Kuwait Court of Cassation principle number 245

Summary: - No judges other than those who heard the pleadings may participate in deliberations. Judges who participated in deliberations. Must attend the pronouncement of judgment. An impediment affecting one of them. Its effect. He must sign the draft judgment. - Court of Appeal judgments. Issued by three counsellors. Article 9 of the Judicial Organisation Law. Contravention thereof. Its implication. Nullity of the judgment. The reason. It concerns the foundation of the judicial system. - A judgment must contain the particulars specified in Article 116 of the Law of Procedure, including the names of the judges who heard the pleadings and participated in deliberations and issuance of the judgment in the case. - The expression “the judges who issued the judgment.” Its meaning. The judges who determined the case, not those who attended its pronouncement. The criterion. The particulars set out in the original judgment and the hearing minutes. Reliance is placed on the original signed by the presiding judge and the clerk. The reason. It is retained in the case file and serves as the reference for obtaining enforceable copies and other copies. Such nullity concerns public policy, and the Court of Cassation may rule on it of its own motion. An example of nullity of a Court of Appeal judgment because its draft was signed by the panel in the form of illegible marks from which their identities could not be ascertained, and the original judgment failed to specify the names of the three counsellors who participated in deliberations and signed its draft from among the four counsellors whose attendance was recorded in the minutes of the final pleading hearing. Rule: It is established in this Court’s jurisprudence that Article 112 of the Law of Procedure provides that no judges other than those who heard the pleadings may participate in deliberations, and the judges who participated in deliberations must attend the pronouncement of judgment. If an impediment affects one of them, he must have signed its draft. The provision of Article 6 of the Judicial Organisation Law that “Court of Appeal judgments shall be issued by three counsellors” means that this concerns the foundation of the judicial system, and contravention thereof entails nullity of the judgment. Article 116 of the Law of Procedure requires the judgment to contain specified particulars, including the names of the judges who heard the pleadings and participated in deliberations and issuance of the judgment in the case. The expression “the judges who issued the judgment” means the judges who determined the case, not the judges who attended the pronouncement of judgment. The criterion in this respect is reliance on the particulars set out in the original judgment, supplemented by what appears in the hearing minutes in this regard. Reliance is also placed on the original signed by the presiding judge and the clerk because it is retained in the case file and serves as the reference for obtaining enforceable copies and other copies. This is nullity connected with the foundation of the judicial system and concerning public policy, which the Court rules upon of its own motion. Accordingly, since 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 four counsellors, presided over by Counsellor Ahmed Ezzat Abu Zeid, with Counsellors Sultan Nouh Boursali, Abdul Hakim Al-Furai and Adel Mohammed Al-Shahawi as members, and that at that hearing the Court reserved the appeal for judgment at the hearing of 17/10/2013, at which the challenged judgment was issued; and since the original judgment establishes that the panel which pronounced it was presided over by Counsellor Ahmed Ezzat Abu Zeid, with Counsellors Sultan Nouh Boursali and Adel Mohammed Al-Shahawi as members; and since the counsellors’ signatures on the draft challenged judgment took the form of illegible marks from which their identities could not be ascertained; and since the original challenged judgment failed to specify the names of the three counsellors who participated in deliberations and signed its draft from among the four counsellors whose attendance was recorded in the aforementioned final pleading hearing minutes, this is an essential particular whose omission from the original judgment—which is the witness and proof of its existence—means that the judgment does not itself demonstrate fulfilment of the conditions for its validity, rendering it void. This is not affected by the presence of two correction marks against the names of Counsellors Abdul Hakim Al-Furai and Adel Al-Shahawi in the minutes of that hearing, as the minutes did not state who replaced them at that hearing. Furthermore, saying that the panel which heard the pleadings and participated in deliberations consisted of only two members would lead to nullity of the judgment. This vitiates the challenged judgment and requires its cassation without any need to examine the grounds of appeal.