judgment the subject matter of appeal did not reveal any of the above reasons of intervention. The court of appeal decision went to referring the case to the Court of First Instance to resume looking into the case subject to the direction stated in the appeal memo. This decision did not finally dissolve on the dispute. It's for the Court of First Instance to carry more investigation of the case. The case is a request for joining the custody of the child for the reason of the end of the age initial period fixed for the women custodian. In such case the court must make sure the there is a genuine suitability in the women mother that is not in existence in the father see (objection rule in the precedent 35/1987 Sudan Law Journal Report 87 page 34 – The allegation that there is a mistake in the law application in the court of appeal decision while the court is practicing its discretionary powers in referring the case to the court of First Instance for rehearing is unsound. It's not uncommon that the court of appeal may draw from the same facts that is presented before the court of First Instance a different conclusion from that drawn by the court of first Instance provided that such drawing is sound, just and based on submitted enough evidence. There is an important note that should be made on this case, namely that the Court of First Instance decided against Awadyia (first defendant) to deliver the child to the father while, it admitted by Awadyia that the child is not in her custody but in the custody of the second joined defendant. Since this is the case, the court of First Instance should have ordered dismissal of the case against Awadyia and rule only against the Second defendant Bashria whatever that rule may be. Its judicially ruled that the defendant could not be obliged to do something which is not in his control and decision against the defendant that effect shall be null and void (see / objection rule in precedent 71 /1983 – published in Sudan Law Report 1987 page 63 – For the above stated reason and for the correctness of the court of appeal decision to refer the case to Court of First Instance for rehearing, I see it a must to dismiss the Objection application summarily under. 168 of the Civil Procedure Act 1983 as amended 2009. Faiza Ibrahim Zain Alabdeen Supreme Court Judge 10/1/2016 Abdulrahim Abdalseed Supreme Court Judge 17/1/2016 Concurred With all due respect to the first and second opinion of my colleagues, however I did not find reasons for the ruling that the paper should be resent to the Court of First Instance for rehearing. The defendant was instructed by the court to submit evidence to prove her suitability for the custody of the child and no evidence was submitted to that effect. I fact the child bad examination result clearly reflect that the defendant is not suitable for the child custody. It's not true that when the defendant fails to prove his suitability for custody the plaintiff shall prove his suitability. In my opinion the process of the Court of First Instance towards showing the defendant her right to direct Oath to the plaintiff in absence of her evidence was correct and legal. Since The defendant refused to direct the oath and as result of that the court of First Instance issued its decision, that decision meets the law requirement in all aspects. I only concur to the part of the ruling that require the judgment to be passed against the joined Defendant. Rabab Mohammed Mustafa Supreme Court Judge 15/3/2016 Final order; A majority decision to be passed dismissing the application summarily Abdulrahim Abdalseed Supreme Court Judge Circuit President 20/3/2016 Concurred