Kuwait Court of Cassation principle number 10

Summary: - The provision in Article 53 of the Law of Evidence concerning res judicata. It constitutes a departure from the general rule that gives the trial court full authority to ascertain the facts of the case, assess and weigh its evidence, accept what it finds convincing, and discard the rest on reasonable grounds, including evidence previously presented in an earlier action, because the assessment of evidence does not, in itself, acquire res judicata effect. Consequence thereof. The court is bound—whatever its conviction—not to decide an action contrary to another judgment previously rendered between the same litigants and having acquired the force of res judicata. Reason therefor. The presumption of the correctness of the judgment, to protect the judicial system and prevent conflicting judgments and the perpetuation of disputes. - Res judicata. Its close connection with public policy. Reason therefor. - The issuance of 2 contradictory judgments in the same dispute and between the same litigants. Consequence thereof. Recourse must be had to the rules of Islamic jurisprudence most consistent with the country's circumstances and interests, without adherence to a particular school or confinement to its preponderant opinions. Basis thereof. Article 1/2 of the Civil Code and the Explanatory Memorandum to the Civil Code. Effect thereof. When 2 equal things contradict each other, they both fall and cancel each other out, and recourse must be had to the general rule by restoring the trial court's authority to determine the dispute in light of the evidence presented. Reason therefor. To achieve justice without being bound by either of those 2 judgments. There is no basis for the view that recognizes the earlier judgment on the assertion that it takes precedence because it did not contradict another, nor for recognizing the later judgment because it entails the judgment creditor's relinquishment of his earlier right. The judge may discard both and revert to the general rule by investigating the merits of the case in light of the evidence presented. - Nonexistence of a judgment. Its condition. Its being devoid of its essential elements. Instances thereof. Its issuance by an improperly constituted court, by a person who is not a judge, or by a judge lacking jurisdiction; or its concerning a matter of status and contradicting a text in the Qur’an or the Sunnah, or contradicting consensus, or its issuance in proceedings that were not duly constituted. An example of a valid judgment in which the trial court declined to recognize the res judicata effect of 2 contradictory irrevocable judgments and determined the merits of the action in light of the evidence and documents presented to it. Rule: The provision in Article 53 of Decree-Law No. 39 of 1980 concerning Evidence in Civil and Commercial Matters that: "Judgments that have acquired res judicata effect shall be conclusive as to the matters in dispute that they have determined, and no evidence rebutting this presumption may be admitted. However, such judgments shall have this effect only in a dispute arising between the same litigants, without any change in their capacities, and concerning the same right in subject matter and cause. The court shall apply this effect of its own motion." constitutes a departure from the general rule giving the trial court full authority to ascertain the facts of the case, assess and weigh its evidence, then accept what it finds convincing and discard the rest on reasonable grounds, including evidence previously presented in an earlier action, because the assessment of evidence does not, in itself, acquire res judicata effect. However, the provision binds the court—whatever its conviction—not to decide an action contrary to another judgment previously rendered between the same litigants and having acquired the force of res judicata. This is to protect the judicial system and prevent conflicting judgments and the renewal and perpetuation of disputes, not because a judgment having the force of res judicata is necessarily correct, since judges lack infallibility, being in this respect like all human beings. Nevertheless, the legislature made the presumption of correctness of a judge's judgment absolute, in the interests of the proper administration of justice and to avoid perpetuating litigation. The Explanatory Memorandum to the Law of Evidence states that "res judicata is closely connected with public policy because it rests upon a legal assumption of the absolute correctness of judgments, an assumption dictated by the public interest to ensure the proper administration of justice, secure the stability of rights for their holders, and prevent the futile renewal of disputes concerning them." This assumption is based on a conclusive presumption whose import may not be rebutted by any contrary evidence, even if that evidence is an admission or an oath. All this is to protect the judicial system and prevent conflicting judgments, matters that are imperative even if they depart from justice in a particular dispute. However, where the original purpose is defeated by the issuance of 2 contradictory judgments in the same dispute and between the same litigants, and in the absence of any legislative or customary rule governing that situation, the second paragraph of Article 1 of the Civil Code requires recourse to the rules of Islamic jurisprudence most consistent with the country's circumstances and interests, without adherence to a particular school or confinement to its preponderant opinions—as stated in the Explanatory Memorandum to the Civil Code. Since it is among the principles of Islamic Sharia and the rules of Islamic jurisprudence that, when 2 equal things contradict each other, they both fall and cancel each other out, recourse must be had to the general rule by restoring the trial court's authority to determine the dispute in light of the evidence presented, to achieve justice without being bound by either of those 2 judgments. Accordingly, there is no basis for the view recognizing the earlier judgment on the assertion that it takes precedence because it did not contradict another, nor for recognizing the later judgment because it entails the judgment creditor's relinquishment of his earlier right. Rather, the preferable course is to discard both and revert to the general rule whereby the judge investigates the merits of the case in light of the evidence presented. It is established that a judgment is nonexistent only if it is devoid of its essential elements, as where it is issued by an improperly constituted court, by a person who is not a judge, or by a judge lacking jurisdiction; or concerns a matter of personal status and contradicts a text in the Qur’an or the Sunnah, or contradicts consensus, or is issued in proceedings that were not duly constituted. That being so, the challenged judgment based its rejection of the appellant's plea that the action could not be heard because it had previously been determined in Action 2133 of 2004, Commercial Civil, Plenary, Government, on its conclusion from the papers that the judgment relied upon—even though it had become final and irrevocable—had no res judicata effect in the present dispute, despite identity of parties, subject matter, and cause, because it contradicted and conflicted with the judgment rendered in Action No. 1518 of 2010, Commercial and Civil, Plenary, Government, which had also become final and irrevocable. The first judgment relied upon and the judgment rendered in Action No. 1216 of 2011, Commercial and Civil, Plenary, Government, which had become final and irrevocable and ruled that the action could not be heard because it had previously been determined in Action No. 2133 of 2004, Commercial Civil, Plenary, Government, which rejected the respondent's claim to sole entitlement, to the exclusion of the other heirs, to the compensation awarded in respect of sketch plan No. 46/74, on the grounds inseparably connected with its operative part that no effect should be given to the inheritance withdrawal agreement No. 173, Volume/1, dated 1/3/1970, and that compensation should be distributed among all the heirs according to their Sharia shares; whereas the second judgment, No. 1518 of 2010, Commercial and Civil, Plenary, Government, also final and irrevocable, dismissed the appellant's action seeking the compensation due to him for the land under deed No. 46/74, on the basis of the binding effect of inheritance withdrawal agreement No. 173, Volume/1, dated 1/3/1970, and that he was entitled, in the estate of his father, Sheikh ...., only to what was stated in the inheritance withdrawal agreement, and had no right to anything else, whether mentioned in the inheritance withdrawal agreement or not. In view of the conflict and contradiction between the 2 aforementioned judgments concerning the binding effect of the inheritance withdrawal agreement dated 1/3/1970 and whether or not it covered the compensation awarded in respect of deed No. 46/74, the challenged judgment discarded the res judicata effect of each judgment and proceeded to determine the merits of the dispute in light of the evidence and documents presented. Since the judgment's conclusion was reasonable, had an established basis in the papers, and rested on correct legal and factual determinations, the first limb of the challenge to it is unfounded. The second limb of the challenge, concerning the nonexistence of Judgment No. 1518 of 2010, Commercial, Plenary, Government, for contravening the provisions of Islamic Sharia, is incorrect, since that judgment was issued with all its essential elements and conditions of validity satisfied and contains nothing contrary to the provisions of Islamic Sharia. Accordingly, the challenge on this ground is inadmissible.