EXHIBIT

Alghanim v. Alghanim et al Doc. 13 Att. 5

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In the Name of Allah The Beneficent The Merciful

In the Name of Amir of Kuwait

Sheikh Sabah Al-Ahmed Al Sabah

Court of First Instance

Circuit Summary 11

In the publicly held session in the Court of First Instance dated 27.04.2009

Chaired byMr Alaa Shaaban Judge

and presence of

Mr Yacoub Al Kandari Secretary

The following Judgment is passed on

in Action No 547/2009 Summary Capital Governorate 11

Filed by

Mr Bassam YousefAhmed Aighanim

Versus

1- YousefAhmed Alghanim Sons Company W.L.L2- KYA3- Undersecretary of MOCJ in his capacity

Merits

HAVING REVIEWED THE DOCUMENTS AND HEARD THE PLEADING

Whereas BYA has brought and deposited his Action at the Clerks Dept on March

2009 petitioning that YAAS be held at the hands of receiver who shall be selected

from the Schedule of Receivers in order to manage and administer YAAS receive

its rights from third parties pay off its debts and distribute the related profits equally

between BYA and KYA or to retain such profits in hand pending for the settlement

of the dispute either by mutual agreement between parties or by court judgment

while holding all remaining defendants involved on the grounds that both BYA and

KYA equally own multiple and diversified assets inside and outside Kuwait including

shares in shareholding companies and limited liability companies financial portfolios

real estate properties franchises etc including the shares of YAAS which are1eq1

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between BYA and KYA under the amended Memorandum of Association of

authenticated under No 280 Vol dated 30 Oct 1985 after BYA was owning 999

shares and KYA was owning 2001 shares out of 2000 shares For certain

circumstances BYAs share in the said assets were nominally waived to KYA on or

after Jan 1993 when KYA made an irrevocable acknowledgment that BYAs waiver

of 50% in the assets shall be regarded as nominal waiver and that KYA shall

immediately and unconditionally return BYAs share in the assets to BYA upon

BYAs request Since 1993 till 2008 the management and development of these assets

were made jointly by BYA and KYA In 2008 BYA expressed his desire to get back

his share in the assets making up 50% of all commonly owned assets KYA proposed

to BYA in contradiction with KYAs Acknowledgment that the commonly owned

assets located inside Kuwait be divided on 40% and 60% for BYA and KYA

respectively and the commonly owned assets located outside Kuwait be divided on

50% for each BYA and KYA signed the 12 March 2008 Agreement setting forth the

general guidelines for terminating the partnership and afterwards signed the 27

March 2008 MOU and enclosed thereto number of schedules listing the commonly

owned assets that should be distributed Throughout the eleven months preceding the

date of filing the action KYA has never honored his obligations under the 12 March

2008 Agreement solely controlled the management income and profits of YAAS

and prevented BYA from exercising his rights in YAAS causing material damages to

BYA Furthermore YAAS achieved profits worth KD 28867000 Kuwaiti Dinar

Twenty Eight Million Eight Hundred Sixty Seven Thousand for the financial year

ended 31 Dec 2007 as per the YAAS Balance Sheet signed by KYA and BYA has

not received his share in such profits and the YAAS and the 2007 and 2008 profits

remained at the sole hands of KYA thus posing an imminent danger on BYAs

rights To protect his rights BYA filed this receivership action versus YAAS

Having brought the action before court BYAs Attorney attended and presented

Portfolio including the following documents copy of the 12 March 2008

Agreement YAAS Memorandum of Association dated 20 June 1981 YAAS

amendcd Memorandum of Association dated 15 June 1982 YAAS amendecL

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Memorandum of Association dated 30 Oct 1985 letters and summons requesting

KYA to honor his obligations and copy of YAAS Balance Sheet dated 16 June

2008 YAAS Attorney attended and presented Memo and requested to principally

dismiss the action and to subsidiarily challenge the jurisdiction of the court over the

action KYA was represented by two Attorneys The First Attorney presented

Memo requesting to challenge the jurisdiction of the court over the action reject and

dismiss the action and to hold BYA responsible for payment of the actual legal fees

and expenses and presented Portfolio including the following documents copy of

the 12 March 2008 Agreement copy of the 27 March 2008 MOU YAAS 2007

Balance Sheet bank statements and statement on YAAS personnel and EYs

Letter KYAs Second Attorney presented Memo and requested to challenge the

competence of the Summary Matters Judge reject and dismiss the action and to hold

