مبادئ واحكام المحكمة بالانكليزية

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High Courts Decisions - Civil

High Courts Decisions - Constitutional

High Courts Decisions - Criminal

2021

Grievances of Members of the Judicial Authority

Grievance No. 1 of 2021 - Grievances of Members of the Judicial Authority Issued on 01/02/2021

1- Opposing parties are authorised to petition the court for a provisional order, seeking the imposition of a provisional seizure of funds or a travel ban. This request is made through the submission of a petition, and the order is issued without providing prior notification to the opposing party.

2- The person against whom the order rejecting the petition for provisional seizure was issued, or by the person against whom it was issued, retains the right to file a grievance against the order and has the option to challenge it through appeal and cassation.

3- Execution of the order is permissible if the ruling includes and stipulates for expedited enforcement.

4- Various types of expedited enforcement.

5- Procedures for expedited enforcement by the Court of Grievance or Appeal.

6- Determination of the writs of execution.

7- Instances in which the ruling may be enforced without notification and without affixing an executive formula.

8- Conditions for the jurisdiction of the Summary Justice to issue a ruling imposing judicial receivership or the seizure of movable property, real estate, or a sum of money.

9- The two conditions for the jurisdiction of Summary Justice in general.

10- Conditions for the jurisdiction of Summary Justice in lawsuits regarding judicial receivership and issuing orders on petitions, and the legislator''s goal in this regard.

11- The person seeking to impose receivership or seizure of funds shall have reasonable grounds to fear an immediate danger that the money will remain in the hands of its possessor.

12- The trial court has the authority to assess the immediate danger or just cause for imposing the order or judicial receivership.

13- The competent judge has the authority, without further review by the higher court, to assess the issuance of the order, as per the legislator''s framework, with jurisdiction available for the Sharia Magistrate of Summary justice, and the fear of imminent danger of disposing of movables with the decision fulfilling the procedures of notification and delivery during execution procedures and the notification of the order on a petition.

14- The judgment debtor’s admission of the right and seizure of the wife’s gold, jewelry, and belongings, the subsequent reconciliation with the petitioner, the return of the wife’s items, and the end of the dispute through a khul'' contract, the complainant''s waiver in the judicial inspection of the grievance against the order in a petition regarding the delivery of gold and jewelry, render the accountability unsupported by reality and the law.

15- The issuance of the grievant judge’s decision within the limits of jurisdiction and on a summary basis, subsequent to the acknowledgment by the judgment debtor of the debt and possession of the wife''s gold, jewelry, and belongings, was imperative for the resolution of the dispute, the stabilization of legal positions, and the protection of the rights of the opposing parties. Consequently, it is necessary to absolve the judge of accountability, as the objections raised against the judge lack a foundation in both reality and the law.

Judgements of the Personal Status Circuits

Cassation No. 817 of 2021 - Personal Status Issued on 11/10/2021

1- The concept of custody.

2- The mother''s primary right to custody, provided she meets the eligibility criteria.

3- Reasons for granting the judge discretionary authority in assessing and safeguarding the child''s interests.

4- Recognition that men may be granted custody if a female custodian is deemed unsuitable.

5- The conditions that shall be met by the custodian.

6- Entrusting a significant responsibility to the judiciary involves the meticulous verification of conditions pertaining to the applicant seeking custody. This necessitates the undertaking of a comprehensive set of investigations aimed at safeguarding the well-being and safety of the child in question.

7- The principle of keeping the child with the mother for the maximum possible period, unless it conflicts with the child''s interests, allowing discretionary authority for the judge.

8- Considering custody as a manifestation of Islamic Sharia''s care for childhood without conflicting with the guardian’s right to guardianship of a person.

9- The entitlements of the child in custody shall be duly considered, if it becomes evident that the paramount interest of the child is better served by residing with the father or an alternative custodian. This determination is made notwithstanding the inherent rights of the father, the custodian, and the child in custody.

10- The trial court''s authority to assess the child''s interest without further review.

11- The contested ruling erred in dismissing all evidence that established the respondent''s unsuitability for custody. This evidence included demonstrating her incapacity or ability to fulfill custodial duties after her marriage to a foreigner, considering the daughters'' age. Additionally, the appellant, being the father, was deemed more deserving of custody, especially following the abatement of maternal custody. The presence of competent women with the father willing to care for the two daughters further supported his eligibility for custody. The ruling erred in understanding the reality and estimating evidence and interests, coupled with deficiencies in reasoning, resulted in a violation of the provisions of noble Islamic Sharia and the law.

Cassation No. 246 of 2021 - Personal Status Issued on 30/08/2021

1-The establishment of a divorce claim due to harm by proof methods prescribed by Islamic Sharia, including testimony and supporting evidence.

2- The contested ruling, which rejected the appellant’s request for divorce due to harm, is deemed valid, since the appellant’s claim is a mere argument lacking in evidentiary support and not based on sufficient evidence that the court may rely on.

