Session of 16 December 2008
Civil Cassation Appeal by Cassation No. 141/2008
 
(1,2) Appeal by cassation “power of attorney in appeal by cassation” “the reasons of an appeal by cassation: reasons relating to public order” – advocacy – public order – power of attorney.
 
(1) A cause relating to public order – the Cassation Court may entertain the same even where it is not included in the statement of appeal by cassation nor raised by litigants – S. 4 of Law No 12 of 2005 on Appeal by Cassation.
 
(2) That an appellant should submit the document establishing the power of attorney of the advocate authorized to handle the appeal by cassation – S. 6 of Law No 12 of 2005 on Appeal by Cassation – the issuance of the power of attorney by a representative of a juridical person – failure by the advocate lodging the appeal by cassation to submit what establishes the capacity of the legal representative of the juridical person deputed to lodge such appeal until the closing of litigations – its effect – inadmissibility of the appeal by cassation – the justification of this.
 
1- Section 4 of the Law No 12 of 2005 on Appeal by Cassation provides that this Court may, of its own accord, and as established by its jurisprudence, entertain a cause relating to public order, even where such cause is not included in the statement of appeal by cassation and not raised by the litigants.
 
2- Section 6 of the Law No 12 of 2005 on Appeal by Cassation makes it mandatory on the appellant to include, upon the submission of the statement of appeal by cassation, a documentation of the power of attorney of the advocate deputed to sign such statement, failing which such appeal would be inadmissible, in which connection the court shall issue a judgment of its own. The objective behind this is to ensure the validity of the power of attorney, and the extent of its scope for including appeal by cassation. Where the power of attorney is issued by a representative of a juridical person, the advocate deputed for lodging the appeal by cassation should include, upon submission of his power of attorney, what establishes the capacity of the legal representative of the juridical person in whose name the appeal by cassation has been lodged, for the court to be assured of such capacity, and the extent of the power to depute an advocate for lodging an appeal by cassation on behalf of the juridical person so represented.
The advocate lodging the appeal by cassation has submitted with the statement a power of attorney issued by (…) on his behalf and in his capacity as a manager with power to sign for the (…) Company on whose behalf the appeal by cassation was lodged but without enclosing what would establish that such principal was the legal representative of such a Company, according to its legal structure, so that the court may be assured of the capacity of such principal, and his power to appeal by cassation against judgments and authorise advocates for that purpose. The appeal by cassation is therefore not admissible.

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 (…) Establishment for Contracting and Trading, being the Respondent, brought the claim No (…) applying for a judgment ordering the Appellant Company to pay to it the amount of 392,581 Riyals, and another amount of 500,000 Riyals in compensation for what it incurred as a result of the Appellant’s failure to pay the balance of amounts due in consideration for subcontracting works assigned to it. The Respondent then procured the issuance of an order for precautionary attachment on the deliverables due for the Appellant against the employer. It followed this with a claim No (…) applying for a judgment declaring the validity of the attachment, which was challenged by the claim No (…) brought by the Appellant applying for a judgment nullifying such attachment and cancelling it. The Respondent also brought a claim No (…) for a judgment ordering the Appellant to pay to it the balance of the aforesaid amounts due for contracting works and the payment of compensation. It followed it with a claim No (…) applying for a judgment declaring the validity of the attachment on the property of the Appellant with the employer. The Appellant then brought a claim No (…) applying for a judgment nullifying the attachment and cancelling it. It also brought a subsidiary claim applying for ordering its opposing litigant to pay to it the amount of 3,732.773 Riyals in compensation for damages incurred as a result of its violation of contractual commitments. The court combined these claims and deputed an expert who submitted his two report, then it issued a judgment on the original claim ordering the Appellant to pay to the Respondent the amount of 425,275 Riyals with interests for delay at the rate of 5% from the date when the judgment becomes final and until payment, declaring the validity of attachment in the two claims and postponing judgment on the subsidiary claim until the committee of appointed experts submits their report. The Appellant lodged against the judgment on the original claim an appeal No 1144/2004. The court suspended its judgment on it until the issuance of a judgment on the subsidiary claim. The firt instance court issued a judgment dismissing the latter claim, and the Appellant lodged against the judgment an appeal No 70/2008, which the court combined with the first appeal and, on 25.6.2008, issued a judgment on both of them quashing the appealed judgment’s decision on delay interest, and confirming it otherwise. The Appellant lodged against the said judgment an appeal by cassation which was presented before this Court, at the deliberation chamber, where a session was fixed for its consideration.
 
Section 4 of the Law No 12 of 2005 on Appeal by Cassation provides that this Court may, of its own accord, and as established by its jurisprudence, entertain a cause relating to public order, even where such cause is not included in the statement of appeal by cassation and not raised by the litigants. Section 6 of the Law No 12 of 2005 on Appeal by Cassation makes it mandatory on the appellant to include, upon the submission of the statement of appeal by cassation, a documentation of the power of attorney of the advocate deputed to sign such statement, failing which such appeal would be inadmissible, in which connection the court shall issue a judgment of its own. The objective behind this is to ensure the validity of the power of attorney, and the extent of its scope for including appeal by cassation. Where the power of attorney is issued by a representative of a juridical person, the advocate deputed for lodging the appeal by cassation should include, upon submission of his power of attorney, what establishes the capacity of the legal representative of the juridical person in whose name the appeal by cassation has been lodged, for the court to be assured of such capacity, and the extent of the power to depute an advocate for lodging an appeal by cassation on behalf of the juridical person so represented.
 
The advocate lodging the appeal by cassation has submitted with the statement a power of attorney issued by (…) on his behalf and in his capacity as a manager with power to sign for the (…) Company on whose behalf the appeal by cassation was lodged but without enclosing what would establish that such principal was the legal representative of such a Company, according to its legal structure, so that the court may be assured of the capacity of such principal, and his power to appeal by cassation against judgments and authorise advocates for that purpose. The appeal by cassation is therefore not admissible. Accordingly, this appeal by cassation is inadmissible.