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Court of Cassation - Civil & Trade Division - Number: 95 /2008

Ruling Summary Record: The Court: Court of Cassation Circuit: Civil & Trade Division Number: 95 Year: 2008 Session Date: 1/6/2009

The Court Panel :Nabil Ahmed Sadek - يحيى إبراهيم عارف. - عبدالله بن أحمد السعدي وعضوية السادة قضاة المحكمة - عبد الرؤوف أحمد البقيعي ابراهيم محمد الطويلة -

Invalidation: "invalidation of appeal" Severance "cases of no severance" Cassation "Statement of Appeal", "Parties to Appeal". Judgment: "Appeal against it: Parties to appeal". Suit "Parties to suit". Public order.

Session: January 6, 2009

Appeal No. 95, 2008, Civil Cassation

) 1-4 ( Invalidity, "Invalidity of Appeal". Severance "cases of no severance" Cassation "Statement of Appeal", "Parties to Appeal". Judgment: "Appeal against it: Parties to appeal". Suit "Parties to suit". Public order.

) 1 ( Relative effect of appeal. Import of. May benefit Appellant only and may be used against Respondent only. Exception. Appeal against judgments involving non-severable subject, joint obligation or in suit involving certain necessary parties. Article ) 162 ( Procedures Judgment debtor who missed the time for appeal or accepted judgment may appeal by joining another party who made an appeal in time. his neglect to do so. Court obligation to instruct Appellant to join him to the appeal, Multiplicity of judgment creditors. Appeal in time against one of them. Others must be joined.

) 2 ( Insertion of Article ) 162 ( Procedures among the general provisions on appeal. Effect of. Must be applied to appeal for cassation in the case of multiple judgment debtors. May not apply in the case of multiple judgment creditors. Reason for.

) 3 ( Statement of appeal for cassation must contain the names of all necessary parties. Article ) 4 ( of Law ) 12 (, 2005 on Appeal for Cassation in Civil Actions. Import of. Appellant neglecting to join some judgment creditors who were parties to the appealed judgment involving non-severable subject. Effect of. Invalidity and inadmissibility of appeal. Being public order related.

) 4 ( Suit for claiming dues from subcontracting works. Non-severable by nature. Statement of appeal for cassation neglecting joinder of one of the judgment creditors' heirs who was party before the lower courts. Effect of. Invalidity and inadmissibility of appeal.

1- Since it's decided from the provision of Article ) 28 ( of Law No. ) 12 (, 2005 on the cases and procedures of appeal by way of cassation that, "where there is no provision on point in this law, the provisions of the Code of Civil and Commercial Procedures shall apply to appeals before the Court of Cassation", and the provision of Article ) 162 (of the C.C.C Procedures that, "Appeal may benefit Appellant only and may be used against Respondent only, provided that if the judgment involved non-severable subject, joint obligation or in suit involving certain necessary parties, in which cases a judgment debtor who missed the time for appeal or accepted judgment may appeal by joining another party who made an appeal in time; if he neglected to do so, the court must instruct Appellant for his joinder to the appeal, and if the appeal is made in time against one of the judgment creditors, the others must be joined. The appeal may also benefit the surety and the party requesting it in the original suit, if made by either of them in case of unison of their defence, and if the appeal is made against either of the other may be joined", means that the general rule in suits of multiple parties, the appeal affects only Appellant without the rest of them, for the appeal filed against one of the parties is used only against that party without the others, unless directed against them, even if they have the same interest in the judgment against such Appellant. However, the law has excepted cases of non-severable subject of judgment, joint obligation or in suit involving certain necessary parties, in which cases a judgment debtor who missed the time for appeal or accepted judgment may appeal by joining another party who made an appeal in time; if he neglected to do so, the court must instruct Appellant for his joinder to the appeal, and if the appeal is made in time against one of the judgment creditors, the others must be joined.

2- If the general rule is application of the provision of Article ) 162 ( referred to, to all appeals except those specially provided for, which means application of the provision of the second paragraph of Article ) 162 ( to the appeal for cassation with respect to the first side of it regarding the case of multiple judgment debtors without its third side regarding the case of multiple judgment creditors, which is provided for differently by Article ) 4 ( of Law No. ) 12 (, 2005 by making it mandatory for the statement of appeal for cassation to mention the name of all necessary parties with the consequence that Appellant omitting names of some judgment creditors in the appealed judgment involving a non-severable subject makes the appeal invalid, hence, inadmissible.

