Kuwait Court of Cassation principle number 455

Summary: - The provision in Article 53 of the Law of Evidence concerning res judicata. It constitutes a departure from the general rule giving the court of merits full authority to understand the facts of the case, assess and weigh its evidence, accept what it finds convincing and discard the rest on reasonable grounds, including evidence previously presented in an earlier case, because the assessment of evidence does not itself acquire res judicata effect. The consequence: the court is bound—whatever its conviction—not to decide a case contrary to another judgment previously issued between the same parties and having acquired the force of res judicata. The reason: the presumption of the correctness of the judgment, to protect the judicial system and prevent conflicting judgments and the perpetuation of disputes. - Res judicata. Its close connection with public policy. The reason for this. - Issuance of two contradictory judgments in the very 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 circumstances and interests, without adherence to a particular school of jurisprudence or restriction to the preponderant opinions within them. The basis for this: Article 1/2 of the Civil Code and the Explanatory Memorandum to the Civil Code. Its effect: where two equal things contradict one another, they fall and cancel each other out, and recourse must be had to the general rule, with the court of merits recovering its authority to decide the dispute in light of the evidence presented. The reason: to achieve justice without being bound by either judgment. There is no basis for the opinion that accords effect to the earlier judgment on the assertion that it has priority because it did not contradict another, or to the later judgment because it entails the successful party's relinquishment of his earlier right. The judge may discard both and return to the general rule by ascertaining the merits of the case in light of the evidence presented. - Nonexistence of a judgment. Its condition: its lack of its original essential elements. Instances thereof: issuance by an improperly constituted court, by a person who is not a judge, or by a judge lacking jurisdiction, or its relating to a matter of status and contradicting a text of the Quran or the Sunnah or contradicting consensus, or issuance in proceedings that were not constituted. An example of a valid judgment in which the court of merits discarded reliance on the res judicata effect of two irrevocable contradictory judgments and adjudicated the merits of the case in light of the evidence and documents presented 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 conclusive as to the matters in dispute they have decided, and no evidence rebutting this presumption may be admitted. However, such judgments shall have this effect only in a dispute arising between the same parties without their capacities having changed, and concerning the same right in subject matter and cause. The court shall give effect to this res judicata of its own motion" constitutes a departure from the general rule giving the court of merits full authority to understand the facts of the case, assess and weigh its evidence, then accept what it finds convincing and discard the rest on reasonable grounds, including evidence previously presented in an earlier case, because the assessment of evidence does not itself acquire res judicata effect. However, the provision bound the court—whatever its conviction—not to decide a case contrary to another judgment previously issued between the same parties and having acquired the force of res judicata, in order 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. Judges lack infallibility, being in this respect like all other human beings; nevertheless, the legislature made the presumption of correctness of a judge's judgment absolute, in the interests of the proper administration of justice and to avoid perpetuating litigation. The Explanatory Memorandum to the Law of Evidence states: "Res judicata is closely connected with public policy because its foundation is a legal supposition of the absolute correctness of judgments, a supposition dictated by the public interest to ensure the proper administration of justice, secure the stability of rights for their holders, and prevent the futile renewal of disputes concerning them." This supposition rests on a conclusive presumption whose implication may not 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 obligatory even if they depart from justice in a particular dispute. If, however, the original purpose is defeated by the issuance of two contradictory judgments in the very same dispute and between the same parties, and in view of the absence in legislation and custom of a rule governing that situation, then, pursuant to the second paragraph of Article One of the Civil Code, recourse must be had to the rules of Islamic jurisprudence most consistent with the country's circumstances and interests, without adherence to a particular school of jurisprudence or restriction to the preponderant opinions within them—as stated in the Explanatory Memorandum to the Civil Code. Since the principles of Islamic Sharia and the rules of Islamic jurisprudence include that, where two equal things contradict one another, they fall and cancel each other out, recourse must be had to the general rule, with the court of merits recovering its authority to decide the dispute in light of the evidence presented, to achieve justice without being bound by either judgment. Accordingly, there is no basis for the opinion that accords effect to the earlier judgment on the assertion that it has priority because it did not contradict another, or to the later judgment because it entails the successful party's relinquishment of his earlier right. Rather, what takes priority is discarding both and returning to the general rule, whereby the judge ascertains the merits of the case in light of the evidence presented. It is established that a judgment is nonexistent only if it lacks its original essential elements, as where it is issued by an improperly constituted court, by a person who is not a judge, or by a judge lacking jurisdiction, or concerns a matter of personal status and contradicts a text of the Quran or the Sunnah or contradicts consensus, or is issued in proceedings that were not constituted. That being so, the judgment under appeal based its rejection of the appellant's plea that the case could not be heard because it had previously been adjudicated in Case 2133 of 2004, Commercial Civil, Plenary, Government, on its conclusion from the papers that the judgment relied upon, although final and irrevocable, did not have res judicata effect in the present dispute, even though the parties, subject matter and cause were identical, because it contradicted and conflicted with the judgment issued in Case No. 1518 of 2010, Commercial and Civil, Plenary, Government, which had also become final and irrevocable. The first judgment relied upon, and the judgment issued in Case No. 1216 of 2011, Commercial and Civil, Plenary, Government, which had become final and irrevocable and ruled that the case could not be heard because it had previously been adjudicated in Case 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, rested on the grounds connected with its operative part that no effect was to be given to inheritance withdrawal agreement No. 173, Volume/1, dated 1/3/1970, and that the compensation was to be distributed among all heirs according to their Sharia shares. By contrast, the second judgment, No. 1518 of 2010, Commercial and Civil, Plenary, Government, also final and irrevocable, dismissed the appellant's action seeking the compensation due to him for the land under deed No. 46/74, on the basis of the binding effect of inheritance withdrawal 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 specified in the inheritance withdrawal agreement, and had no right to anything else, whether mentioned in the inheritance withdrawal agreement or not. In view of the conflict and contradiction between the two aforementioned judgments concerning the binding effect of the inheritance withdrawal agreement dated 1/3/1970 and whether or not it covered the compensation awarded for deed No. 46/74, the judgment under appeal discarded the res judicata effect of both judgments and proceeded to adjudicate the merits of the dispute in light of the evidence and documents presented. Since the judgment's conclusion was reasonable, had an 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 nonexistence of Judgment No. 1518 of 2010, Commercial, Plenary, Government, for contravening the rules of Islamic Sharia, is incorrect, because that judgment was issued with all its essential elements and conditions of validity satisfied and contains nothing contrary to the rules of Islamic Sharia. Accordingly, the challenge on this ground is inadmissible.