Kuwait Court of Cassation principle number 217

Summary: - The person against whom enforcement is directed must be the judgment debtor. Verification of the identity of the person against whom enforcement is sought. This falls upon the applicant for enforcement. The injured party’s entitlement to compensation for the damage sustained by the person against whom enforcement is sought if it is established that he is not the judgment debtor, provided that the elements of liability are satisfied. Reason: enforcement procedures are judicial procedures falling within abuse of the right to litigate. - The appellant’s reliance before the court of the merits on a material defense, namely: the existence of the element of fault giving rise to liability on the part of the first respondent in his capacity, owing to his lack of any right to enforce against the appellant’s assets and his request to attach them when the settlement agreement did not permit him to do so. The challenged judgment’s failure to respond to it with specific reasons, merely stating that the first respondent exercised his legitimate right to attach the appellant’s properties and balances after he had—in his view—grounds justifying its imposition, without his conduct being characterized by recklessness, haste or lack of precaution, and taking the Enforcement Department’s approval of the attachment as evidence thereof, in a manner that does not address the appellant’s defense. A defect requiring its cassation. Reason. An example of compensating the appellant for moral damage as a result of an execution attachment being imposed on his assets without right, conclusively establishing the element of fault giving rise to liability, because it contravened the absence of indebtedness stipulated in the settlement agreement forming the basis of the attachment. Rule: It is established—in the jurisprudence of this Court—that whenever litigants raise a material defense capable of changing the view taken of the action, the court must respond to it with specific reasons; otherwise its judgment is vitiated by invalidating deficiency. The law has also laid down several requirements for enforcement, including that the person against whom enforcement is directed must be the judgment debtor. The applicant for enforcement bears the burden of verifying the identity of the person against whom enforcement is sought; otherwise, compensation must be paid to the injured party for the damage sustained by the person against whom enforcement is sought if it becomes apparent that he is not the judgment debtor, whenever the elements of liability are satisfied. Enforcement procedures are judicial procedures falling within abuse of the right to litigate. That being so, and as it is established from the papers—and in accordance with the appellant’s defense before the court of the merits—that the element of fault giving rise to the liability of the first respondent in his capacity is present owing to his lack of any right to enforce against the appellant’s assets and his request to attach them, since the settlement agreement dated 14/6/1988 did not permit him to do so. However, the challenged judgment did not respond to this material defense with specific reasons, merely stating—in rejecting it—that the first respondent exercised his legitimate right to attach the appellant’s properties and balances after he had—in his view—grounds justifying its imposition, without his conduct being characterized by recklessness, haste or lack of precaution, and took the Enforcement Department’s approval of the attachment as evidence thereof. This conclusion reached by the judgment, on which it based its ruling setting aside the judgment appealed against and dismissing the action, does not address the appellant’s aforementioned defense, cannot constitute a response to it, and does not in itself lead to the conclusion reached, which vitiates it and requires its cassation. - Whereas, as to the merits of Civil Appeal 4154 of 2012—which is ready for determination—and for the foregoing reasons, and as it is established from the papers that the appellant in his capacity has no right to enforce against the respondent’s assets because this contravenes the provision of the settlement agreement forming the basis of the attachment that the respondent owes no debt to the appellant—the applicant for enforcement—this conclusively establishes the element of fault giving rise to liability on the part of the latter. As the judgment appealed against based its ruling on requiring the appellant to pay the respondent the amount of five thousand dinars as final compensation for the moral damage sustained by him as a result of the appellant’s fault, it must be affirmed on account of the soundness of the reasons on which it was based.