Keywords:

Claim, Plea of Non-admissibility, Abatement of Claim, Loss of Legal Status or Interest

Introduction

Sharia Courts Procedures Regulations is the law regulating claims, how to file the same and the appropriate procedures for them, as it mainly aims to resolve any disputes that may arise between individuals, and thus maintain social stability and achieve legal security in transactions, whether it was civil, commercial or administrative.....and returning the stolen rights to their owners through the claim, which is the essence of the work of the judiciary; through it, the litigation is opened, and as a result of the same, the judge issues the judgment in last scope.

In the broadest sense, the claim is considered the tool through which the litigation is presented before the competent court and asked to consider its validity, and in return for this matter and for the procedures to be duly proceeded, with impartiality and fairness and to enable all opponents to defend their claims, from such point appeared the principle of the right of defense.

Everyone shall have the right to claim his right to file a claim, just as the other party shall have the right to defend and the right to respond to his opponent. The first term, the claim, by which the claim is opened, and the litigation takes its judicial form, while the second form is the plea; which known as the right given to the opponent to defend his right and respond to the claims of his opponent.

For the admissibility of the plea, it shall include the interest; it cannot be imagined accepting a plea without an interest. Neither vexatious pleas nor pleas that are not related to the existing litigation, or one of its procedures, are accepted.

Sharia Courts Procedures Regulations have given the defendant many methods to respond to the claim filed against him, and we can classify such methods into two categories, given the position of the defendant, it may be in a negative situation by submitting pleas, the admissibility of which results in the plaintiff’s request being rejected, or not accepted, or the court is prevented from deciding on it due to its lack of jurisdiction over the same. It may take a positive situation by submitting a counter request that results in a judgment in its favor, with what it claims for his benefit (Al-Daraji, 2016).

As it is well -known that the claim does not put the defendant in the position of having to defend only, or that the defendant becomes in a negative position only trying to defend himself against the allegations of his opponent, rather he may submit counter-requests to acquire rights through pleas. Pleas are divided into three types: substantive, abatement, and Plea of Non-admissibility

However, disagreement arises about the latter, especially with regard to nature of the same; Because the procedural law did not set general provisions that apply to all forms of the plea of non-admissibility, as we will see through this research, in addition to the fact that the law did not address the issue of whether the appeal against the judgment of non-admissibility raises the dispute about the origin of the right before the Court of Appeal or not? In other words, in the event of an appeal against the judgment of non-admissibility, does it raise the claim again before the Court of Appeal, or does it only limited to deciding on the validity of the plea only.

The Significance of the Study

We can determine the importance of the topic through two aspects:

The Theoretical Aspect of the Study

It is reflected in studying the plea of non-admissibility through jurisprudence and the law in addition to relying on some comparative experiences through Egyptian and French law in order to identify the strengths and weaknesses during the comparison.

The Practical Aspect

Through the induction of different judgments whether from Courts of the Kingdom or Comparison Courts; for the illustration of commitment level of Judicial action to apply the legal regulations and extent of the curt duly application for the law.

Objectives of the Study

This study attempts to achieve the following research objectives:

1. To identify the concept of plea of non-admissibility between law, jurisprudence, and comparative laws.

2. To identify the nature of plea of non-admissibility between law and the judicial action.

3. To determine the extent to which the judiciary applies this plea by extrapolating a set of judicial judgments in this regard

Statement of the Problem

The problem is general and attributes to the following overarching question:

What is the nature of the Plea of Non-admissibility, and to what extent can we talk about the Plea of Non-admissibility in the Saudi Sharia Procedural Law?

From the main problem arises a set of questions as follows:

1. How did the judiciary deal with the matter of Plea of Non-admissibility?

2. To what extent was the law able to encompass the various aspects of the appeal of Non-admissibility?

Previous Studies

After searching and focusing on the various studies that dealt with the topic, I found a group of books that dealt with civil procedures in general, which were limited to the subject of Plea of Non-admissibility in some paragraphs only.

Fahd Abdul-Aziz Al-Yahya (2004): The pleas in the Saudi sharia procedural law, a research submitted for a master’s degree from the Higher Judicial Institute, Imam Muhammad bin Saud Islamic University, Riyadh.

