Kuwait Court of Cassation principle number 151

Summary: - The permissibility of an appeal in cassation against final judgments, whatever the dispute determined or the court that issued them. Among its instances. Where a dispute is determined contrary to another judgment previously issued between the same parties and having acquired the force of res judicata. The condition for this. Article 152/final paragraph of the Code of Civil and Commercial Procedure. - Grounds of nullity relating to procedures preceding an auction sale. The legislature divided them into 2 categories: the first concerns nullity of the notice of sale, such as nullity in publication procedures. The second concerns nullity of other procedures preceding the sale hearing, and grounds of objection to the conditions of sale are subject to the same rule. The sales judge has jurisdiction over the first category, and the court competent to hear enforcement disputes has jurisdiction over the second category. The legislature prescribed a means in this case to inform the sales judge that such an action has been brought. The reason for this. To enable him to act in due time to avert a sale that may ultimately be annulled. How this is done. The person bringing that action must deposit a copy of its statement of claim with the registry of the court to which the sales judge belongs at least 3 days before the sale hearing and request therein a judgment staying the sale. The seriousness of the grounds in dispute being apparent to the sales judge from the face of the documents. Its implication. His ruling granting the claimant’s request to stay the sale until the competent court determines the merits of the dispute. Establishment that these grounds lack seriousness. Its effect. His ruling that the sale continue. His judgment in the first category may not be challenged by any means, and his judgment in the second category, in either case, is an interim judgment issued by him in his capacity as a judge of urgent matters, which may not be challenged, contrary to the general rule governing adjudication of urgent matters. - Judgments issued by the urgent-matters judiciary. Their res judicata effect is temporary. The reason for this. They examine the dispute from the face of the papers without prejudicing the right. Its implication. The trial court is not bound by them when determining the substantive right. - The provisional dispute determined by the urgent judgment. It may not be raised anew. The condition for this. The parties’ position and the circumstances culminating in the judgment must remain the very same, without any change having occurred. The reason for this. The urgent judgment places both parties to the proceedings in a settled position that must be respected by virtue of res judicata in relation to the same circumstances that necessitated it and the same subject matter examined in the judgment previously issued. Example. - The sales judge’s ruling, in his capacity as a judge of urgent matters, dismissing the objections and continuing the procedures by a final judgment having the force of res judicata. The nature of this judgment. It is not altered by the court’s use of the expression (the Court decided) instead of (the Court adjudged). The reason: what matters is the true factual position and what the judgment ruled, not how the court described it. Submission of the same statement of objections to the same circuit. Its ruling admitting the objections and staying the procedures constitutes a determination of the statement contrary to a previous judgment issued between the same parties, in the same circumstances, and having the force of res judicata. Its implication: an appeal against it by way of cassation is permissible. Rule: It is established in the jurisprudence of this Court that the provision in the final paragraph of Article 152 of the Code of Civil and Commercial Procedure that “The parties may also appeal in cassation against any final judgment—whatever the court that issued it—which determined a dispute contrary to another judgment previously issued between the same parties and having acquired the force of res judicata” indicates that the legislature permitted appeals by way of cassation against final judgments—whatever the court that issued them—if they determined a dispute contrary to another judgment previously issued between the same parties and having acquired the force of res judicata, whenever the issue is the same in both actions, in that it was a matter of debate between the parties in the first action, its true position was settled between them by the first judgment, and it is itself the basis of what either party claims against the other in the second action. An appeal against it by way of cassation is then permissible, whatever the dispute it determined or the court that issued it. It is also established that the provision in Article 271 of the Code of Civil and Commercial Procedure that “Interested persons must raise grounds of nullity in the notice prescribed in Articles 266 and 268 by a statement lodged with the registry of the Court of First Instance at least 3 days before the hearing fixed for the sale, failing which the right thereto shall lapse. The sales judge shall rule on the aforementioned grounds of nullity on the day fixed for the sale, before bidding opens, and his judgment may not be challenged by any means. If he rules that the notice procedures are void, he shall adjourn the sale to a