BYA responsible for the litigation and legal fees and presented Portfolio including

the following documents copy of the 27 March 2008 MOU letters issued by EY

copies of correspondences from KYAs Attorney to BYA GB account statement

listing the amounts of money transferred from YAAS account to BYA two summons

from YAAS to BYA EY Report showing the growth achieved by Alamana Industries

and FY unqualified Report on the audited financial statements of the companies

included in the report and BYAs Defense Memo presented in Action No 527 2009

Summary The States Attorney on behalf of Undersecretary of MOCI in his

capacity and the Court has adjourned the action till todays session for pronouncing

its judgment BYAs Attorney presented Memo and KYAs Attorney presented

Memo then BYAs presented two requests for pleading request for presenting

documents related to the subject matter of the action and the other request is related

to endeavors for reconciliation between BYA and KYA

In relation to the subject matter of the action and the challenge of the jurisdiction of

the court over the action the Court indicated that it is established under Article 32 of

the CCCP that Summary Matters Judge may place receivership on movable

asset real estate property or finds falling under dispute or where the right therein

not be determined if the affected party may have reasonable grounds to believe

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such disputed asset real estate or fUnds shall be subject to an imminent danger

if the same may continue to be held at the hands of the cunent possessor thereof

In addition whether there are serious conflict and an imminent danger calling for

receivership is an issue that shall be determined by the trial court which shall establish

its judgment on reasonable grounds Objection No 1480 of 54 Judicial Cassation Session

dated 28 Feb 1985 and Objection No 6286 of 63 Judicial Cassation Session dated 10 Feb

2002

Furthermore receivership is provisional measure and the passed judgment confers

legal capacity whereby the receiver shallcarry out the task assigned thereto within the

limits defined under the judgment Objection No 36 of 22 Judicial Cassation Session

dated 10 Oct 1955

It is established under Jurisprudence that the Summary Matters Judge shall have

jurisdiction over receivership action when the reasonable grounds calling for

receivership exist dispute danger the assets requested to be held at the hands of

receiver can be managed by third party the summary nature of the dispute and the

non-prejudice to the right The dispute is case-specific and shall be serious and based

on reasonable grounds as evidenced by documents on their face and the circumstances

of each action In addition the danger shall be imminent serious and may not be

warded off by means of the ordinary legal proceedings It should be noted that

whether the imminent danger may exist or not is an issue that shall be determined by

trial judge at his own discretion who shall also establish his judgment on reasonable

grounds Mohamed Au Rateb Summary Matters Judge Edition Page 474

Based on the above and whereas BYA has lodged the present action requesting that

YAAS be held at the hands of receiver and that receiver be appointed from the

Schedule of Receivers to administer YAAS pending for the settlement of the

dispute either by agreement between parties or by court judgment claiming that

KYA is solely controlling YAAS and has not given BYAs share in YAAS to BYA

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UTURE TRANSLATION

Whereas receivership is an exceptional measure that shall be ordered by the Summary

Matters Judge in case there is an urgent need for warding off an imminent danger on

the assets subject of receivership and such an imminent danger can not be warded off

by the ordinary legal proceedings and therefore serious dispute shall arise as

evidenced by the documents and relevant circumstances given that the dispute shall

mean the broad sense of the word and shall include the dispute over assets required to

be held under receiver In addition non-serious dispute shall not be regarded as an

imminent danger and the purpose of receivership shall not be intended to protect the

assets by provisional measure

Whereas it is made clear by the documents that BYA is partner in YAAS and

therefore has the capacity and interest for lodging this action on the grounds that there

is dispute between BYA and KYA related to the receiving of his share in YAAS

profits the Court is not satisfied that the conditions for receivership are achieved by

this request imminent danger on YAAS assets serious dispute on YAAS

assets to the extent that the assets shall not remain under the control of KYA given

that settlement of accounts violation of the Memoranda of Association as amended

violation of the 12 March 2008 Agreement and the 27 March 2008 MOU and delayed

delivery of profits to BYA by KYA shall be supported by documents and verified by

specialized entities and this shall not lie within the competence of summary

jurisdiction Therefore the grounds and conditions for receivership are nonexistent in

the present action and the Jurisdiction of the Summary Matters Judge may not be

challenged by the MOU or any arbitration agreement and therefore the Court is

satisfied that the present action has not been established on factual and legal grounds

and therefore the Court has dismissed the action

In relation to the litigation fees the Court has held BYA responsible for such fees and

expenses according to Article 119/1 of the CCCP

In relation to KYAs request for the actual legal fees and whereas it is established

nderArticle 119 Bis of the CCCP setting forth that The Court shall estimate the

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fees based on the request of the party for his favor the judgment is issued and

based on the actual fees incurred by such party while giving due care to the subj ect

matter of the action and court level and whereas it is proven that KYA has been

represented in the court sessions by two attorneys who presented defense memo and

two portfolios of documents and in consideration of the subject matter of the action

and BYAs requests the Court adjudicated that BYA shall be responsible for the

payment of the legal fees worth KD 1000

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FUTURE TRANSLATION

THEREFORE

The Court declared the action dismissed and held BYA responsible for the legal and

attorney fees worth KD 1000

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MintVpj Justice

Translation Office

he papers translated by the officially

accredited office at the ministry of information

Are certified without any liability concerning its contents

or the accuracy of th ranslation

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