Kuwait Court of Cassation principle number 215

Summary: - No judges other than those who heard the pleadings may participate in deliberations. The judges who participated in deliberations must attend the pronouncement of the judgment. An impediment arising for one of them. Its effect: he must sign the draft judgment. - Judgments of the Court of Appeal. Their issuance by 3 counsellors. Article 9 of the Judicial Organization Law. Contravention thereof. Its consequence: nullity of the judgment. The reason: its connection with the foundation of the judicial system. - The judgment must contain the particulars specified in Article 116 of the Code of Procedure, including the names of the judges who heard the pleadings and participated in deliberations and in rendering the judgment in the case. - The expression “the judges who rendered the judgment.” Its meaning: the judges who adjudicated the case, not those who attended its pronouncement. The determining criterion: the particulars set out in the original copy of the judgment and the hearing minutes. Reliance is placed on the original copy signed by the presiding judge and the clerk. The reason: it is kept in the case file and constitutes the reference for issuing executory copies and other copies. Such nullity concerns public order, and the Court of Cassation may rule upon it of its own motion. An example of the nullity of a judgment rendered by the Court of Appeal because its draft was signed by the panel in an illegible signature form from which their identities could not be ascertained, and the original copy of the judgment failed to specify the names of the 3 counsellors who participated in deliberations and signed its draft from among the 4 counsellors whose attendance was recorded in the minutes of the final pleading hearing. Rule: It is established—in the jurisprudence of this Court—that Article 112 of the Code 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 the judgment; if an impediment arises for one of them, he must have signed its draft. The provision of Article 6 of the Judicial Organization Law that “judgments of the Court of Appeal shall be rendered by 3 counsellors” means that this concerns the foundation of the judicial system, and its contravention therefore entails nullity of the judgment. Article 116 of the Code of Procedure requires the judgment to contain particulars specified therein, including the names of the judges who heard the pleadings and participated in deliberations and in rendering the judgment in the case. The expression “the judges who rendered the judgment” means the judges who adjudicated the case, not the judges who attended the pronouncement of the judgment. The determining criterion in this regard is reliance on the particulars set out in the original copy of the judgment, supplemented by what is stated in the hearing minutes in that respect. Reliance is also placed on the original copy signed by the presiding judge and the clerk because it is kept in the case file and constitutes the reference for issuing executory copies and other copies. This is a nullity connected with the foundation of the judicial system and concerning public order, upon which the court rules of its own motion. That being so, and whereas the minutes of the final pleading hearing before the Court of Appeal, dated 24/9/2013, establish that the panel which heard the pleadings consisted of 4 counsellors, presided over by Counsellor Ahmed Ezzat Abu Zeid and comprising Counsellors Sultan Nuh Boursli, Abdul Hakim Al-Furai and Adel Mohammed Al-Shahawi; at that hearing the court decided to reserve the appeal for judgment at the hearing of 17/10/2013, at which the challenged judgment was rendered; and whereas the original copy of the judgment establishes that the panel which pronounced it was presided over by Counsellor Ahmed Ezzat Abu Zeid and comprised Counsellors Sultan Nuh Boursli and Adel Mohammed Al-Shahawi; and whereas the counsellors' signatures on the draft of the challenged judgment were in an illegible signature form from which their identities could not be ascertained; and whereas the original copy of the challenged judgment failed to specify the names of the 3 counsellors who participated in deliberations and signed its draft from among the 4 counsellors whose attendance was recorded in the minutes of the aforementioned final pleading hearing, this is an essential particular whose omission from the original copy of the judgment—which is the witness to and evidence of its existence—means that the judgment does not itself demonstrate the fulfilment of the conditions for its validity, thereby rendering it void. This is not affected by the existence of 2 correction marks against the names of each of Counsellors / Abdul Hakim Al-Furai and Adel Al-Shahawi in the minutes of that hearing, since the hearing minutes did not state who replaced them at that hearing. Moreover, saying that the panel which heard the pleadings and participated in deliberations consisted of only 2 members would lead to the nullity of the judgment. This vitiates the challenged judgment and necessitates its cassation without any need to examine the grounds of challenge.