In light of this study, the researcher attempts to deal with the issue of plea in abatement, plea in bar pleas and the pleas of non-admissibility and did not compare. Therefore, in this research, I thought that it should all be related to the Plea of Non-admissibility and not to delve into the other pleas, because there are many studies that have fulfilled their right to study.

Ali Hassan Al-Atmi (2005): The plea in Sharia and its applications in the Saudi sharia procedural law, supplementary research to obtain a master’s degree from Naif Arab University for Security Sciences.

In the present study, the researcher sought to study the various pleas in the view of Islamic Sharia while comparing the same with what is found in the Saudi sharia procedural law. I tried in this research by trying to include judicial judgments in each of its axes; In order to make the study a mixture of theoretical and practical aspects.

In the same context, I attempted to study the Plea of Non-admissibility on the part of Saudi law and to compare it with other laws, including Egyptian, Iraqi laws, and other leading laws in the field of pleadings. This is conducted in order to find out the weaknesses and strengths, whether in Saudi law or in other law that I dealt with in my study.

Plan of the Study

1. Plea of non-admissibility provisions in the Saudi Law

2. The first subject: cases of Plea of non-admissibility in the Saudi law

3. The first topic: the case of lack of legal status and eligibility.

4. The second topic: Plea of non-admissibility in the event of no interest and the existence of the arbitration clause in Saudi law.

The First Subject: Cases of Plea of Non-admissibility in the Saudi Law

Article 82 of the Sharia Procedural Law is the cornerstone of the principle of Plea of Non-admissibility, especially when it comes to lack of legal status, interest or any other reason, where the law obligated the court to decide not to accept the case on its own, and without the need to raise this plea by one of the parties, as well as at any stage of the litigation, and therefore I will divide this subject into two topics, the first in which I will address the case of lack of legal status and eligibility, and in the second topic for the absence of interest and reason.

The First Topic: The Case of Lack of Legal Status and Eligibility

In this requirement, I will address the case of lack of legal status as a prerequisite for filing the claim (first paragraph) and in a second paragraph for the case of litigants' lack of eligibility.

Paragraph One: Lack of Legal Status

The legal status is a prerequisite for accepting the claim, which is that the plaintiff has the capacity of litigating and defending his interests before the court and related to the subject matter of the dispute (El-Ashmawy, 1957), in other words, the personal and direct interest of the claimant shall be presented.

A part of the jurisprudence sees that the attribute differs from the direct personal interest, so that the case can have the benefit and the legal status is absent.

The fact in sharia procedural law is that, in the text of Article 72, there is a difference between adhering to the plea of non-admissibility for the loss of legal status, and the plea of non-admissibility, which is based on the absence of interest, which leads us to say that he has taken the point of view that says that the concept of interest and adjective does not match.

On the other hand, and speaking about the defendant’s capacity, the matter requires that he have an interest in the right of disputed, if it was not decided inadmissible. A part of the jurisprudence (Abdul Basit Jamei, 1966) considers that the defendant’s loss of capacity cannot be challenged by non- admissibility except in the case of its negation in the plaintiff. Where the case is directed to a person who has no capacity, it means that it is rejected in the matter.

There are jurists who believe that this opinion is blamed for the fact that the rejection of the claim by the court is a topic that requires its exposure to the topic, while accepting the claim or not is a matter that precedes the examination of the topic (Judgment No. 412/T/3 of 1410 AH in Case No. 1/716/Q of 1407 AH).

If it appears to the court that the defendant’s capacity does not exist, then it doesn’t have to consider the matter, and the court only stops when judgment that the case is rejected

This is what a judgment of the Board of Grievances said, “It is established on jurisprudence and Judiciary that the legal status is a basic condition for accepting the claim, and this condition is not just a formal condition, but rather it is one of the conditions gathering the form with the subject.”

From my point of view, I see that there is no doubt that the legal status of the claim is related to the right in it, and among the cases of rejection of the case is what is not related to the objective right on which it is based, and the lesson in this regard is the evidence on which the judgment always bases its decision.

