Session of 24 June 2008

Civil Cassation Appeal by Cassation No. 70 / 2008

Appeal “a statement of appeal: to be signed by an accredited advocate” – nullity “nullification of a statement of appeal” – advocacy.

Where a statement of appeal is not signed by an accredited advocate – S. (6)(2) of the Advocacy Law No 23 of 2006 – its effect – nullification of the statement – this is not negatively affected where the statement is signed by the appellant, even if such appellant is a lawyer.

It is established jurisprudence of this Court that the provisions of Section 6 of the Advocacy Law No 23 of 2006, that “statements of appeal in judgments issued by the Elementary Court or the Court of Appeal shall be presented signed by an advocate who is accredited for litigation at the court before which the appeal is presented” indicate that the legislature, by requiring the signature of an advocate on the statements of appeal, intends to observe public and private interest at the same time. This is because the supervision of the preparation of statements of appeal by an advocate would result in the observation of legal rules in writing such statements, and thereby eliminate disputes which mostly arise due to such functions of legal nature being performed by lay men and cause damage to stakeholders. Where such procedure is disregarded and a statement is presented without a signature by an advocate accredited for litigation at the court before which the appeal is presented, such a statement becomes a nullity. This is not negatively affected by the fact that the legislature did not explicitly provide for such nullification as a sanction for the violation of the aforesaid Section. The mandatory requirement provided by the legislature results in such nullity as a sanction for the violation of such procedure.

It is evident from the documents that the statement of appeal lodged by the Appellant did not include a signature by an advocate accredited for litigation at the court before which such appeal was presented, and would certainly be inadmissible. Where the judgment appealed against by cassation is in accord with such jurisprudence, it thereby becomes in accord with proper law. This would not be negatively affected by the Appellant having signed the statement, even where such Appellant is a lawyer, so long that he is not also an advocate accredited for litigation before the Court f Appeal.

The Court  

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, may be summarised as follows. The Appellant brought the claim No (…) civil – general – against the Respondents applying for a judgment ordering them to pay to him the amounts shown on the statement being employment dues owed by them. The court appointed an expert who submitted his report, after which the Appellant applied for a conclusive oath by the Second Respondent which the court accepted, executed and issued a judgment rejecting the claim. The Appellant lodged against the said judgment an appeal No 173/2007. On 27.2.2008 the court issued a judgment declaring the statement of appeal as null and void. The Appellant lodged against the latter judgment an appeal by cassation, which was presented before this Court at the deliberation chamber and a session was fixed for its consideration.

This appeal is based on a single reason in which the Appellant contends against the judgment appealed against by cassation that it erred in the application of the law. He states that the legislature has endowed employment claims with certain safeguards to entrench labour rights. It relates the labour rights to public order, and relieved employment claims from legal costs in order to facilitate for the employee the process of pursuing his rights with his employer. It follows, a fortiori, that such claims be relieved of having its statements of appeal being signed by an advocate. Where the judgment appealed against by cassation issues a judgment that the statement of appeal was nullified for not being signed by an advocate despite its signature by the Appellant who is a lawyer, such judgment would be in violation of the law. It thereby introduced a new condition not provided by Section 31 of the Procedures Law at the time when the appeal was lodged, and that this would render such judgment defective and worthy of cassation.

This contention is inappropriate. It is established jurisprudence of this Court that the provisions of Section 6 of the Advocacy Law No 23 of 2006, that “statements of appeal in judgments issued by the Elementary Court or the Court of Appeal shall be presented signed by an advocate who is accredited for litigation at the court before which the appeal is presented” indicate that the legislature, by requiring the signature of an advocate on the statements of appeal, intends to observe public and private interest at the same time. This is because the supervision of the preparation of statements of appeal by an advocate would result in the observation of legal rules in writing such statements, and thereby eliminate disputes which mostly arise due to such functions of legal nature being performed by lay men and cause damage to stakeholders. Where such procedure is disregarded and a statement is presented without a signature by an advocate accredited for litigation at the court before which the appeal is presented, such a statement becomes a nullity. This is not negatively affected by the fact that the legislature did not explicitly provide for such nullification as a sanction for the violation of the aforesaid Section. The mandatory requirement provided by the legislature results in such nullity as a sanction for the violation of such procedure.

It is evident from the documents that the statement of appeal lodged by the Appellant did not include a signature by an advocate accredited for litigation at the court before which such appeal was presented, and would certainly be inadmissible. Where the judgment appealed against by cassation is in accord with such jurisprudence, it thereby becomes in accord with proper law. This would not be negatively affected by the Appellant having signed the statement, even where such Appellant is a lawyer, so long that he is not also an advocate accredited for litigation before the Court f Appeal. Appeal by cassation in this reason therefore becomes baseless. Accordingly, this appeal by cassation should be inadmissible.