and fixed a date for hearing it.

 

Whereas the purport of the text of Article Four of the Articles enacting the Code of Civil and Commercial Procedures, Law No. (13), 1990 – after being replace by Law No. (13), 2005 – is that disputes relating to the contracts undertaking public works and supplying and any other administrative contracts used to be considered by the ordinary courts, but after the enactment of Law No. (7), 2007 on determination of the administrative disputes, which came into force on 1/10/2007, it excluded by Article Three thereof such disputes previously within the ordinary court jurisdiction and included them within the jurisdiction of the administrative circuits established by it and provided in Article Twelve "all suits pending before the courts, which have become by virtue of this law within the administrative circuit or the appellate administrative circuit shall be transferred to it as they are in their same state and without fees, unless they have been reserved for passing judgment.", which means that suits relating to administrative contracts which were within the ordinary court jurisdiction before application of the provisions of Law No. (7), 2007 have become within the sole jurisdiction of the administrative circuits even if instituted before the date of the validity of this law as long as they were within the ordinary court jurisdiction when filed according to the Code of Civil Procedures, have not been reserved for passing judgment. And since the administrative contract is the contract concluded by a legal person from the public law persons with the purpose of managing or running a public utility, in which it manifests its intention to be governed by the provisions of public law by including in it exceptional conditions which are unusual in private law, or by referring to its regulations, an as is settled from the appealed judgment that Appellant first filed Suit No. on 5/7/2006 before the Primary Full Labor Circuit against Respondent (-) Channel claiming invalidation of the decision terminating his employment and consequences thereof including compensation for the harm inflicted upon him, and that one of the issues he raised was that his relationship with Respondent was contractual and that on examining copy of the contract filed with suit showed that it was concluded with (-) Channel which is a public law person according to the law establishing it – Law No. (1), 1996; by virtue the contract he occupied the post of assistant manager of the marketing department, a position contributing to running of the Channel and achieving its purpose according to what was provided for by Article Two of that law. Also the contract included in some of its terms reference to certain rules and regulations applied by the Channel; hence this contract satisfied the requirements of an administrative contract which was within the jurisdiction of the ordinary courts to decide disputes arising out of it on the date of filing the suit until such jurisdiction was taken from and given to the administrative circuits alone to exercise on the application of the provisions of Law No. (7), 2007. Now that being the case, and that the appealed judgment diverted from the above view on the opinion that the dispute before it was a review of an administrative decision made before application of Law No. (7), 2007 and for that reason it fell outside the jurisdiction of all courts of law, therefore, this judgment erred in qualifying the suit and thus misapplied the law so that it is flawed and requires cassation which the court decrees on its own motion pursuant to Article Four of Law No.(12), 2005 on the cases and procedures for appeal for cassation other than in criminal matters on the basis that the jurisdictional competence of the law courts is a public order related matter;

 

And whereas the subject is ready for determination, and that the first instance judgment was tainted as the appealed judgment with error, it deserves cancelation and since the First Instance Court has not exhausted its jurisdiction over the suit, the suit must be referred back to it determine its subject matter.