The Second Paragraph: Case of Lack of Eligibility

Eligibility refers to “the characteristics that the Lawgiver determines in a person that makes him entitled, to get rights established for him, or obligations are established for him and actions are valid from him” (Al Yahya, 2004). Person eligibility can be divided into two types:

Capacity of Possession and Capacity to Dispose

Capacity of possession means: “the extent to which a person is capable of being a right holder or of having an obligation” (Al-Atami, 2005). The Capacity of possession of a person begins from the time of his birth to the time of his death. On the other hand, with regard to the obligations of a person, the responsibility of each person is directly raised if he harmed others, and if he concludes a contract, then he shall perform it in good faith. A person shall bear all of his obligations arising from the sources of obligations stipulated by law. If a person is qualified to bear the obligations, then he is responsible for all of them, without exception. If he is not qualified for one of the disqualifications in the law, these obligations may be borne by his guardian and his deputy in accordance with the law. On the other hand, it is not possible to agree on anything that contravenes provisions of capacity, such as public order.

As for the legal person (legal), as it has a legal or regular personality, it has the capacity of possession because it is able to own things, and bears obligations, and it is noticeable that Islamic jurisprudence considers that there is no capacity other than a person given that he/she has the authority to attach rights to/on him/here, and therefore it did not define the legal personality imposed by the law for some bodies and institutions (Al-Azizi, 2018).

Procedural capacity shall also be available, which means the opponent's capacity to perform a procedural act, whether in his name or in the interest of others, and it can sometimes be called the capacity to litigate, and this is for everyone who has the capacity of possession.

His representative in the opponents, such as the representative, the trustee or the guardian, shall represent whoever does not have the procedural capacity and has the capacity to litigate.

The Second Topic: Plea of Non-admissibility in the Event of the Absence of Interest and the Existence of the Arbitration Clause in Saudi law

In this topic, I will address the study of the Plea of Non-admissibility in two paragraphs:

The First Paragraph: Plea of Non-admissibility and the Condition of Interest in Saudi Law

The Saudi sharia procedural regulations considered the condition of interest not only as a condition for accepting the claim, but also as a condition for accepting any plea in the claim, although the Saudi legislator did not stipulate the interest as a condition for accepting any appeal, given that the appeals are in fact only a request, and the judiciary adopted it also, as it stipulates that if the appellant has no interest in the appeal, his appeal may not be accepted.

This is what is stipulated in Article 4 of the law as “No request or plea in which the owner does not have an existing legitimate interest shall not be accepted, however, the potential interest is sufficient if the purpose of the precautionary request is to ward off imminent harm, or to document a right for which there is fear of losing its evidence when disputed.” If it appears to the judge that the claim is fictitious, he should reject it, and he shall have the right to pass judgment on the plaintiff, as guilty" and the claim is submitted to the court in the form of a request, and the request shall contain a specific allegation, and the plaintiff in it shall request legal protection to prevent the assault that will occur or befall his right, or protect him, or protect a regular position against his opponent) (Fahmy, 1986). This request is either original or incidental.

The original request is what the plaintiff initially stated in his claim statement. (Article 79 of the executive regulation of Saudi Sharia Procedural Regulations). The incidental request: is what is submitted and stipulated by the plaintiff, the defendant or others during the course of the litigation, and it is related to the original request. (Al-Khanin, 2003)

Here, plea is the claim filed by the defendant against the plaintiff’s claim, it is either related to the origin of the claimed right, so it is objective, or it is related to the procedures of the conduct of the litigation, so it is formal or procedural, or it is a defense of non-admissibility in the event that a condition of accepting the claim. (Al-Wafa, 1980).

The interest mentioned in this article is: the interest that the opponent may obtain from his claim by preventing the damage for his right, or protecting a legal position; because this interest is attributed to its owner, and is exclusive to it only, without anyone else, whether he is a plaintiff or a defendant (Article 4 of the executive regulation of Saudi Sharia Procedural Regulations)

Such interest is a condition for accepting any request, plea, or appeal. In the judgment of the Board of Grievances, it states, “It is decided to judge that to accept the claim, whatever its type, the capacity and interest in the parties to it shall be present…. It is imperative that the party before which the dispute is presented to reject the same.” (Judgment No. 119/T/3 of 1408 AH in Case No. 1199/1/Q of 1405 AH)

