Appeal by Cassation No.35 of 2009 – Civil Appeal by Cassation
(1, 2) Juristic persons – Persons with capacity to represent juristic persons before the courts” - appeal by cassation – “the prerequisites for admitting an appeal by cassation”: Capacity” – Claim – “capacity in a claim” – representation – “legal representation”.
(1) Representing the state before the courts – the basic rule is that it is the minister who represents his ministry in claims and appeals brought by, or against, his ministry, or a department or directorate subordinate to such ministry – the exception – that the law endow the juristic personality to a certain entity thereof and bestows the representational capacity to a person other than the minister – the effect thereof – the validity of such capacity of the latter within the limits prescribed by the law.
(2) Bestowing the juristic personality on the National Council for Culture, Arts and Heritage by virtue of Law No. 16 of 1998 and endowing the Chairperson of the Council with the capacity to represent the same before the courts, and in relations with others – the issuance of the Amiri Decree No. 1 of 2008 on the Reshuffling of the Council of Ministers, whereby a Minister for Culture, Arts and Heritage was appointed, without abolishing the Council, which was established by the aforesaid Law No. 16 of 1998, or appointing the said Minister as chairman of its board of directors – the effect thereof – that the Minister has no capacity to represent the Council before the courts – lodging by the Minister of Culture, Arts and Heritage of an appeal by cassation as a representative of the National Council for Culture, Arts and Heritage – its effect – inadmissibility of an appeal lodged by a person without capacity.
1- It is established jurisprudence of this Court that the basic rule is that it is the minister who should represent his ministry in claims and appeals brought by, or against, his ministry, or a department or directorate subordinate to such ministry. However, if juristic personality is bestowed on a certain entity thereof, and the capacity to represent is endowed to a person other than the minister, such capacity shall then enjoyed by such other person, within the limits prescribed by the law.
2- The Law No. 16 of 1998 establishing the National Council for Culture, Arts and Heritage has, under Section 1 thereof, endowed such Council with juristic personality. Under section 9 it provided that “the Chairperson of the Council shall represent the Council in its relations with others and before the courts”. In the mean time, the Amiri decree No. 1 of 2008 on the Reshuffling of the Council of Ministers has appointed a Minister of Culture, Arts and Heritage, but without abolishing the Council, established by virtue of the aforesaid Law No. 16 of 1998, or appointing the Minister as chairperson for its Board of directors. Accordingly, such Minister would not enjoy the necessary capacity to represent the Council before the courts, and as such Minister has lodged an appeal by cassation as a representative of the National Council for Culture, arts and Heritage, such appeal should not be admissible for lack of capacity on the part of the person lodging it.