Reasons
After perusing the minutes, objection pleading and the decision issued by the
Court of Appeal, I agree with the decision issued by the Court of Appeal, that is to
quash the decision issued by the Trial Court and to refer the case back to it to
proceed again.
However, I disagree with decision issued by the Court of Appeal in two (2) points:
1. Respondent did not respond to appellant’s claims regarding the items
presented to her by appellant for the official engagement, nor its value, the
parts that have perished or used, yet, her response was directed to the
reasons why the engagement was cancelled, therefore, the papers shall be
referred back to the Trial Court and shall be reconsidered to hear the reply
of respondent with regard to the type and value of the gifts.
2. Article (10-2) of the Personal Status Act has expressly and clearly provided
that, if the right of the party who retreated the engagement is established,
he shall recover the items gifted if they are still existing and their value at
the time received if they perished. This express clear provision closes the
door for implementing the Hanfia school principals, however, the legal
provision extracted from Malykia school principals as a source of legislation
shall be applied in this part.
Therefore, and based on the above, I believe, if my respected colleagues in this
circuit agree, to uphold the contested judgment by referring the case back to the
Trial Court, to consider the case based on this pleading and then issue its
reasonable judgment to reject/quash the appeal on summary basis, and appellant
shall bear the respective fees.
Dr. Ahmed Mohammed Abdul Mageed “signed”
Judge at the Supreme Court
04/08/2015