From this judgment, it becomes clear to us that the condition of interest and capacity is part of the public order, and the judiciary may not accept hearing the claim automatically, in addition to the idea that the condition of interest shall have a set of characteristics, including the following dimensions:

First: That the Interest Exists

In principle, the interest shall be present in the dispute, and the interest shall be proofed in the sense that the interest exists during the assault on the right of the plaintiff, and by reference to the law, we find that the potential interest is excluded if its purpose is precaution to ward off potential harm, that is, the assault on the right has not yet occurred, but is likely to occur (Article 4 of the executive regulation of Saudi Sharia Procedural Regulations) With the existence of significant possibilities and evidence indicating the imminence of the assault or the authentication of a right, it is feared that its evidence will disappear in the dispute without requiring the presence of the other opponent (Article 4/3 of the executive regulation of Saudi Sharia Procedural Regulations), and for example, the request for inspection to prove the state of the incident that is likely to become a subject of dispute before the judiciary in the future (Article 4/3 of the executive regulation of Saudi Sharia Procedural Regulations).

On the other hand, we find that the Moroccan legislator has adopted the principle of protecting the right from future or current harm, which has not yet occurred, based on Article 149 of the Moroccan Code of Civil Procedure by giving authority to the President of the Court of First Instance as a judge in urgent matters and within the framework of orders based on a request to give order to the judicial commissioner to go out to the spot and make an abstract inspection; In order to put the court in the picture about the current status of the right, and this matter comes from the request of the plaintiff who fears that the defendant will change the origin of the right, whether it is real estate, a company or any movable property, by disposing of it either by selling or changing its features (Al Sharkawi, 2021).

Second: The Interest Shall be Legitimate

Legality means the legalization of this plea in specific and limited cases of infringement of the interests and rights of the plaintiff in the application, plea or appeal (Al-Khanin, 2003).

In fact, the law does not protect the interest that is banned by the legislator, so the interest in the claim is not taken into account if it is not legitimate, or it is in fact permissible, but banned by the legislator, as the ruler prevented hearing a specific claim, for several considerations such as: Not hearing the claim against government agencies except with a special permission from the Supreme Court (Article 25 of the Saudi Sharia Procedural Regulations), if the Supreme Court refuses to hear the claim, then this means preventing the plaintiff from using his right to file his claim, even if he has an existing and legitimate interest, and therefore the element of interest is considered if it is not protected by the legislator and the law together, as it is not counted, not to be considered and shall be rejected. The legislator also attached the vexatious claims, as it is a claim filed by its owner without a right to claim a subsequent order in it.

The law's requirement of capacity in the parties to the claim instead of personal interest (Article 72 of the Saudi Sharia Procedural Regulations) was adopted based on the opinion that the concept of interest and capacity are not identical (Ahmed, 2002).

The condition of capacity in the plaintiff means the authority by which a person exercises his claim before the judiciary, and in principle it belongs to the owner of the claimed right or to the one who received the right on his behalf by any way from the side of acquiring rights, such as the guardian and custodian in relation to a minor or incompetent person.

It also for the representative, a legal person, such as the head of the company, or the right representative, such as an agent or a lawyer (Al-Ashmawi, 1957), "meaning that the case is submitted, as well as plea by those who have the right or who acts on behalf of them." For the adjective in the defendant, it means that he is the person from whom the right is sought (Al Sharkawi, 2021).

The law permitted the filing of a claim by at least three citizens in the public interest, if there is no official body responsible for these interests in the country, but if there is a competent official body, the case shall be heard only by the same (Article 5 of the Saudi Sharia Procedural Regulations).

The law differentiated between the adjective as a condition for accepting the claim in the event of filing the claim, as its lack entails the non-admissibility of the case, and its demise during the course of the litigation (Article 72 the Saudi Sharia Procedural Regulations), which results in the interruption of the litigation; To give the other party an opportunity to do what can be proofed within a month, provided that the claim is not ready for judgment, and if it is prepared, the litigation will not be interrupted and the reason for that is the lack of verification of the existence of the interest and the lack of interest behind its absence after it has been prepared for judgment.

Upon the interruption of the litigation and the expiry of the deadline by not reviewing the opponents, the judge shall have the right to address the judgment of non-admissibility, since the capacity is related to the Public Order, where the owner shall have the right to adhere to it, just as the judge shall have the right to address it at any stage of the claim (Article 72 and 84 of the law and article 83 of the executive regulations).

