Kuwait Court of Cassation principle number 298

Summary: - Signing a private document by any of the legally prescribed means is the true source of conferring evidentiary force upon it. Denial by the person against whom it is invoked of the handwriting, signature, seal or fingerprint attributed to him thereon, and the opposing party’s continued reliance on its significance in the dispute. The court must conduct an investigation by comparison, hearing witnesses, or both, to ascertain the truth therein. - The appellant’s reliance on the significance of original carbon copies of invoices whose value it claims, asserting that they were signed by one of the respondent’s employees, and its request to refer the dispute back to the expert to examine its defence. A material defence. The challenged judgment’s disregard of this defence and reliance on matters that do not constitute a valid response to it. A deficiency in reasoning requiring its cassation. Rule: The provision in Article 13 of Decree-Law No. 39 of 1980—concerning Evidence in Civil and Commercial Matters—that “A private document shall be considered to emanate from the person who signed it unless he expressly denies the handwriting, signature, seal or fingerprint attributed to him ....”, and in Article 27 thereof that “...... As for a person who denies that a private document emanated from him .... the burden of proving that it emanated from him falls upon his opponent .....”, and in Article 28 thereof that “If the person against whom the document constitutes evidence denies his handwriting, signature, seal or fingerprint ..... and the other party continues to rely on the document, and the document is material to the dispute, and the facts and documents of the action are insufficient to form the court’s conviction concerning the authenticity of the handwriting, signature, seal or fingerprint, the court shall order an investigation by comparison, hearing witnesses, or both”, indicate that signing a private document by any of those aforementioned means is the true source of conferring evidentiary force upon it. If the person against whom the document is invoked denies the handwriting, signature, seal or fingerprint attributed to him thereon, and his opponent continues to rely on its significance in the dispute, the court must—in order to ascertain the truth therein—conduct an investigation by comparison, hearing witnesses, or both. That being so, and as the appellant submitted to the expert in the action carbon copies of the invoices whose value it claims, the respondent acknowledged only those signed by a person called “Babu”, stating that he was its employee authorised to sign invoices acknowledging receipt of goods supplied to it. In settling the account between the parties to the proceedings, the expert therefore confined himself to invoices signed by that person, excluding the remaining invoices, which it said had been lost in a fire that broke out at its premises, and it requested proof that the respondent had received goods to their value. When his report contained no investigation establishing or disproving its entitlement to amounts stated in invoices signed by someone other than the person called “Babu”, and other amounts for which the invoices proving its supply of goods to their value to the respondent had been lost, it objected to the report before the court of merits at both levels. It maintained the evidentiary force of original “carbon” invoices it had submitted to the expert, asserting that they were signed by one of the respondent’s employees, and requested that the dispute be referred back for expert examination to investigate this—material—defence, examination of which might change the outcome of the action. However, the challenged judgment disregarded it and based its ruling on that report, whose reasons were deficient and did not constitute a valid response to that defence. This vitiates it and requires its cassation without any need to examine the remainder of the 2 grounds of appeal.