Kuwait Court of Cassation principle number 76

Summary: - No judges other than those who heard the pleadings may participate in deliberations. The judges who participated in deliberations. They must attend the reading of the judgment. An impediment affecting one of them. Its effect. He must sign the draft judgment. - Judgments of the Court of Appeal. Their issuance by three counsellors. Article 9 of the Judicial Organization Law. Contravention thereof. Its implication. Nullity of the judgment. The reason. Its connection with the foundation of the judicial system. - A judgment must contain the particulars specified in Article 116 of the Code of Procedure, including the names of the judges who heard the pleadings and participated in deliberations and in issuing the judgment in the action. - The expression “the judges who issued the judgment.” Its meaning. The judges who decided the action, not those who attended its reading. The criterion therefor. The particulars set out in the original copy of the judgment and the hearing record. Regard is had to the original copy signed by the presiding judge and its clerk. The reason. It is retained in the case file and constitutes the reference for obtaining enforceable copies and other copies. Such nullity concerns public order, and the Court of Cassation may rule on it of its own motion. An example of the nullity of a judgment issued by the Court of Appeal because its draft was signed by the panel in an illegible signature form from which their identities could not be ascertained, and the original copy of the judgment failed to identify the names of the three counsellors who participated in deliberations and signed its draft from among the four counsellors whose attendance was established in the record of the final pleading hearing. Rule: It is established—in this Court’s jurisprudence—that Article 112 of the Code of Procedure provides that no judges other than those who heard the pleadings may participate in deliberations, and that the judges who participated in deliberations must attend the reading of the judgment; if an impediment affects one of them, he must have signed its draft. The provision of Article Six of the Judicial Organization Law that “Judgments of the Court of Appeal shall be issued by three counsellors” means that this concerns the foundation of the judicial system, and its contravention entails the nullity of the judgment. Article 116 of the Code of Procedure requires a judgment to contain specified particulars, including the names of the judges who heard the pleadings and participated in deliberations and in issuing the judgment in the action. The expression “the judges who issued the judgment” means the judges who decided the action, not the judges who attended the reading of the judgment. The criterion in this respect is reliance upon the particulars set out in the original copy of the judgment, supplemented by what appears in the hearing record in that regard. Regard is also had to the original copy signed by the presiding judge and its clerk because it is retained in the case file and constitutes the reference for obtaining enforceable copies and other copies. This is a nullity connected with the foundation of the judicial system and concerning public order, which the court shall rule upon of its own motion. That being so, it is established from the record of the final pleading hearing before the Court of Appeal dated 24/9/2013 that the panel which heard the pleadings consisted of four counsellors, presided over by Counsellor Ahmed Ezzat Abu Zeid, with Counsellors Sultan Nouh Boursli, Abdul Hakim Al-Furai and Adel Mohammed Al-Shahawi as members. At that hearing the court decided to reserve the appeal for judgment at the hearing of 17/10/2013, at which the challenged judgment was issued. It is established from the original copy of the judgment that the panel which pronounced it was presided over by Counsellor Ahmed Ezzat Abu Zeid, with Counsellors Sultan Nouh Boursli and Adel Mohammed Al-Shahawi as members. The counsellors’ signatures on the draft challenged judgment were in an illegible signature form from which their identities could not be ascertained. Since the original copy of the challenged judgment failed to identify the names of the three counsellors who participated in deliberations and signed its draft from among the four counsellors whose attendance was established in the record of the aforementioned final pleading hearing, and this is an essential particular whose omission from the original copy of the judgment—which is the witness and evidence of its existence—means that the judgment does not itself demonstrate the fulfilment of the conditions for its validity, this renders it void. This is not affected by the presence of two correction marks against the names of each of Counsellors / Abdul Hakim Al-Furai and Adel Al-Shahawi in the record of that hearing, since the hearing record contains no statement of who replaced them at that hearing. Furthermore, saying that the panel which heard the pleadings and participated in deliberations consisted of only two members would lead to the nullity of the judgment. This renders the challenged judgment defective and requires its cassation without any need to examine the grounds of appeal.