Kuwait Court of Cassation principle number 313

Summary: - Regulation of the procedures and requirements necessary for exercising the right of litigation concerning disputes relating to housing welfare. The legislature regulated them under Article 33 bis of Law 47 of 1993, added by Law 2 of 2011 concerning housing welfare. - Submission of a dispute relating to housing welfare to the committee constituted pursuant to Article 33 bis of Law 47 of 1993, added by Law 2 of 2011 concerning housing welfare, before resorting to the courts. Its conditions. The dispute must relate to housing welfare, the Public Authority for Housing Welfare must be joined as a genuine opposing party, and claims must be directed against it to compel it to take the measures that the law entrusted it to take. Absence of those conditions in the action. Its consequence. It is not considered one of the disputes relating to housing welfare intended by law, and the litigant is not required to submit it to that committee for settlement of the dispute before resorting to the courts. The challenged judgment's departure from this and its requirement of submission to the aforementioned committee despite the absence of the necessary conditions render the judgment defective and necessitate its cassation. Rule: It is established—in the jurisprudence of this Court—that a judicial claim is a procedure directed to the court against the defendant, by which the scope of the action is determined as to parties and claims, and the court, when deciding it, must not go beyond that scope. Although determining the scope of the action, ascertaining the true nature of its claims and the parties' intention behind them, and giving the action its true description and correct legal characterization constitute an understanding of its facts falling within the authority of the trial judge, this is conditional upon the judge basing the judgment on sound reasons without altering those claims so as to take them beyond the parties' intention, since the judge is fundamentally required to refer to the statutory text and apply it to the facts of the action within the limits of the genuine judicial dispute between its parties. Whereas the Constitution guarantees people the right of recourse to the courts and entrusts the law with specifying the procedures and requirements necessary for exercising that right, and whereas Article 33 bis of Law No. 47 of 1993, added by Law No. 2 of 2011—within the legislature's authority to regulate the procedures and requirements necessary for exercising the right of litigation concerning disputes relating to housing welfare—provides that: "A committee for the resolution of disputes relating to housing welfare shall be constituted, its constitution to be effected by a decision of the Council of Ministers ..... The dispute must first be submitted to the committee for settlement before resorting to the courts," this means that submitting the dispute first to the aforementioned committee before resorting to the courts requires that it relate to housing welfare, that the Public Authority for Housing Welfare be joined as a genuine opposing party, and that claims be directed against it to compel it to take the measures that the law entrusted it to take. If those conditions are not met in the action, it is not considered one of the disputes relating to housing welfare in the manner intended by the legislature, and the litigant is not required to submit it to the aforementioned committee for settlement before resorting to the courts. That being so, and the facts of the action—as recounted by the challenged judgment—being that the appellant brought it seeking a judgment compelling the first respondent—her husband—to take the measures necessary to obtain a title deed for the plot described in the statement of claim and allocated to them, and, in the event of his abuse and failure to do so, a judgment declaring her entitlement to take those measures without his signature, in the presence of the second and third respondents in their official capacities, the scope of the genuine adversarial dispute was thus determined, as to parties, as comprising the appellant and the first respondent—her husband—and, as to claims, as compelling the latter to take the measures to obtain the title deed for the plot allocated to them before the Public Authority for Housing Welfare, the second respondent, which was joined so that the judgment would be rendered in its presence, without any claims being directed against it and without anything therein requiring it to take any measures under the Housing Welfare Law. Accordingly, the action within this scope as to parties and claims is not one of the disputes relating to housing welfare that the legislature required to be submitted to the committee constituted under the aforementioned Article 33 bis before the parties resort to the courts. Since the challenged judgment departed from this view and upheld the first-instance judgment insofar as it ruled the action inadmissible for having been brought otherwise than through the procedure prescribed by law, because the dispute had not been submitted to the aforementioned committee before resorting to the courts, it is defective, necessitating its cassation.