Session of 11 January 2011
Civil Cassation Appeal by Cassation No. 208 / 2010

1- The Cassation Court shall of its own accord ensure the satisfaction of the conditions for appeal by cassation, and shall issue a judgment dismissing such appeal once the conditions relating to capacity and interest are failed.

The Cassation Court shall, of its own accord ensure the satisfaction of the conditions for appeal by cassation, and shall issue a judgment dismissing such appeal once the conditions relating to capacity and interest are failed.

2- The conditions for admitting an appeal by cassation – that the appellant should be party to the litigation where the judgment appealed against by cassation was issued, either in person or through a deputy. A person shall not be considered as party to the litigation through a representative by a third party unless such representation is definite.
It is established jurisprudence of this Court that it is a condition for the admission of an appeal by cassation that the appellant be a party to the litigation in which the judgment appealed against by cassation was issued, either in person or through a deputy, and that no person shall be considered as a party in the litigation through representation by a third party unless such representation is definite.

3- The power of attorney issued for an advocate lodging the appeal by cassation should have been issued by a person having the right to represent private juridical persons before the courts – the chairperson of a company board of directors is the chief of the company and shall represent such company before third parties and before the courts.
As regards private juridical persons, the power of attorney issued for an advocate lodging an appeal by cassation should be issued by a person with the right to represent such juridical person before the courts. Section 102 of the Commercial Companies Law, in connection to shareholding companies, provides that the chairperson of a company board of directors is the chief of the company and shall represent such company before third parties and before the courts.

4- Authorisation issued by the members of the board of directors of a shareholding company to the deputy chairperson of a company to represent such board before the courts shall be disregarded. This is because the power to delegate is limited to the chairperson of the board of directors in cases of delegation to third parties.

The advocate lodging the appeal by cassation has submitted with the statement a power of attorney issued by ....., in his capacity as deputy chairperson of the board of directors, and not by the chairperson of such board who has the legal capacity to represent the Bank before the courts according to the law. This does not include authorisation issued by the members of the board of directors to the deputy chairperson of such board for representation before the courts, since the power to delegate is limited to the chairperson of the board of directors in cases of delegation to third parties. Accordingly, failure to submit a power of attorney for the Bank issued by its legal representative, until the holding of the appeal file for the issuance of judgment, renders the same inadmissible.

The Facts
On 26.9.2010 an appeal by cassation was lodged against the Court of Appeal judgment No 91/2009, issued on 29.7.2010, by a statement wherein the Appellant applied for a judgment admitting the appeal by cassation in form and, as regards the substance, to conduct cassation of the said judgment and consider the substance. On the same day the Appellant submitted an explanatory statement and, on 5.10.2010 the Respondent was notified with the statement of appeal by cassation. At the session held on 14.12.2010 the said appeal was presented before the Court, at the deliberation chamber where it decided that it is worth consideration and fixed a session for the litigation. On 28.12.2010 the claim was heard before this Circuit as detailed in the minutes of the session, where the advocate for the Appellant insisted on the contents of his statement. The Court postponed judgment to this session of today.

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 Appellant brought the claim No 904/2008 applying for a judgment ordering the Respondent to pay to him the amount of 46,755.93 Riyals being the value of the debt owed to the Respondent for banking facilities obtained, in the form of a Visa card, until 30.4.2008, with interest at 23% per annum as of 1.5.2008 until full payment, and to pay the amount of 392,549.47 Riyals being the value of the debt owed by the Respondent for banking facilities, in the form of a personal loan, until 30.4.2008 and interests at 13%.75 per annum as of 1.5.2008 until the completion of full payment. Upon failure by the Respondent to pay the Appellant brought the claim. The court issued a judgment ordering the Respondent to pay to the Appellant the amount of 46,755.93 Riyals on the Visa card account, pay to the Bank the amount of 392,549.47 Riyals on the personal loan account, and rejected applications otherwise. The Appellant lodged on 29.7.2010 against such judgment an appeal no 91/2009 and the court issued a judgment confirming the judgment appealed against. The Appellant lodged against such judgment an appeal by cassation.

The Cassation Court shall of its own accord ensure the satisfaction of the conditions for appeal by cassation, and shall issue a judgment dismissing such appeal once the conditions relating to capacity and interest are failed. It is established jurisprudence of this Court that it is a condition for the admission of an appeal by cassation that the appellant be a party to the litigation in which the judgment appealed against by cassation was issued, either in person or through a deputy, and that no person shall be considered as a party in the litigation through representation by a third party unless such representation is definite. As regards private juridical persons, the power of attorney issued for an advocate lodging an appeal by cassation should be issued by a person with the right to represent such juridical person before the courts. Section 102 of the Commercial Companies Law, in connection to shareholding companies, provides that the chairperson of a company board of directors is the chief of the company and shall represent such company before third parties and before the courts. The advocate lodging the appeal by cassation has submitted with the statement a power of attorney issued by ....., in his capacity as deputy chairperson of the board of directors, and not by the chairperson of such board who has the legal capacity to represent the Bank before the courts according to the law. This does not include authorisation issued by the members of the board of directors to the deputy chairperson of such board for representation before the courts, since the power to delegate is limited to the chairperson of the board of directors in cases of delegation to third parties. Accordingly, the failure to submit a power of attorney for the Bank issued by its legal representative, until the holding of the appeal file for the issuance of judgment, renders such appeal inadmissible.

Therefore
This Court hereby decides that this appeal is inadmissible. It orders that the bank shall pay the costs and the surety be expropriated.