3- The provision of Article Four of Law No. ) 12 (, 2005 for mandatory mention of the names of all necessary parties in the statement of appeal for cassation with the import that neglect by Appellant of some judgment creditors in the appealed judgment involving a non-severable subject makes the appeal invalid, hence, inadmissible; since the legal rule contained in the above provisions refer to the legislator's purpose to regulate a certain situation specifically so that violating it is considered violation of the requirements of public interest in the purpose for unification of judgments in the same litigation, therefore this rule is one of the imperative public order related rules, which may not be violated or ignored and the court is bound to apply it by its own motion.

4- From the facts in the suit papers, Respondents and another instituted suit against Appellant claiming the dues for their predecessor, a foreigner, from subcontracting works, which is a non-severable suit by its nature and circumstances determinable by only one remedy which required only one judgment for all, and since the statement of appeal for cassation did not mention one of the heirs , son of the predecessor, who is a judgment creditor who was a party to the suit before the lower courts, hence the appeal is invalid and inadmissible.

Court
After reviewing the papers and hearing the report, read by the reporting judge, the pleading, and deliberation.
The facts, as stated in the appealed judgment and all the suit papers, are that Respondents filed Suit No. 147/2007 against Appellant claiming the sum of 130,769.84 riyals explaining that the report of the expert appointed by the administration of estates in the suit for dividing the company of their predecessor No. 1864/2004 concluded by Appellant being liable to pay the amount claimed which was due for their predecessor from subcontracting works he contracted for the account of Appellant company which acknowledged in the estate suit referred to their predecessor's entitlement to 227,422 riyals and denied the amount claimed therefore, they instituted the suit supported with copy of the accounting report.
The court passed judgment on 30/4/2007 obligating Appellant with the amounts reached by the accounting report. Appellant appealed under No. 446/2007 and on 28/5/2008 the court passed judgment modifying the amount decreed to the sum of 503,422.04 riyals. Appellant made this appeal for cassation, which was put before this court – in the consultation room – which fixed a date for hearing.
Since it's decided from the provision of Article ) 28 ( of Law No. ) 12 (, 2005 on the cases and procedures of appeal by way of cassation that, "where there is no provision on point in this law, the provisions of the Code of Civil and Commercial Procedures shall apply to appeals before the Court of Cassation", and the provision of Article ) 162 (of the C.C.C Procedures that, "Appeal may benefit Appellant only and may be used against Respondent only, provided that if the judgment involved non-severable subject, joint obligation or in suit involving certain necessary parties, in which cases a judgment debtor who missed the time for appeal or accepted judgment may appeal by joining another party who made an appeal in time; if he neglected to do so, the court must instruct Appellant to join him to the appeal, and if the appeal is made in time against one of the judgment creditors, the others must be joined. The appeal may also benefit the surety and the party requesting it in the original suit, if made by either of them in case of unison of their defence, and if the appeal is made against either of the other may be joined", means that the general rule in suits of multiple parties, the appeal affects only Appellant without the rest of them, for the appeal filed against one of the parties is used only against that party without the others, unless directed against them, even if they have the same interest in the judgment against such Appellant. However, the law has excepted cases of non-severable subject of judgment, joint obligation or in suit involving certain necessary parties, in which cases a judgment debtor who missed the time for appeal or accepted judgment may appeal by joining another party who made an appeal in time; if he neglected to do so, the court must instruct Appellant to join him to the appeal, and if the appeal is made in time against one of the judgment creditors, the others must be joined. And if the general rule is application of the provision of Article ) 162 ( referred to, to all appeals except those specially provided for, which means application of the provision of the second paragraph of Article ) 162 ( to the appeal for cassation with respect to the first side of it regarding the case of multiple judgment debtors without its third side regarding the case of multiple judgment creditors, which is provided for differently by Article ) 4 ( of Law No. ) 12 (, 2005 by making it mandatory for the statement of appeal for cassation to mention the name of all necessary parties with the consequence that neglect by Appellant of some judgment creditors in the appealed judgment involving a non-severable subject makes the appeal invalid, hence, inadmissible. And From the facts in suit papers, Respondents and another instituted suit against Appellant claiming the dues for their predecessor, a foreigner, from subcontracting works, which is a non-severable suit by its nature and circumstances determinable by only one remedy which required only one judgment for all, and since the statement of appeal for cassation did not mention one of the heirs , son of the predecessor, who is a judgment creditor who was a party to the suit before the lower courts, hence the appeal is invalid and inadmissible.