Session Date: 23 June 2009

Appeal by Cassation No. 62 of 2009 – civil appeal by cassation

1- Judgment “its reasoning: what does not cause defect thereof” – claim “defence therein” – pleadings – court of first instance “its powers in relation to response to the pleadings of contesting parties”.

Where the court fails to respond to pleading or a legal defence that includes a fact for which the relevant party did not present an evidence, nor had he applied for allowing him to establish it by any legal means – no defect.

(3,2) cassation “among the conditions for allowing an appeal by cassation: interest” “reasons for appeal by cassation: irrelevant reasons, legal reasons involving a fact” – claim “among the conditions for its allowance: interest”.

(2) interest – a prerequisite for allowing contesting and appeal by cassation – Section 1 of the Procedures Law – a contention that only realizes a pure theoretical interest – irrelevant.

(3) a defence based on a fact not previously pleaded before the court of first instance – cannot be contested afresh before the Court of Cassation.

(4) Judgment: its reasoning: defects in argumentation: error in the application of the law” – contract “contract of employment” – employment “rights and obligations of the parties to an employment contract: among the obligations of the employer: the commitment to procure residence for the employee”.

Procuring a residence for the employee under the terms of an employment contract – being a duty of the employer – that the latter shall not be relieved of such duty except by procuring a residence as agreed under the contract – the employee’s refusal to reside in such residence and his intention to have his own residence – its effect – loss of his right to apply for his costs incurred in procuring such residence – that the judgment appealed by cassation falls in breach of the aforesaid jurisprudence, and concludes that the Appellant was not entitled to a residence allowance for his failure to expressly demand the same for 18 years – the error that precludes the court from exploring the commitment of the Respondent under the employment contracts in relation to residence.

2- It is established jurisprudence of this Court that the court of first instance could not be blamed for failing to respond to a pleading or legal defence involving a fact for which the relevant party did not present evidence, nor had he applied for allowing him to establish such fact by any legal means. It was evident that despite pleading before the court the invalidity of the appeal statement for being signed by an advocate not registered as accredited before the Appeal Court, the Appellant failed to produce evidence for the fact involved in such legal defence. Such evidence would be sourced from the body legally empowered to register advocates. The court of first instance cannot therefore be blamed for not responding to the Appellant’s pleading in this connection.

2- It is established jurisprudence of this Curt that it is a precondition for the admission of contesting before the courts that a claimant, in connection to the application presented before the court, has a benefit to be gained out of a judgment to be issued against the defendant. Such benefit is described by section 1 of the Civil and Commercial Procedures Law as an existing legal interest. The Appellant by cassation is not an exception to this general principle. Where the precondition of interest fails, or where such interest is a pure theoretical interest from which the Appellant gains no legal benefit, contention against the judgment becomes irrelevant.

3- It is established jurisprudence of this Curt that no contention may be brought before the Court of Cassation by way of defence which is based on a fact not previously pleaded before the court of first instance. It is evident that the papers do not reveal that the Appellant has pleaded before the two levels of first instance court that his dismissal was effected by a partner not empowered to take the dismissal decision. He cannot, therefore, plead such a defence afresh before the Court of Cassation.

4- The obligation on the employer to procure a residence for the employee under the provisions of an employment contract cannot be relieved except by procuring such residence as agreed in the contract. If the employee refuses to reside in such residence and decides to have his own residence he would lose his right to apply for his costs incurred in procuring such residence. The judgment appealed by cassation has found that the Appellant did not deserve compensation for any costs incurred in procuring a residence simply because he was silent about claiming such residence for 18 years, but without any claim by the Respondent that it procured a residence as required under the Appellant’s employment contracts and that the latter refused to reside in such residence, preferring to procure his own residence instead. The judgment therefore falls in breach of the law which precluded the court from exploring whether or not the Respondent had implemented its commitment under the employment contracts in relation to residence.

The Court
 

Having reviewed the documents, and having heard the arguments and the report read out by the Judge-Rapporteur, and after the deliberations;

The facts, as revealed in the judgment appealed by cassation and other documents, may be summed up as follows.

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 brought the claim No. 14/2007 – employment – general – applying for a judgment obliging the Respondent Company to pay to him the amount of 856,920 Riyals and transfer his sponsorship. He stated that he worked with the Respondent from 3.9.1989 until 1.1.2008 for a salary of 5000 Riyals per month, which was increased to 7800 Riyals, and that he was dismissed and the Respondent refused to pay his dues including after service benefits, commission out of the net profits for 2007, housing allowance, compensation for illegal dismissal by the payment of the salaries for the remaining period of the employment contract, and rent allowance. The Appellant lodged against the judgment an appeal No. 611/2008 and the Respondent likewise lodged an appeal No. 624/2008. On 25.2.2009 the court issued a judgment disallowing the Appellant’s appeal No. 611/2008, and amending the appealed judgment in connection to the appeal No. 624/2008 by oblige the Respondent to pay to the Appellant 140,084 Riyals. The Appellant lodged against the latter judgment an appeal by cassation which was presented before this Court, at the deliberations chamber, and a session was fixed for its consideration.

