Dubai Court of Cassation (General Assembly), Resolution No. 3 of 2024, 31 January 2024
Under Article 168 of the Civil Procedure Code, where the court of first instance has decided the merits, a Court of Appeal that sets the judgment aside must go on to decide the dispute; it remits the case only where the first-instance court declined jurisdiction or upheld a preliminary plea that stopped the proceedings. So where the first-instance judgment applied a law that did not govern the facts, the Court of Appeal must decide the dispute itself under the applicable law, correcting the error whether it came from the court or from the parties, without sending the case back. The first-instance court has exhausted its jurisdiction, and no level of jurisdiction is lost.
The President of the Court of Cassation asked the General Assembly whether a Court of Appeal that sets aside a first-instance judgment on the merits because it applied a law not applicable to the facts should decide the merits itself or return the case to the court of first instance.
The Assembly considered Article 168 of Federal Decree-Law No. 42 of 2022 (Civil Procedure Code). Where the court of first instance has ruled on the merits and the Court of Appeal finds the judgment, or a procedure affecting it, void, the Court of Appeal sets it aside and decides the case. Where, instead, the court of first instance declared itself without jurisdiction or upheld a preliminary plea preventing it from going on with the case, and the Court of Appeal reverses that ruling, the Court of Appeal must return the case so that the merits can be decided at first instance.
The distinction, the Assembly said, protects the general principle that a case is heard at two levels, a basic principle of the judicial system that neither the courts nor the parties may depart from. When a first-instance court has decided the merits, it has exhausted its jurisdiction, and a Court of Appeal that sets the judgment aside does not deprive the parties of a level of jurisdiction by deciding the dispute itself. It followed that if the first-instance judgment applied a law that did not govern the facts, the Court of Appeal must continue to hear the case, decide the dispute between the parties, and correct the error, whatever its source, applying the correct law, without remitting.
The Assembly resolved accordingly.
Disputes over which law applies, for example the old or new Companies or Commercial Transactions Law, or local versus federal rules, are common in UAE litigation. Parties cannot expect a remittal to the first-instance court when the wrong law was applied; the whole dispute will be decided on appeal under the correct law, so the full case needs to be presented there.
| Article 168 of Federal Decree-Law No. 42 of 2022 (Civil Procedure Code) — text of article 168 |
“بالتصدي لهذا الموضوع والفصل فيه مطبقة القانون الواجب التطبيق عليها ودون الإعادة إلى محكمة أول درجة”Short quotation from the judgment as published by the court. The full judgment is on the court’s official service.
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