Session of 25 November 2008
Civil Cassation Appeal by Cassation No. 96 / 2008
(1) Cassation “reasons of appeal by cassation: legal reasons involving facts, new reasons”.
A defence plea not previously pleaded before the first instance court – a new reason – not allowed to be used in pleadings before the Cassation Court.
(2) Judgment ‘its reasoning: defects in argumentation: error in the application of the law, deficiency in reasoning: what is not considered as such” – liability “vicarious liability for the unlawful acts of the subordinate.
The vicarious liability of a superior for the unlawful acts of his subordinate –where it is based on a presumed fault on his part which could not be refuted – its scope – that the act by the subordinate occurs in the course of his functions, or where such function is exploited, or has assisted such subordinate or provided for him the chance to commit the unlawful act, whether for the benefit of the superior or out of a personal motive, with or without the knowledge of such superior – Section 209 Civil – where the judgment appealed against by cassation accords with such jurisdiction – contending against such judgment as having violated the law and being deficient in reasoning – baseless.
(3) Appeal “judgment in an appeal: stating the reasons of an appeal judgment” – judgment “its reasoning”.
The Court of Appeal – has the right to rely on the reasons of the first instance court judgment without stating new reasons once it is convinced of their validity – its reliance on such reasons – its effect – considering the first instance judgment complementary to the appeal judgment.
It is established jurisprudence of this Court that it is not allowed to plead before the court defences based on facts not previously pleaded before the first instance court. The documents do not include anything to indicate that the Appellant pleaded before the Court of Appeal the nullity of the first instance judgment issued in relation to the Director of (...) Customs, and therefore contention against the judgment appealed against by cassation under this reason amounts to no more than a new reason which should not be raised before this Court.
2- Section 209 of the Civil Law provides that “1- A superior shall be liable for damage caused by his subordinate through his unlawful act done in the course or because of his function. 2- The causal connection exists even where such superior is not free to choose his subordinate so far that the nature of the function assigned to such subordinate is such that it would endow such superior with actual authority regarding the supervision and direction of such subordinate”. This means that the legislature founds such liability on an irrebuttable presumption of fault on the part of the superior, based on his bad appointment of, and negligent supervision over, such subordinate. Where the law defines the scope of such liability by providing that the unlawful act causing damage should have been done by the subordinate in the course of his functions, or by reason of such functions, this is not intended to mean that the said liability should be limited to a fault by the subordinate while rendering his functions, that such functions be the direct cause of such fault, or necessary for the possibility of its occurrence. Rather, such liability would also be realised whenever the act of the subordinate takes place in the course of his functions, or whenever he exploits such functions, or is assisted by the same, in doing the unlawful act, or in any way provided the chance for him so to do, whether done for the benefits of the superior or out of a personal motive, regardless of the connection or otherwise of such motive to his functions, and regardless of knowledge by the superior of the occurrence of the fault.
The judgment appealed against by cassation has established that the Second Respondent served as an employee of the (...) Customs, subordinate to the Appellant, and that the said function enabled him to commit the damaging act resulting in the Appellant’s liability for the act so committed. Accordingly, such judgment becomes in accord with proper law, and contention against it in this connection becomes baseless.
3- It is established that the Court of Appeal relies, for its judgment, on the reasons founding the first instance court if it is convinced with their validity, without stating new reasons. Reliance on such reasons renders the first instance judgment as a complementary part of the appeal judgment.

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 First Respondent brought the claim No (...) civil – general – against the (...) Customs Director and the Second Respondent, applying for a judgment ordering them to jointly pay to him the amount of 300,000 Riyals in compensation. He stated that on 30.1.2005, while he was present in the (...) Customs Directorate, the Second Respondent caused his injury through the latter’s fault, which was recorded in the minutes No (...), and a criminal order was issued fining the Second Respondent the amount of 200 Riyals. Such injury caused him damage entailing compensation, and the second Respondent was employed by the (...) Customs Directorate. Accordingly, he brought the claim. The court issued a judgment ordering the (...) Customs Director and the Second Respondent to jointly pay to the First Respondent the amount of 30,000 Riyals. The Appellant lodged against this judgment an appeal No 518/2007 and, on 30.4.2008, the court issued a judgment confirming the appealed judgment. The Appellant lodged against this judgment an appeal by cassation which was presented before this Court, at the deliberation chamber, where the Court fixed a session for its consideration.