day he specifies and order those procedures to be repeated. If he rules dismissing the application for nullity, he shall order bidding to proceed immediately. The debtor, possessor, real surety and creditors referred to in Article (265/2) must also raise other grounds of nullity relating to procedures preceding the sale hearing, as well as grounds of objection to the conditions of sale, at least 10 days before that hearing falls due, failing which the right to raise them shall lapse. This shall be by an action brought in accordance with the ordinary procedures before the competent court. The claimant must deposit a copy of its statement of claim with the registry of the Court of First Instance at least 3 days before the hearing fixed for the sale. The sales judge—in his capacity as a judge of urgent matters—shall, upon the application of the claimant in the aforementioned action, rule to stay the sale or continue it according to his assessment of the seriousness or lack of seriousness of those grounds, and his judgment shall not be subject to challenge. If he rules that the sale continue, he shall order bidding to proceed immediately” indicates—as stated in the explanatory memorandum to the Law—that the legislature divided grounds of nullity relating to procedures preceding the sale into 2 categories: one concerning nullity of the notice of sale, such as nullity in publication procedures, and another concerning nullity of other procedures preceding the sale hearing, with grounds of objection to the conditions of sale being subject to the same rule. It assigned the first category to the jurisdiction of the sales judge. As for the second category, concerning nullity of procedures preceding the sale hearing as well as grounds of objection to the conditions of sale, the legislature assigned jurisdiction to hear them to the court competent to hear enforcement disputes and prescribed a means in this case to inform the sales judge that such an action has been brought, to enable him to act in due time to avert a sale that may ultimately be annulled. The legislature required the person bringing that action to deposit a copy of its statement of claim with the registry of the court to which the sales judge belongs at least 3 days before the sale hearing and to request therein a judgment staying the sale. Whenever the seriousness of the grounds in dispute becomes apparent to the sales judge—from the face of the documents—he shall rule to grant the claimant’s request to stay the sale until the competent court determines the merits of the dispute. If, however, it becomes apparent to him that these grounds lack seriousness, he shall rule that the sale continue. His judgment in the first category may not be challenged by any means. His judgment in the second category—in either case—is an interim judgment issued by him in his capacity as a judge of urgent matters, but, contrary to the general rule governing adjudication of urgent matters, it may not be challenged. It is also established that the general rule concerning judgments issued by the urgent-matters judiciary is that they have temporary res judicata effect, since they examine the dispute from the face of the papers without prejudicing the right. Consequently, they do not bind the trial court when it determines the substantive right. However, this does not mean that the provisional dispute determined by the urgent judgment may be raised anew whenever the parties’ position and the circumstances culminating in the judgment remain the very same, without any change having occurred. In that case, the urgent judgment places both parties to the proceedings in a settled position that must be respected by virtue of res judicata in relation to the same circumstances that necessitated it and the same subject matter examined in the judgment previously issued. That being so, and as the papers establish that the respondent, in his capacity, submitted on 2/3/2014 a statement of objections to the procedures preceding the sale hearing, requesting therein, principally, a judgment terminating the sale procedures and, alternatively, a stay of the sale procedures until Objections Action No. 1380 of 2014, Commercial, Court of First Instance, was determined by a final and irrevocable judgment, the sales judge, in his capacity as a judge of urgent matters, ruled to dismiss the objections and continue the procedures by a final judgment having the force of res judicata. This is not altered by the court’s use of the expression “the Court decided” rather than “the Court adjudged”, since what matters is the true factual position and what the judgment ruled, not how the court described it. Consequently, what the court concluded in this respect is, in truth, an adjudication. Since the respondent, in his capacity, submitted on 27/4/2014 the same statement of objections to the same circuit, which ruled at the hearing of 22/5/2014 that the objection was admissible in form and, on the merits, that the procedures be stayed until Action No. 1380 of 2014, Commercial, Court of First Instance, was determined by a final judgment, the challenged judgment determined the latter statement of objections contrary to a preceding judgment issued between the same parties, in the same circumstances, and having the force of res judicata. Consequently, it may be challenged by way of cassation, and the plea raised by the respondent, in his capacity, that the appeal is impermissible is unfounded.