Kuwait Court of Cassation principle number 137

Summary: - No judges other than those who heard the pleadings may participate in deliberations. Judges who participated in deliberations. Their attendance at the pronouncement of judgment is mandatory. An impediment affecting one of them. Effect. He must have signed the draft judgment. - Court of Appeal judgments. Issued by three counselors. Article 9 of the Law on the Organization of the Judiciary. Contravention. Implication. Nullity of the judgment. Reason. It concerns the foundations of the judicial system. - A judgment must contain the particulars specified in Article 116 of the Law of Procedure, including the names of the judges who heard the pleadings and participated in deliberations and issuance of the judgment in the action. - The expression “the judges who issued the judgment.” Meaning. The judges who decided the action, not those who attended its pronouncement. Criterion. The particulars stated in the original copy of the judgment and the hearing minutes. The controlling document is the original copy signed by the presiding judge and the clerk. Reason. It is retained in the case file and serves as the reference for obtaining enforceable copies and other copies. Such nullity relates to public policy, and the Court of Cassation may declare it of its own motion. Example of nullity of a judgment issued by the Court of Appeal because its draft was signed by the panel in an illegible stylized form from which their identities could not be ascertained, and the original copy of the judgment failed to specify the names of the three counselors who participated in deliberations and signed its draft from among the four counselors recorded as attending in the minutes of the final pleading hearing. Rule: It is established in this Court’s case law that Article 112 of the Law of Procedure provides that no judges other than those who heard the pleadings may participate in deliberations, and that the judges who participated in deliberations must attend the pronouncement of judgment. If an impediment affects one of them, he must have signed its draft. Article Six of the Law on the Organization of the Judiciary provides that "Court of Appeal judgments shall be issued by three counselors." This means that the matter concerns the foundations of the judicial system, and contravention results in nullity of the judgment. Article 116 of the Law of Procedure requires a judgment to contain specified particulars, including the names of the judges who heard the pleadings and participated in deliberations and issuance of the judgment in the action. The expression “the judges who issued the judgment” means the judges who decided the action, not those who attended the pronouncement of judgment. The criterion in this respect is reliance on the particulars set out in the original copy of the judgment, supplemented by what appears in the hearing minutes concerning the matter. Moreover, the controlling document is the original copy signed by the presiding judge and the clerk, because it is retained in the case file and serves as the reference for obtaining enforceable copies and other copies. This is a nullity concerning the foundations of the judicial system and public policy, which the Court declares of its own motion. That being so, the minutes of the final pleading hearing before the Court of Appeal, dated 24/9/2013, establish that the panel that heard the pleadings consisted of four counselors, presided over by Counselor Ahmad ....... and comprising Counselors Sultan ......., Abd ........., and Adel ......... . At that hearing, the Court reserved the appeal for judgment at the hearing of 17/10/2013, at which the challenged judgment was issued. The original copy of the judgment establishes that the panel that pronounced it was presided over by Counselor Ahmad ....... and comprised Counselors Sultan ........ and Adel ...... . The counselors’ signatures on the draft of the challenged judgment were in an illegible stylized form from which their identities could not be ascertained. Since the original copy of the challenged judgment failed to specify the names of the three counselors who participated in deliberations and signed its draft from among the four counselors recorded as attending in the minutes of the aforementioned final pleading hearing, and this is an essential particular whose omission from the original copy of the judgment—which bears witness to and proves it—means that the judgment does not itself demonstrate that all the conditions for its validity have been fulfilled, rendering it void. This is not affected by the presence of two correction marks against the names of Counselors / Abd al-Hakim al-Furai and Adel al-Shahawi in the minutes of that hearing, since the minutes did not state who replaced them at that hearing. Furthermore, stating that the panel that heard the pleadings and participated in deliberations consisted of only two members would lead to nullity of the judgment. This vitiates the challenged judgment and requires its cassation without the need to examine the grounds of appeal.