The legislator stipulated eligibility as a condition for accepting the claim, and this is reflected in Article 72 of the Saudi Sharia Procedural Regulations, in order for there to be parity between the parties to the case (Ibn Qudama, 2005).

The lack of capacity upon the time of filing the claim is ruled not to be accepted based on the context of Article 82 of the law, and when it is lost during the course of the litigation, it results in the interruption of the litigation unless the claim is ready for judgment on the subject, and if it becomes ready, the litigation will not be interrupted, for the absence of interest and the lack of interest behind its denial, after being ready to be considered.

After the interruption of the litigation, the judge gives a one-month grace period (and this is what was stated in Article 84 in its first paragraph of the Executive Regulations). If the parties do not review, the ruling of non-admissibility is addressed, and that the eligibility condition is related to the Public Order, so the litigant shall have the right to adhere to it, and the judge shall have the right at any stage of the litigation to consider the same (Article 72 of the Saudi Sharia Procedural Regulations).

In my point of view, I see that it is possible to express the absence of the adjective by the failure of the legal or legitimate interest condition; The fact that the law stipulates the necessity of the availability of the capacity condition, in other words I say that the absence of capacity means the absence of the condition of legitimate interest, since the law stipulates the necessity of the requirement of capacity as a prerequisite.

There are other conditions that the law did not address, which is what is expressed in the negative conditions that If one of them is fulfilled, then the case is not acceptable, and the regulator is satisfied with the text in Article 72 by saying “...or for any other reason” such as the case has been previously decided, or conciliation, waiver, or agreement on arbitration (Hashem, 1409 AH).

These terms can be merged into an interest clause; because there is no benefit in filing a case that has already been judged or so, and the existence of those conditions or some of them means at the same time the absence of the conditional interest.

Second Paragraph: Plea of Non-admissibility in the Event of the Existence of the Arbitration Clause.

When one of the parties breaches his commitment to the arbitration agreement and submits his claim to the court regarding the dispute, the other person shall have the right to plea this claim in the presence of the prior arbitration agreement, and to request the court not to accept for the existence of a previous agreement, which is the arbitration agreement. Here the question arises about which judicial stages can be pleaded with the arbitration agreement. Is it permissible for the court to consider the claim in implementation of the provisions of the arbitration agreement on its own? In addition, what is the nature of such plea?

The defendant shall plea for the existence of arbitration before it enters into the substance of the claim, and therefore his silence about raising this plea is considered a plea from him and a waiver of his right not to resort to the judiciary, and expresses his implicit will to accept the dismissal of this obligation.

The defendant shall have the right to invoke the arbitration clause before entering into the substance of the claim, and if the defendant does not submit this plea before entering into the merits of the case, the defendant’s right to it shall be extinguished, since it is an obligation not related to a Public Order, therefore the court does not rule it on its own, but rather it is a right held by one of the opponents (Shafiq, 1997). Therefore, the Board of Grievances ruled similarly and said, “if the defendant pleads before any request or defense in the claim), and since the defendant’s attorney adhered to this agreement before making any defense or request in the claim. Therefore, the circuit goes to the ruling that it is not permissible to consider the claim exists as an arbitration agreement” (3^rd commercial department No.7 of 1441 AH, unpublished).

Here, the doctrinal disagreement appears about determining the legal nature of the plea in the presence of the arbitration clause, is it a plea of non-admissibility, is it a plea of lack of jurisdiction, or is it a plea ofinvalidity of a judicial claim? The French Council of State held that this plea is related to the lack of specific jurisdiction, and that the court’s lack of jurisdiction is related to the Public Order; therefore, the court may, on its own, consider the same.

Another part see that the Plea of Non-admissibility aimed at finding a temporary impediment from deciding the claim before the judiciary, and with this impediment the two parties are restricted in resorting to the judiciary and this claim becomes inadmissible before the judiciary because there is an impediment to its admissibility (the arbitration agreement) (Abdel-Tawab, 2008).

Other legal scholars hold that this plea invalidates the judicial claim based on the inability of the requests contained in the claim to be the subject of this claim and based on the requirement of the arbitration agreement.

