Court of Cassation
Civil & Commercial Circuit No 25/2009
Session date: 5.5.2009
Appeal No 25 of 2009 – Civil Appeal by Cassation
 

Juristic persons – “Agency for a juristic person” – appeal by cassation – “Appeal by agency: Agency issued by the representative of the juristic person – Claim – “Capacity therein” – Advocacy – Agency.

That the Appellant, in connection with appeals by way of cassation, shall submit a power of attorney authorising the legal attorney who signs the statement of appeal by way of cassation – That the legal attorney who signs the statement of appeal by way of cassation fails to submit the power of attorney document issued to him by the chairman of the bank’s board of directors – The person having legal capacity to represent the bank before the courts – up to the point when the appeal is retained for the pronouncement of judgment – Its effect – rejection of an appeal for being submitted by a person without relevant capacity.
Such requirement may not be disposed of by submitting a copy of the power of attorney issued to another person by the chairman of the bank’s board of directors for representation of the bank before the courts – the justifying cause.
Whereas Section 6 of Law No. 12 of 2005 on the Conditions and Procedures for Appeal by way of Cassation makes it mandatory for the Appellant to submit a power of attorney authorising the legal attorney who signs the statement of appeal by way of cassation, so that the Court may ascertain the existence of such power and verify its scope, and whether it empowers the legal attorney to conduct such appeal. And since the documents do not establish that the legal attorney who signed the statement of appeal as an agent of the bank did not present a document to that effect issued by the chairman of the bank’s board of directors who has the legal capacity to represent the bank before the courts, noting that such requirement may not be disposed of by submitting a copy of the power of attorney issued to Mr (  ) by the chairman of the bank’s board of directors for representation of the bank before the courts, since the presentation of the original is mandatory for the court to ascertain the existence and scope of the power, and whether it authorises the delegation of all or part of such power to others. Noting also that the power of attorney issued by Mr (  ) to the legal attorney who conducts the appeal does not show that the issuer did so in his capacity as an agent of the chairman of the Appellant bank’s board of directors. The documents did not include such information up to the point when the appeal was retained for the pronouncement of judgment. Accordingly, the appeal becomes inadmissible for being lodged by a person without legal capacity.

The Court
 

Having reviewed the documents, and having heard the arguments and the report read out by the Judge-Rapporteur, and after the deliberations:
Whereas the facts as revealed by the appealed judgment and other documents may be summed up as follows:
The Respondent brought his claim No.440/2007applying for (a) the nullification of two lease contracts dated 25.9.1996 and 12.4.1996, respectively;(b) anorder evicting the two estates which are the subject-matter of the contracts; and (c) deliveryofthe same to the Appellant for his personal occupation. The Appellant lodged an appeal by way of cassation, which was presented before this Court at the deliberation chamber where a hearing session was fixed. The court rejected the claim. The Appellant appealed the judgment No. 247/2008 dated 12.29.2008 for lack ofasignature by a legal attorney. The Appellant appealed by way of cassation against the latter judgment, which was presented before this Court at the deliberations chamber, and ahearingsession was fixed for its consideration.
Whereas Section 6 of Law No. 12 of 2005 on the Conditions and Procedures for Appeal by way of Cassation makes it mandatory for the Appellant to submit a power of attorney authorising the legal attorney who signs the statement of appeal by way of cassation, so that the Court may ascertain the existence of such power and verify its scope, and whether it empowers the legal attorney to conduct such appeal; and since the documents do not establish that the legal attorney who signed the statement of appeal as an agent of the bank did not present a document to that effect issued by the chairman of the bank’s board of directors who has the legal capacity to represent the bank before the courts, noting that such requirement may not be disposed of by submitting a copy of the power of attorney issued to Mr (  ) by the chairman of the bank’s board of directors for representation of the bank before the courts, since the presentation of the original is mandatory for the court to ascertain the existence and scope of the power, and whether it authorises the delegation of all or part of such power to others. Noting also that the power of attorney issued by Mr (  ) to the legal attorney who conducts the appeal does not show that the issuer did so in his capacity as an agent of the chairman of the Appellant bank’s board of directors. The documents did not include such information up to the point when the appeal was retained for the pronouncement of judgment. Accordingly, the appeal becomes inadmissible for being lodged by a person without legal capacity.