The appeal by cassation is based on four reasons. In the first reason the Appellant contends against the judgment appealed by cassation that it has insufficient reasoning, because it failed to respond to a defence he raised before the appeal court that the appeal statement was invalid for being signed by an advocate who was not at the time accredited to appear before the appeal court, thereby rendering such judgment defective and worthy of appeal by cassation.

Such contention is inappropriate. The court of first instance could not be blamed for failing to respond to a pleading or legal defence involving a fact for which the relevant party did not present evidence, nor had he applied for allowing him to establish such fact by any legal means. It was evident that despite pleading before the court the invalidity of the appeal statement for being signed by an advocate not registered as accredited before the Appeal Court, the Appellant failed to produce evidence for the fact involved in such legal defence. Such evidence would be sourced from the body legally empowered to register advocates. The court cannot therefore be blamed for not responding to the Appellant’s pleading in this connection. The contention is therefore inappropriate.

In the third reason the Appellant contends against the judgment appealed by cassation that it involved deficient reasoning and bad argumentation. He states that the expert deputed by the first instance court calculated the commission deserved for 2007 by reference to the 2006 company budget, without reviewing the actual company budget for 2007. The court should have responded favourably to his application for a re-deputation of the expert which it did not, thereby rendering the judgment defective and worthy of appeal by cassation.

This contention is inadmissible. It is established jurisprudence of this Curt that it is a precondition for the admission of contesting before the courts that a claimant, in connection to the application presented before the court, has a benefit to be gained out of a judgment to be issued against the defendant. Such benefit is described by section 1 of the Civil and Commercial Procedures Law as an existing legal interest. The Appellant by cassation is not an exception to this general principle. Where the precondition of interest fails, or where such interest is a pure theoretical interest from which the Appellant gains no legal benefit, contention against the judgment becomes irrelevant.

The expert has concluded in his report that the Appellant deserved the payment of 36,380 Riyals as commission and share in the profits for 2007. It has been evident from his final applications before the court of first instance, his applications in the statement of appeal and his final memorandum before the same court that he applied for a judgment declaring his right to a commission at the same value reached by the expert in his report, namely, 36,380 Riyals. The judgment appealed by cassation confirmed such jurisprudence, thereby favourably responding to the Appellants application in connection to the commission. He could not therefore contend in this regard for the lack of interest due to favourable response to his applications. Such contention is therefore inadmissible.

In the fourth reason the Appellant contends against the judgment appealed by cassation that it disregarded the fact that the partner who decided his dismissal has no such share in the company which sufficiently authorises him so to dismiss, and that this right was exclusively exercisable by his father, who has a 99% share in the company capital, contending that the judgment was thereby deficient and worthy of appeal.

This contention is inappropriate. It is established jurisprudence of this Curt that no contention may be brought before the Court of Cassation by way of defence which is based on a fact not previously pleaded before the court of first instance. It is evident that the papers do not reveal that the Appellant has pleaded before the two levels of first instance court that his dismissal was decided by a partner not empowered to take the dismissal decision. He cannot, therefore, plead such a defence afresh before the Court of Cassation.

In the second reason the Appellant contends against the judgment appealed by cassation that it erred in the application of the law. He states that the judgment appealed by cassation has refused its application for the housing allowance which the Respondent remained committed to provide, as the contract dated 13.9.1989 provided for its duty to provide a bachelor’s residence, the contract dated 2.8.2004 provided for the procurement of a furnished family residence, and the contract dated 1.1.2006 provided for a suitable residence. The said judgment based its ruling to refuse the Appellant’s application for the said allowance in lieu of residence on the fact that the Appellant remained silent about his right to apply for housing for the 18 years preceding April 2007. The said judgment therefore becomes defective and worthy of appeal by cassation.

This contention is inappropriate. The commitment by the employer to provide residence for the employee under the contract of employment will not be satisfied except by the procurement of such residence according to the contract. If the employee refuses to reside in such resident and opts for a residence of his own, he thereby forfeits his right to apply for the costs incurred in providing such residence. The judgment appealed by cassation has concluded that the Appellant could not legally deserve compensation for whatever costs incurred in the procurement of a residence simply because he kept silent about claiming residence for 18 years without any claim by the Respondent that it procured residence as provided under the Appellant’s employment contracts but the latter refused to reside therein, preferring instead to reside in a residence of his own. The judgment therefore becomes defective, as it precluded the court from exploring whether or not the Respondent had implemented its commitment under the employment contracts in relation to residence, which renders such judgment defective and worthy of partial appeal by cassation, to the extent of its ruling in this connection.