Kuwait Court of Cassation principle number 491

Summary: - The trial court’s determination of the nature of liability. It is not bound by what the injured party relied upon in seeking compensation or by the legal provision on which he relied. Its obligation, of its own motion, to determine the correct basis thereof, ascertain the applicable legal rule and apply it to the facts before it. This is not considered a change to the cause of action or its subject matter. Reason. Every right to compensation accruing to the injured party against the person who inflicted or caused the harm is the direct cause of action, however its forms may differ. - Grounds of appeal. Their scope encompasses whatever factual or legal grounds the appellant considers would lead to reversal or variation of the judgment appealed against. The appellant is not obliged to state all grounds of appeal in his notice. It suffices to state some of them in concise, meaningful wording removing ambiguity. Other grounds may be added and grounds previously stated in the notice may be abandoned, without being bound by the time limit for appeal or its service. The Court of Appeal may base its ruling in favour of the appellant on the other grounds. Reason. The legislature’s intention in requiring the grounds of appeal to be stated in the notice is to ensure the seriousness of the appeal, not to define its scope. Rule: It is established in the jurisprudence of this Court that, in determining the nature of liability, the trial court is not bound by what the injured party relied upon in seeking compensation or by the legal provision on which he relied. Rather, it must, of its own motion, determine the correct basis of liability, ascertain the legal rule applicable to the parties to the liability action, and apply it to the facts before it, without this being considered a change by it to the cause of action or its subject matter, since every right to compensation accruing to the injured party against the person who inflicted or caused the harm is the direct cause of action, however its forms may differ. The jurisprudence of this Court has settled that the grounds of an appeal by way of ordinary appeal extend to include whatever factual or legal grounds the appellant considers would lead to reversal or variation of the judgment appealed against. It is not necessary to state all grounds of appeal in the notice; rather, stating some of them suffices. The appellant may add whatever other grounds he wishes, without being bound by the time limit for appeal or its service, and may also abandon the grounds stated in the notice in favour of other grounds. The Court of Appeal also has the right to base its ruling in favour of the appellant on grounds other than those appearing in the notice of appeal. Since the legislature’s entire intention in requiring the grounds of appeal to be stated in the notice is to ensure the seriousness of the appeal and not to define its scope, stating these grounds in concise, meaningful wording removing ambiguity suffices for this statement to be regarded as fulfilled. Whereas it is established in the papers that the appellant initially brought his action seeking compensation on the basis of the liability of the first respondent arising from the criminal judgment in Felony No. ..../2000, Salwa Felonies, which convicted the latter, sentencing her to imprisonment for three years with labour and immediate execution, and referred the civil action to the civil court, on the charge that she issued cheque No. ....... drawn on Kuwait Finance House Bank in favour of the appellant for an amount of KWD 68500 without an existing and withdrawable balance to cover it, in bad faith; and on the basis that this judgment became final and irrevocable upon the issuance of the judgment in Appeal No. .... of 2002 upholding it and the cassation judgment numbered .... of 2002 on 20-1-2004 ruling that the proceedings had lapsed; and that this judgment acquired binding authority in establishing her fault in causing the harm suffered by the appellant, such that it may not be contradicted and its ruling must be adhered to. He also relied on the tortious liability of the second respondent in his official capacity as the employer of his subordinates, because they facilitated the first respondent’s escape from the country through the land border crossings immediately upon the issuance of the criminal judgment convicting her. He substantiated the validity of his action by submitting before the trial court photocopies of the aforementioned criminal judgments, a photocopy of the certificate issued by the Director of the Prosecution for Criminal Enforcement Affairs and International Cooperation dated 1-6-2010, indicating that the accused (the first respondent) entered the State of Bahrain on 16-5-2010, photocopies of the letter issued by the Liaison Division of the Council of Arab Interior Ministers—General Department of Criminal Investigation and Criminal Evidence—dated 25-5-2010, indicating the first respondent’s return to her country, the State of Bahrain, and her entry on 25-5-2010, and the certificate issued by the Public Prosecution—Prosecution for Criminal Enforcement Affairs and International Cooperation—dated 2-10-2011, indicating that the criminal court’s order referring the civil action to the competent court had not been implemented by referring the case file to the Registry of the Court of First Instance to set a hearing for consideration of the action, from the issuance of the final criminal judgment therein up to its date.