Federal Supreme Court, Commercial Appeal No. 694 of 2020, judgment of 22 December 2020
Under Article 6(1) and (3) of Cabinet Resolution No. 57 of 2018 (the implementing regulation of the Civil Procedure Law then in force), a defendant is served by recorded calls, text messages, smart applications, email, fax or other modern means, or personally or at home; only if service by these methods fails may the case management office or judge, after an inquiry with at least one relevant authority, order service by publication in newspapers. Publication is exceptional and may not be used until all available methods, including electronic service on numbers obtained from official records, have been exhausted. Service in breach of this is void, the proceedings are not validly constituted, and the judgment based on them is void.
A bank sued a customer in the Sharjah federal court for AED 4,339,833 with 9 per cent interest under a personal credit facility and a credit card. The process server reported that he could not find the customer at the address given. In response to an inquiry, the Emirates Identity Authority sent an extract of the customer's records showing his home, work and mobile telephone numbers, but the case management office authorised service by publication, and the customer was served and served again in the press. He did not appear. The first-instance court ordered him to pay AED 4,395,962 with 5 per cent interest, and the Court of Appeal, on the bank's appeal, upheld that judgment. In cassation the customer argued that the judgment was void because he had been served by publication before any adequate inquiry or use of the ordinary methods, although he was a UAE national with a fixed residence and address. The Federal Supreme Court agreed. Article 6 of the 2018 regulation makes electronic and personal service the primary methods and allows publication only after they fail and an inquiry has been made; nothing in the file showed any attempt to serve the customer electronically on the numbers supplied by the identity authority. Service of the statement of claim was therefore void, which made the first-instance judgment void and the appeal judgment that upheld it void as well. Applying Article 166(2) of the Civil Procedure Law, under which a judgment void for defective service of the statement of claim is set aside and the case returned to the first-instance court, the Court quashed the judgment, set aside the first-instance judgment and sent the case back to that court to decide the merits.
Creditors pursuing debtors who cannot be found at their recorded address must first try the electronic channels that official records reveal; a judgment obtained after premature publication can be undone, sending the case back to the start. The provisions applied were in the 2018 regulation and the 1992 Civil Procedure Law; the latter has since been replaced by Federal Decree-Law No. 42 of 2022.
| Article 6(1) and (3) of Cabinet Resolution No. 57 of 2018 on the implementing regulation of Federal Law No. 11 of 1992 (Civil Procedure Law) |
| Article 166(2) of Federal Law No. 11 of 1992 (Civil Procedure Law), as amended by Federal Decree-Law No. 18 of 2018 Decided under this law; it has been replaced by Civil Procedure Code. |
“لا يجوز إعلان الخصم مباشرة بطريق النشر في الصحف قبل محاولة إعلان الخصم بإحدى الطرق الإلكترونية”Short quotation from the judgment as published by the court. The full judgment is on the court’s official service.
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