This is a formal difference. Because there is a similarity in the elements of the law to which plea is not subject, and that this disagreement is formal about the form in which it is formulated or about the terminology

Jurisprudence of the judiciary has been repeated about considering this plea of non-admissibility, as stated by Omar (2004), “The most correct opinion that the jurisprudence and the judiciary adopted is that the plea of invoking the arbitration clause is the plea of not accepting the claim.” This plea, if true, entails the court ruling dismissing the case, referring it to arbitration and halting its procedures, and some laws allow the court to examine the arbitration agreement to ascertain its validity or invalidity (Fathi Wali, 2007). The court to which a dispute in which there is an arbitration agreement is submitted must rule that the case may not be considered" (Arbitration law M/34 of 1433 AH).

It was stated in a judgment issued by the Board of Grievances as follows: “. Since the jurisdiction to consider the claim is a preliminary issue that shall be addressed before being considered, as the circuit may not consider the subject matter of the case before it is ascertained that it has jurisdiction over it as stated in the rules of jurisdiction issued in that regard. (Judgment No. 6/T/3 of 1408 AH in Case No. 506/1/Q of 1406 AH).

I see that plea with the presence of the arbitration clause is a Plea of Non-admissibility; because the defendant raises this plea, alerting the court to the existence of the arbitration clause, and thus urging it not to accept the case and not being heard; because the arbitration clause grants jurisdiction in the case to the arbitral tribunal and deprives the court of considering the case whenever the defendant does not satisfy the existence of the arbitration clause.

In case of his silence, it is considered tacit admissibility of the waiver of the arbitration clause, and therefore the court becomes the competent authority in the case and the arbitral tribunal is prevented from deciding on the matter.

The same approach was adopted by the ruling of the Board of Grievances, stating ".., and since the issue of jurisdiction is one of the primary issues that the circuit shall examine before considering the subject matter of the claim" (Judgment No. 22/D/1/1 of 1417 AH in Case No. 1319/2/Q of 1417 AH).

Conclusion

Upon the completion of the research and focusing on the subject of Plea of Non-admissibility in the Saudi law as a theoretical and applied study, I would like to present in conclusion a set of findings in addition to some recommendations.

Results

Through this research, I reached a set of results that can be summarized as follows:

1. Islamic jurisprudence defines the plea of non-admissibility by many names, including plea litigation, non-hearing, and non-admissibility.

2. Plea of non-admissibility is one of the pleas that are found in Islamic jurisprudence and not in French jurisprudence as seen by some legal scholars.

3. Plea of non-admissibility is independent plea, and has a special nature, which distinguishes it from the rest of the objective and formal pleas.

4. This type of pleas goes directly to the opponent's authority in the litigation, that is, it aims to deny the opponent's right to litigation and resort to the court.

5. Plea of non-admissibility can be presented at any stage of the invitation, and before any degree of litigation, and this does not make it a permanent public order, the issue of public order is subject to the reason of plea itself, if the reason is lack of litigation, then it is considered here from public order, but if the reason was a prior ruling on the subject matter of the case, it is not considered public order

6. Plea of Non-admissibility In some of its cases it is a claim in itself and in some other cases it is not.

7. There is a defect in the claim procedures that results in nullity, not non-admissibility.

8. The idea of public order in the Saudi sharia procedural law and Islamic jurisprudence alike.

RECOMMENDATIONS

A set of recommendations can be proposed through this research, which is summarized as follows:

1. Inviting scholars to delve into the subject of pleas in general and the Plea ofNon-admissibility in particular; Due to the scarcity of research that deals with it independently and extensively.

2. Promoting judges by holding educational courses by the Ministry of Justice to delve deeper into the field of Plea of Non-admissibility, and other similar pleas.

3. Amending the sharia procedural regulations by adding a set of articles related to simplifying the procedures of the Plea of Non-admissibility.

4. An opponent may abuse the Plea of Non-admissibility by delaying it, and this may constitute an abuse of the right and a delay in litigation, especially since the law grants the right to a person to express a Plea of Non-admissibility at any stage of litigation, so the opponent shall The organizer shall have the right to change this matter by making him put it first in the dispute.

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