Kuwait Court of Cassation principle number 263

Summary: - There is no adjudication except in contentious proceedings, and no contentious proceedings without an action brought by a plaintiff specifying his claims therein. Article 45, Code of Procedure. Its import. The judgment must adhere to what the litigants request. This is a matter arising from the nature of adjudication as recourse to judgment between parties contesting a disputed right. The court’s departure from this scope. Effect thereof. Fundamental nullity of the judgment. Its connection with public policy. Rule: It is established in the jurisprudence of this Court that there is no adjudication except in contentious proceedings, and no contentious proceedings without an action brought by a plaintiff specifying his claims therein, as provided in Article 45 of the Code of Procedure. For this reason, the judgment’s adherence to what the litigants request is a matter arising from the nature of the judicial function as recourse to judgment between parties contesting a disputed right. If the court departs from this scope, its judgment addresses no subject matter and is thereby fundamentally void, and thus contrary to public policy in a manner taking precedence over all other forms of error in the judgment arising within the scope of the contentious proceedings before the court. What matters in determining the claims is the relief expressly and unequivocally requested so as to bring it to the court’s attention. Thus, they do not include matters referred to in the statement of claim or defence memorandum without a request that the court adjudge them. That being so, and since it is established from the statements of claim at first instance and on appeal and all the papers that the first respondent requested, at their conclusion, a judgment appointing a forensic physician to examine him medically and establish the nature, date and cause of his illness, the surgical operations he underwent, whether they resulted in his suffering a degree of disability, whether it was total or partial, and the extent of its effect on his health and his ability to bear the burdens of work, in preparation for claiming whatever the expert’s report might reveal, together with requiring the appellant bank to produce the original of his loan agreement and the loan insurance policy, and he persisted in this request without seeking judgment on any substantive claims, and remained so until the close of pleadings, this action is accordingly one for preparing evidence to serve as the basis for a second action whose subject matter would be determined by entitlement to insurance coverage. The challenged judgment should therefore have confined itself to ruling that the action had ended, since there were no substantive claims defining the contentious proceedings. Consequently, the court had no jurisdiction beyond the first respondent’s request for appointment of the forensic physician, and its foregoing ruling addressed no subject matter and became fundamentally void in a manner relating to public policy, requiring its cassation without any need to examine the remaining grounds of appeal.