Kuwait Court of Cassation principle number 16

Summary: - Signing a private instrument by any of the means prescribed by law. Is the true source of conferring evidentiary force upon it. Denial by the person against whom it is invoked of the handwriting, signature, seal or fingerprint attributed to that person on it, and the opposing party’s continued reliance on its significance in the dispute. The court must conduct an investigation by comparison, by hearing witnesses, or by both, in order to ascertain the truth in that regard. - The appellant’s reliance on the significance of the originals of carbon copies of invoices whose value it claims, asserting that they were signed by one of the respondent’s employees, and its request to refer the dispute back to the expert to examine its defence. A material defence. The challenged judgment’s disregard of this defence and reliance on matters that do not constitute a proper response to it. Inadequacy of reasoning requiring its cassation. Rule: The provision in Article 13 of Decree-Law No. 39 of 1980—concerning Evidence in Civil and Commercial Matters—that “A private instrument shall be deemed to have emanated from the person who signed it unless that person expressly denies the handwriting, signature, seal or fingerprint attributed to that person ....,” and in Article 27 thereof that “...... As for a person who denies that a private instrument emanated from that person .... the burden of proving that it emanated from that person rests upon the opposing party .....”, and in Article 28 thereof that “If the person against whom the instrument constitutes evidence denies his handwriting, signature, seal or fingerprint ..... and the other party continues to rely on the instrument, and the instrument is material to the dispute, and the facts and documents of the case are insufficient to form the court’s conviction concerning the authenticity of the handwriting, signature, seal or fingerprint, the court shall order an investigation by comparison, by hearing witnesses, or by both. Indicates that signing a private instrument by any of those aforementioned means is the true source of conferring evidentiary force upon it. If the person against whom the instrument is invoked denies the handwriting, signature, seal or fingerprint attributed to that person on it, and the opposing party continues to rely on its significance in the dispute, the court must—in order to ascertain the truth in that regard—conduct an investigation by comparison, by hearing witnesses, or by both. That being so, the appellant submitted to the expert appointed in the case carbon copies of the invoices whose value it claims. The respondent acknowledged only those signed by a person named “Babu”, stating that he was its employee authorized to sign invoices acknowledging receipt of goods supplied to it. Accordingly, in settling the account between the parties to the litigation, the expert confined himself to the invoices signed by the aforementioned person, excluding the remaining invoices, which it said had been lost in a fire that broke out at its premises, and it requested proof that the respondent had received goods to their value. When his report contained no investigation establishing or negating its entitlement to amounts appearing in invoices signed by someone other than the person named “Babu”, and other amounts for which the invoices proving its supply of goods to their value to the respondent had been lost, it objected to the report before the court hearing the merits at both levels. It relied on the evidentiary force of the original “carbon” invoices it had submitted to the expert, asserting that they were signed by one of the respondent’s employees, and requested that the dispute be referred back for expert examination to investigate this—material—defence, examination of which might change the view taken of the case. However, the challenged judgment disregarded it and based its ruling on that report, whose reasons were inadequate and did not constitute a proper response to that defence. This vitiates the judgment and requires its cassation without any need to examine the remainder of the two grounds of appeal.