Session date: 16 June 2009
 

Appeal by Cassation No. 55 of 2009 – appeal by cassation.
 

Appeal by cassation “agency in appeal by cassation” – claim “capacity therein” – advocacy – agency.
 

That an appellant must submit a documentary power of attorney for the advocate in the appeal by cassation. Section 6 of Law No. 12 of 2005 on Appeal by Cassation – Failure by the advocate lodging the appeal by cassation to submit a power of attorney issued by the appellant to his agent in the appeal by cassation until the closing of submissions – its effect – disallowing the appeal by cassation – that the number of the power of attorney is mentioned is not sufficient alternative, nor is this rule affected by the fact that the statement of appeal by cassation includes an attachment against the appellant – the relevant reason.

It is established jurisprudence of this Court that by virtue of Section 6 of Law No. 12 of 2005 on Appeal by Cassation that the appellant by cassation shall submit a documentary power of attorney for the advocate authorised to lodge the appeal. It is not necessary that such power of attorney should be issued directly by the appellant by cassation in favour of the advocate. It is sufficient to be issued from the agent of such appellant. However, such power of attorney should empower the authorisation of advocates to lodge appeals by cassation.

It is evident from the papers that the power of attorney issued in favour of the advocate who lodged the appeal by cassation is signed by the appellant’s son in his capacity as agent of his father, by virtue of the power of attorney No. ........... dated 31.3.2003, but without submission of such power of attorney until the closing of submissions which would have enabled the court to ascertain whether or not such power of attorney authorises such son to further delegate advocates for the purpose of appealing by cassation. In this connection it suffices not that the number of the power of attorney was stated, which causes the appeal by cassation to be inadmissible, without the aforesaid being affected by the contents of the appeal by cassation statement in relation to attachment against the appellant. This is because papers included no evidence to that effect and could not support any argument while considering the appeal by cassation.

The Court
 

Having reviewed the documents, and having heard the report read out by the Judge-Rapporteur, and heard the submissions, and after the deliberations;

Whereas the appeal by cassation has satisfied its formalities;

The facts, as revealed in the judgment appealed by cassation and other documents, may be summed up as follows. The Appellant by cassation brought against the two Respondents a claim No. 405/2007 applying for ordering them to register the disputed land in his name. He stated in that connection that he had in his possession a number of land plots, some of which were registered in his name while the Land Registration Department refused to register the other ones on the basis of a letter from the Urban Planning Directorate, stating that those plots are located on a large ditch, rendering them out of use. Even after the Appellant by cassation levelled the land the Land Registration Directorate refused to register it in his name. The court issued a judgment in favour of the Appellant. The Respondent appealed the judgment. On 25.2.2009 the court disallowed the claim for being brought prematurely. The Appellant then lodged an appeal by cassation, which was presented before this Court – at the deliberations chamber, and a date fixed for its consideration.

It is established jurisprudence of this Court that by virtue of Section 6 of Law No. 12 of 2005 on Appeal by Cassation that the appellant by cassation shall submit a documentary power of attorney for the advocate authorised to lodge the appeal. It is not necessary that such power of attorney should be issued directly by the appellant by cassation in favour of the advocate. It is sufficient to be issued from the agent of such appellant. However, such power of attorney should empower the authorisation of advocates to lodge appeals by cassation.

It is evident from the papers that the power of attorney issued in favour of the advocate who lodged the appeal by cassation is signed by the appellant’s son in his capacity as agent of his father, by virtue of the power of attorney No. ........... dated 31.3.2003, but without submission of such power of attorney until the closing of submissions which would have enabled the court to ascertain whether or not such power of attorney authorises such son to further delegate advocates for the purpose of appealing by cassation.

In this connection it suffices not that the number of the power of attorney was stated, which causes the appeal by cassation to be inadmissible, without the aforesaid being affected by the contents of the appeal by cassation statement in relation to attachment against the appellant. This is because papers included no evidence to that effect and could not support any argument while considering the appeal by cassation.