( The National Supreme Court )

Cassation No.44/2017

Issued on 16/1/2017

Judges:

President

Hon Justice: Mofida Yousif Abas              Supreme Court Judge

Member

Hon Justice: Insaf Ahamed Mohmad        Supreme Court Judge               

Member

Hon Justice: Mohamed Abdalla Ibrahim   Supreme Court Judge

Article (43) The Law of Personal Status Rule 11 /A of Schedule three attached to the Law of Civil   procedure – jurisdiction of the circuit of personal status.

The Principle:

The hearing of the suits of jewelary are within the jurisdiction of the circuits of personal status as far as the claim is for recovery of the same or its value as being a gift of marriage, and it is incorrect to say that the circuits of the personal status have no jurisdiction to hear these suits, and this cannot be accepted as a preliminary defence for quashing the suit, before the Respondent can prove    an agreement between the parties for selling the jewelary and every thing else.

Judgemen

Judge: Insaf Ahmed Mahmud

Date: 4/1/2017

On 26 / 1 /2016 the Sharia Court of Khartoum South deleted the legal defence presented by the Respondent. On 21/ 12 / 2016 the General Court of Khartoum South, dismissed the suit of the challenger for lack of jurisdiction and this was confirmed by the Court of Appeal Khartoum by its decision / a p sh / 395 / 2016.  The challenger knew of the decision on 16 / 8 / 2016 and on 18 / 8  / 2016, requested revoking the two decisions.

The application conforms with Articles 159 / 174 of the Law of Civil Procedure 1983 A.D as amended in 2009 A.D. Therefore the challenge is formally accepted. The Respondent was notified with a copy of the petition on 13 / 12 / 2016 A.D, but he did not reply. So we shall decide the suit substantively.

The challenger was a lawful wife of the Respondent and he divorced her. At the time of engagement he gave her jewelary as part of the dower and after the marriage he gave her a quantity of gold as a gift the total is an amount of "162.5" grams, standard "21" and on alter date the Respondent took that jewelary from the challenger to purchase a plot of residential land, and to registrar it equally between them. But he registered the plot in his name alone and refused to return the jewelary to her. The challenger asked for compelling the Respondent to return the jewelary or its value if it perished.

The Respondent raised a legal defense alleging, that there is an agreement between the parties to purchase with the value of the jewelary a plot of land and register it equally between them, that the conclusion of the contact, its annulment and its breach are within the jurisdiction of the Civil Courts. The Respondent requested revoking of the suit for lack of jurisdiction. He agreed as to the early marriage and divorce, and he denied giving her the jewelary as an endowment, but as a loan and for ornament and she returned it to him during the existence of their marriage and then she sold it herself and gave him the value to purchase a plot of land and that land was originally owned by him. He requested the Court to quash the suit.

The challenger replied that the basis of the suit is the recovery of the jewelary and the Court has jurisdiction to hear the suit, because there is no written agreement about the plot of the land and the Respondent betrayed her and took the jewelary from her which was part of the dower. She requested quashing the preliminary defence and insisted on its substantive suit.

The Court of First Instance was of the opinion that the suit is in respect of jewelary and it has the qualitative jurisdiction to hear the suit and decided to proceed, and to require the challenger to prove her suit. The General Court found that the jewelary is non - existent, because the Respondent took it from the challenger and purchased with its price a plot of land and the dispute became a bout this land, and thus the Sharia Court has no jurisdiction and the Civil Court has the jurisdiction. The General Court decided to dismiss the suit for lack of qualitative jurisdiction and the Court of Appeal confirmed the decision, according to Article "23" of the Law of Procedure and Article 43-56 of the law of Personal Status.

The challenger claimed that the jewelary was brought to her as a gift during the period of engagement and as part of the dower.

The Respondent alleged that the jewelary was a loan and ornament and that the General Court and the Court of Appeal ignored the provisions of Article 29 / 49 of the law of Personal Status, because in her suit she did not require the implementation of the agreement concerning the land, but only required the recovery of the jewelary or its value.

Article (43) of the Law of Personal Status 1991 defined the domestic belongings as furniture and clothes including jewelary as one of them. The third schedule (11A) attached to the Law of Civil Procedure 1983 granted the District Courts the right to decide the suits concerned with the dower, trousseau and domestic belongings for the couple or their heirs. The provision of this schedule is applicable to the suit of personal status of the Muslims if provided for. When not provided for then the provisions of the other laws of procedures are applicable which are not found in the third schedule. The High Court applied this in m.a.i.t.g / 102 / 75, reported in the Journal of Law Reports 1975 P/540. The jurisdiction to hear the disputes of the personal status of the Muslims according to the Law of Civil Procedure and schedule is relating to public order , and this includes the dispute concerning the belongings of the couple whether the relation is existing or expired, and whether the dispute  pertaining to its ownership or recovery.

The qualitative jurisdiction its aim is the distribution of the work among the grades of the Courts within the judicial locality on the basis of the type of the suit, regardless of its value. This is for achieving public good in judicial proceedings, its best performance and is related to public order, so the Court can decide it of its own accord even if the litigants did not adhere to it. The parties shall not agree to the contrary.

As far as there is a provision in the third schedule giving the jurisdiction to the personal status Courts to hear the suits of the jewelary, specially when the challenger did not require the registration of the plot, which the Respondent alleges that he purchased it after selling the jewelary, but challenger required the recovery of the same jewelary or its value as being a marriage gift.

Thus it is wrong to say that the Sharia Court has no jurisdiction to hear the suit, and this must not be accepted as preliminary defence to quash the suit, before the Respondent can prove the agreement between the parties about selling the jewelary and all his other allegation.

The formal defence or what is known as legal defences their aim is not rejecting the claim of the plaintiff or for the defendant to object against that right required by the plaintiff, but they are defences presented challenging the rightness of the procedure taken by the plaintiff in raising his suit, they are his means for delaying the proceedings or preventing the hearing, either for lack of jurisdiction or by reason of the procedure applied in the dispute itself. ( Dr.Fathi Wali – the Civil Law P.370).

Therefore we decide to quash the decision of the General Court and of the Court of Appeal and refer the papers to the Court of First Instance to hear the suit in the same way of hearing the suits of jewelary in the Sharia Courts.

Judge: Mofida Yousif Ali

Date: 16/1/2017

I concure.

Judge: Mohamed Abdulla Ibrahaim

Date: 12/1/2017

I concure.                 

The Final Order:

The appeal is quashed and we refer the papers to the Court of the First Instance to act according to this note.

Mofida Yousif Abas

Judge of the supreme Court

President of the Court

16/1/2017