Session Date: 10 March 2009

Appeal by Cassation No. 10 of 2009 – civil appeal by cassation

Jurisdiction “referral to the court having jurisdiction” – judgment “its final authenticity: the scope of final authenticity” – res judicata claim.

Final judgment on lack of jurisdiction and referral – its effect – no final authenticity before the court to which a claim is referred except within the scope of reasons forming the basis for such judgment – its requirement – the court to which the claim is referred may issue a fresh judgment on its lack of jurisdiction over the claim for reasons other than those forming the basis of the referred claim – that this does not involve a violation of the final authenticity of another judgment or a passive conflict of jurisdiction – the reason for this.

A judgment by a court on lack of jurisdiction over a claim and referral to a court it believed has such jurisdiction does not acquire res judicata status – preventing appeal by cassation – before the court to which such referral was made, except within the scope of reasons forming the basis for such judgment. In other words, such referral shall not prevent the court to which the claim was referred from issuing a fresh judgment on its lack of jurisdiction once it realizes such lack of jurisdiction, for reasons different from those on which the referred judgment was based.

The civil circuit’s judgment, on its lack of jurisdiction over the claim, because the services of the Appellant were terminated before the application of Law No ) 7 ( of 2007 on the Settlement of Administrative Conflicts, does not involve any violation of the final authenticity of the judgment by the civil circuit, nor any passive conflict of jurisdiction, since by issuing such judgment the claim was finally settled. 

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 has initially brought the claim No 1562/2005 civil – general – applying for a judgment ordering the Respondent to pay 440,000 Riyals being the total of amounts due as end of service indemnity and leave allowance, 500,000 Riyals in compensation for material damages, 500,000 Riyals in compensation for moral damages. He stated that he commenced service with the Ministry of Electricity and Water on 5.8.1986 and on 1.9.2002 he was transferred to the Public Corporation for Electricity and Water, established by Law No ) 10 ( of 2000. Upon the end of his services at the Corporation on 30.9.2002 he was surprised that his end of service payment was calculated on the basis of his service period at such Corporation only, without including the period of service at the Ministry. The court issued a judgment that it has no jurisdiction to entertain the claim, and referred it to the administrative circuit for the latter’s jurisdiction, where the claim was registered as No 22/2008 – administrative. The administrative circuit issued a judgment that it had no jurisdiction. The Appellant lodged against the judgment an appeal No 48/2008 and, on 25.11.2008 the court dismissed the appeal. The Appellant then lodged against the latter judgment an appeal by cassation, which was presented before this Court, at the deliberations chamber, and it fixed a session for its consideration.

This appeal by cassation is based on a single reason, in which the Appellant contends against the judgment so appealed that it violated the law and erred in its application. He states that by confirming the judgment by the administrative circuit on its lack of jurisdiction over the claim, the judgment violated the final authenticity of the judgment issued by such administrative circuit on its lack of jurisdiction over the claim and referring the same to the administrative circuit having jurisdiction, thereby obtaining res judicata status preventing appeal by cassation; and that this renders the judgment defective and worthy of appeal by cassation.

This contention is inappropriate. A judgment by a court on lack of jurisdiction over a claim and referral to a court it believed has such jurisdiction does not acquire res judicata status, preventing appeal by cassation, before the court to which the claim was referred, except within the scope of reasons forming the basis for such judgment. In other words, such referral shall not prevent the court to which the claim was referred from issuing a fresh judgment on its lack of jurisdiction once it realizes such lack of jurisdiction for reasons different from those on which the referred judgment was based. The judgment of the civil circuit that it had no jurisdiction over the claim was different in terms of reason and basis from the judgment of the administrative circuit on its lack of jurisdiction to entertain such claim. The reason for the latter judgment was the termination of the Applicant’s services before the application of the Law No ) 7 ( of 2007 on the Settlement of Administrative Disputes. Accordingly, such judgment did not involve any violation of the final authenticity of the judgment issued by the civil circuit, nor did it cause any passive conflict of jurisdiction, since the claim has accordingly been finally settled. The contention is therefore inappropriate.

According to the aforesaid, this appeal by cassation must be dismissed.