This appeal is based on two reasons. In the first reason the Appellant contends against the judgment appealed by cassation that it erred in the application of the law, stating that the First Respondent corrected the form of the claim before the first instance court by litigating against the Appellant, since the (...) Customs is a directorate subordinate to it. However, the judgment nevertheless ordered compensation against the latter, which should render such judgment null and void for incorrect names of litigations. And because the judgment appealed against by cassation issued a judgment confirming such judgment, despite its nullity, it becomes defective, necessitating its cassation.

This contention is inadmissible. It is established jurisprudence of this Court that it is not allowed to plead before the court defences based on facts not previously pleaded before the first instance court. The documents do not include anything to indicate that the Appellant pleaded before the Court of Appeal the nullity of the first instance judgment issued in relation to the Director of (...) Customs, and therefore contention against the judgment appealed against by cassation under this reason amounts to no more than a new reason which should not be raised before this Court.

In the first and second aspects of the second reason the Appellant contends against the judgment appealed against by cassation that it violated the law and is deficient in reasoning, stating that such judgment confirmed the first instance judgment by ordering the General Directorate of Customs to pay compensation under Section 209 of the Civil Law relating to vicarious liability of superiors for the acts of their subordinates. It did not respond to the defence plea by the Appellant that the Second Respondent was not in the course of his functions when he injured the First Respondent and that accordingly the Customs Directorate should not be liable for his fault, which renders such judgment defective and necessitates its cassation.

This contention is inappropriate. Section 209 of the Civil Law provides that “1- A superior shall be liable for damage caused by his subordinate through his unlawful act done in the course or because of his function. 2- The causal connection exists even where such superior is not free to choose his subordinate so far that the nature of the function assigned to such subordinate is such that it would endow such superior with actual authority regarding the supervision and direction of such subordinate”. This means that the legislature founds such liability on an irrebuttable presumption of fault on the part of the superior, based on his bad appointment of, and negligent supervision over, such subordinate. Where the law defines the scope of such liability by providing that the unlawful act causing damage should have been done by the subordinate in the course of his functions, or by reason of such functions, this is not intended to mean that the said liability should be limited to a fault by the subordinate while rendering his functions, that such functions be the direct cause of such fault, or necessary for the possibility of its occurrence. Rather, such liability would also be realised whenever the act of the subordinate takes place in the course of his functions, or whenever he exploits such functions, or is assisted by the same, in doing the unlawful act, or in any way provided the chance for him so to do, whether done for the benefits of the superior or out of a personal motive, regardless of the connection or otherwise of such motive to his functions, and regardless of knowledge by the superior of the occurrence of the fault.The judgment appealed against by cassation has established that the Second Respondent served as an employee of the (...) Customs, subordinate to the Appellant, and that the said function enabled him to commit the damaging act resulting in the Appellant’s liability for the act so committed. Accordingly, such judgment becomes in accord with proper law, and contention against it in this connection becomes baseless.

In the second and fourth aspects of reason the Appellant contends against the judgment appealed against by cassation its deficient reasoning and contradiction of established documentary evidence, stating that such judgment derived from the claim documents that the Second Respondent had committed the act giving rise to the incident, without stating in the reasons the source from which it derived this, in addition to contradiction of documentary evidence by erroneously stating in the reasons the number of the minutes relating to the incidence, which renders such judgment defective and necessitates its cassation.

This contention is inappropriate. It is established that the Court of Appeal relies, for its judgment, on the reasons founding the first instance court if it is convinced with their validity, without stating new reasons. Reliance on such reasons renders the first instance judgment as a complementary part of the appeal judgment.

The judgment appealed against by cassation made reference in its reasons to the first instance judgment which stated that the commission by the Second Respondent of the damaging act was recorded in the police minutes No (…) and the criminal order imposing the fine of 200 Riyals, which is quite sufficient. The judgment would not thereafter be defective by reason of mentioning the minutes No erroneously in its reasons, since that would simply be a material error not affecting the conclusion arrived at. Therefore, contending against such judgment using such reasons becomes baseless.

According to the aforesaid this appeal should be dismissed.