Kuwait Court of Cassation principle number 234

Summary: - The provision in Article 53 of the Evidence Law concerning res judicata. It constitutes a departure from the general rule granting the trial court full authority to understand the facts of the case, assess and weigh its evidence, accept what convinces it, and discard the remainder on reasonable grounds, including evidence previously submitted in an earlier action, because the assessment of evidence does not itself acquire res judicata effect. The consequence thereof: the court is obliged—whatever its conviction—not to decide an action contrary to another judgment previously rendered between the same parties and having acquired the force of res judicata. The reason: the presumption of the judgment's correctness, to protect the judicial system and prevent conflicting judgments and the perpetuation of disputes. - Res judicata. Its close connection with public policy. The reason therefor. - Issuance of 2 contradictory judgments in the same dispute and between the same parties. Its consequence: recourse must be had to the rules of Islamic jurisprudence most consistent with the country's realities and interests, without adhering to a particular school or stopping at its predominant opinions. Its basis: Article 1/2, Civil Code, and the Explanatory Memorandum to the Civil Code. Its effect: when 2 equal things contradict each other, they fall and cancel each other out, and the general rule must be restored by restoring the trial court's authority to determine the dispute in light of the evidence submitted. The reason: achieving justice without being bound by either judgment. There is no basis for the view that gives effect to the earlier judgment on the assertion that it takes priority because it did not contradict another, or to the later judgment because it entails the judgment creditor's relinquishment of his earlier right. The judge may discard both and return to the general rule by ascertaining the truth in the action in light of the evidence submitted. - Non-existence of a judgment. Its condition: its being devoid of its fundamental elements. Instances thereof: issuance by an improperly constituted court, by a person who is not considered a judge, or by a judge without jurisdiction; or where it concerns a matter of status and the judgment contradicts a text in the Quran or the Sunnah or contravenes consensus; or issuance in proceedings that were not constituted. An example of a valid judgment in which the trial court declined to give res judicata effect to 2 contradictory irrevocable judgments and adjudicated the merits of the action in light of the evidence and documents submitted to it. Rule: The provision in Article 53 of Decree-Law No. 39 of 1980 concerning Evidence in Civil and Commercial Matters that “Judgments that have acquired res judicata effect shall be authoritative as to the dispute they have determined, and no evidence rebutting this presumption may be admitted. However, those judgments shall have such effect only in a dispute arising between the same parties, without their capacities changing, and concerning the same right in subject matter and cause. The court shall rule on this effect of its own motion” constitutes a departure from the general rule granting the trial court full authority to understand the facts of the case, assess and weigh its evidence, then accept what convinces it and discard the remainder on reasonable grounds, including evidence previously submitted in an earlier action, because the assessment of evidence does not itself acquire res judicata effect. The provision nevertheless obliges the court—whatever its conviction—not to decide an action contrary to another judgment previously rendered between the same parties and having acquired the force of res judicata. This is to protect the judicial system and prevent conflicting judgments and the renewal and perpetuation of disputes, not because a judgment having the force of res judicata is necessarily correct, since judges lack infallibility, being in this respect like all human beings. However, the legislature made the presumption of correctness of a judge's judgment absolute in the interest of the proper administration of justice and to avert the perpetuation of litigation. The Explanatory Memorandum to the Evidence Law states that “res judicata is closely connected with public policy because its foundation is a legal assumption of the absolute correctness of judgments, an assumption dictated by the public interest to guarantee the proper administration of justice, secure the stability of rights for their holders, and prevent futile renewal of disputes concerning them.” This assumption is founded upon a conclusive presumption whose significance cannot be rebutted by any contrary evidence, even if that evidence is an admission or an oath. All this is to protect the judicial system and prevent conflicting judgments, matters that are mandatory even if they depart from justice in a particular dispute. If, however, the original purpose is frustrated by the issuance of 2 contradictory judgments in the same dispute and between the same parties, and given the absence of a rule governing this situation in legislation and custom, the application of paragraph 2 of Article 1 of the Civil Code requires recourse to the rules of Islamic jurisprudence most consistent with the country's realities and interests, without adhering to a particular school or stopping at its predominant opinions—as stated in the Explanatory Memorandum to the Civil Code. Since it is among the principles of Islamic Sharia and the rules of Islamic jurisprudence that, when 2 equal things contradict each other, they fall and cancel each other out, the general rule must be restored by restoring the trial court's authority to determine the dispute in light of the evidence submitted, to achieve justice without being bound by either judgment. Accordingly, there is no basis for the view that gives effect to the earlier judgment on the assertion that it takes priority because it did not contradict another, or to the later judgment because it entails the judgment creditor's relinquishment of his earlier right. Rather, priority lies in discarding both and returning to the general rule whereby the judge ascertains the truth in the action in light of the evidence submitted. It is established that a judgment is non-existent only if it is devoid of its fundamental elements, such as where it is issued by an improperly constituted court, by a person who is not considered a judge, or by a judge without jurisdiction; or where it concerns a personal status matter and contradicts a text in the Quran or the Sunnah or contravenes consensus; or where it is issued in proceedings that were not constituted. Accordingly, the challenged judgment based its rejection of the appellant's plea that the action could not be heard because it had previously been determined in Action 2133 of 2004, Commercial Civil Plenary—Government, on its conclusion from the papers that the judgment relied upon, although final and irrevocable, had no res judicata effect in the present dispute, notwithstanding the identity of parties, subject matter, and cause, because it contradicted and conflicted with the judgment rendered in Action No. 1518 of 2010, Commercial and Civil Plenary—Government, which had also become final and irrevocable. The first judgment relied upon and the judgment rendered in Action No. 1216 of 2011, Commercial and Civil Plenary—Government, which had become final and irrevocable and ruled that the action could not be heard because it had previously been determined in Action No. 2133 of 2004, Commercial Civil Plenary—Government, which rejected the respondent's claim to sole entitlement, to the exclusion of the other heirs, to the compensation awarded for Sketch Plan No. 46/74, on the grounds linked to its operative part that no effect should be given to the inheritance relinquishment agreement No. 173, Volume/1, dated 1/3/1970, and that compensation should be distributed among all the heirs according to their Sharia shares. In contrast, the second judgment, No. 1518 of 2010, Commercial and Civil Plenary—Government, also final and irrevocable, dismissed the appellant's action claiming compensation due to him for the land under Deed No. 46/74, on the basis of the binding effect of inheritance relinquishment agreement No. 173, Volume/1, dated 1/3/1970, and that he was entitled in the estate of his father, Sheikh ...., only to what was stated in the inheritance relinquishment agreement, and had no right to anything else, whether mentioned in the inheritance relinquishment agreement or not. In view of the conflict and contradiction between the 2 aforementioned judgments concerning the binding effect of the inheritance relinquishment agreement dated 1/3/1970 and whether or not it included the compensation awarded for Deed No. 46/74, the challenged judgment discarded the res judicata effect of both judgments and proceeded to determine the merits of the dispute in light of the evidence and documents submitted. Since the judgment's conclusion was reasonable, had its established basis in the papers, and rested on correct legal and factual determinations, the first limb of the challenge to it is unfounded. The second limb of the challenge, concerning the non-existence of Judgment No. 1518 of 2010, Commercial Plenary—Government, for contravening the rules of Islamic Sharia, is incorrect, because that judgment was issued satisfying all its fundamental elements and conditions of validity and contains nothing contrary to the rules of Islamic Sharia. The challenge on this ground is therefore inadmissible.