Abu Dhabi Court of Cassation (General Assembly), Request No. 1 of 2015 (Commercial), decision of 10 June 2015
Where the Court of Appeal annuls a first-instance judgment because the statement of claim was not validly served on the defendant, so that proceedings were never properly constituted, it may not simply declare the nullity and stop, nor decide the merits itself. Because the first-instance court has not properly exhausted its jurisdiction over the merits, the two-tier principle, a matter of public order, requires the Court of Appeal to remit the case to the first-instance court, which resumes from the last valid step after proper service.
A claimant obtained a judgment at first instance after the defendant had been served by publication or otherwise defectively. On appeal, the Court of Appeal annulled the judgment for defective service of the statement of claim and remitted the case to the first-instance court to decide the merits. The defendant appealed in cassation, arguing that once the nullity was established the Court of Appeal should have stopped at declaring the first-instance judgment void, because the first-instance court had exhausted its jurisdiction. Because cassation decisions conflicted on this point, the matter was referred to the General Assembly.
The General Assembly started from Article 166 of the Civil Procedure Law: where the first-instance court decided the merits and the Court of Appeal finds a nullity in the judgment or the procedure, it annuls the judgment and decides the case itself, except in the limited cases where it must remit, namely those in which the first-instance court did not consider the substance and did not exhaust its jurisdiction, such as a ruling of lack of jurisdiction or the upholding of a preliminary objection. Proceedings built on void service are legally non-existent, so the first-instance court has not truly decided the merits. The claimant should not lose what was validly done (filing, fees, giving the defendant's address) because of an error by the court's service department. Stopping at a declaration of nullity would contradict the two-tier principle, which requires a decision on the merits at each level. By analogy with Article 13 of the Personal Status Law (No. 28 of 2005), which requires remittal where a judgment is quashed for defective service of the statement of claim, and following appeal 408 of 2012 (civil), the General Assembly adopted the principle that the case must be remitted to the first-instance court where proceedings were not constituted because service of the statement of claim was void, and dismissed the appeal.
A defendant who was never properly served cannot use that defect to end the claim altogether, and a claimant does not have to start again from scratch: the case goes back to the first-instance court for proper service and a decision on the merits. The ruling was given under the former Civil Procedure Law of 1992.
| Article 166 of Federal Law No. 11 of 1992 (former Civil Procedure Law) Decided under this law; it has been replaced by Civil Procedure Code. |
| Article 13 of Federal Law No. 28 of 2005 on Personal Status (applied by analogy) |
“بإقرار مبدأ إحالة الدعوى إلى محكمة أول درجة لنظر الموضوع في حالة القضاء بعدم انعقاد الخصومة لبطلان إعلان صحيفة افتتاح الدعوى”Short quotation from the judgment as published by the court. The full judgment is on the court’s official service.
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