3- The wife, upon consummation of the marriage, shall be provided for her expenses, encompassing food, clothing, and housing, in accordance with her husband’s ability and financial condition.

4- The contested ruling, which dismissed the appellant’s lawsuit seeking alimony and support for her children from the respondent, based on his denial of the claims without substantiating proof, is to be reversed.

Cassation No. 103 of 2021 - Personal Status Issued on 05/04/2021

1- Women are granted priority in custody over men, guided by compassion and considering the child''s best interests, under all circumstances and in adherence to the principles of the noble Islamic Sharia, as well as the Maliki and Hanafi schools of thought.

2- Custody is recognised as a right of the child over the parents, constituting one of their joint duties throughout the existence of the marriage. This acknowledgment reflects the progress of Islamic Sharia in safeguarding the child''s well-being, care, and proper upbringing in accordance with the noble Islamic Sharia.

3- Custody post-divorce is contingent upon the criterion of the child''s primary interest, life, and safety.

4- The mother is deemed more deserving of custody due to her kindness, respect, and acknowledgment of her maternal affection, provided she is fit for custody. However, in emergency situations, custody may be transferred to the father.

5- The trial court is vested with the authority to evaluate the child''s interest independently, without further review, as long as its ruling is grounded in valid and sufficient reasons. The court is not obligated to align with the opposing parties in their statements and arguments.

6- The contested ruling is considered to have violated the principles of the noble Islamic Sharia and the law, specifically by obligating the appellant to return the children from their original home in Chad without duly considering the conditions of legal relocation to the original home. The relocation was intended for the purpose of settling down, without causing harm to the mother. The considerable distance between the two countries hindered easy visitation and return on the same day with ordinary means of transportation, especially considering the settling down and enrollment of the children in schools in their original country.

Cassation Nos. 104 and 130 of 2021 - Personal Status Issued on 05/04/2021

1- The significance of the family in accordance with the provisions of Islamic Sharia and the Personal Status Law.

2- Definition of Khul''.

3- Compensation for khul'' equivalent to the recognised dowry..

4- Prohibition of agreeing to waive child support or custody.

5- Imposition of Khul’ and the husband’s entitlement to the dowry in the absence of valid compensation for Khul’.

6- The issuance of a Khul'' ruling contingent upon suitable compensation when the husband refuses Khul'' due to obstinacy and doubtful adherence to God’s limits.

7- Conditions for the validity of compensation in Khul''.

8- The Court issues a Khul'' ruling in exchange for appropriate compensation when reconciliation between spouses is not possible, and discord reaches a point where adherence to God’s limits is doubtful.

9- Rejection of a Khul'' request if the husband''s refusal to Khul'' is not obstinate and there is no proven harm or discord between the spouses.

10- Divorce, in accordance with Islamic Sharia, represents the ultimate stage in preserving the marital bond and the family structure. It is considered a rigorous and definitive solution, implemented in adherence to Sharia controls, intended to sever the marital bond between spouses.

11- Women''s right to seek divorce or Khul'' only when there is a valid reason.

12- Definition of marriage and its purpose.

13- Husband''s responsibility for financial support and providing suitable housing.

14- Determination of Sharia conditions for the housing that the husband shall provide for his wife.

15- Determination of the wife’s rights towards her husband.

16- Determination of the husband’s rights over his wife.

17- Instances warranting abatement of alimony for the wife.

18- Instances permitting violation of the wife''s obligation to live with her husband in the prepared residence and to relocate with him.

19- The contested ruling is considered to have violated the Islamic Sharia and the law. It dismissed the claim of obedience, divorce through Khul'', and separation without substantiating evidence, failing to establish harm, the continuity of an amicable conjugal relationship, or legal discord. Moreover, it neglected to consider the familial context and the children''s status, despite evidence supporting the provision of marital housing, the appellant''s ample financial contributions, and the discharge of responsibilities as the family''s head.

Judgements of the Civil Circuits

Cassation No. 880 of 2021 - Civil Issued on 11/15/2021

1- It is permissible to claim additional compensation for material damages that fall outside the scope of blood money, provided the requisite elements of said damages are substantiated.

2- The prospect of compensation extends to both present and future damages as contemplated within the legal framework.

3- It is permissible to claim compensation for a missed opportunity.

4- The contested ruling mandating compensation to the deceased''s husband for his loss and compensatory measures to her parents for the deprivation of the opportunity to care for them owing to her demise is deemed valid.

5- The res judicata of the criminal judgment is accorded absolute authority, enforceable towards all and before civil courts.

6- The contested ruling is deemed defective as it contravened the law by confirming the blood money completion, in accordance with Law No. 1 of 2019, without adhering to the conclusive criminal judgment specifying the blood money at one hundred thousand pounds.

Cassation No. 757 of 2021 - Civil Issued on 18/10/2021

1- The contested ruling shall be reversed on account of its contravention of Cabinet Decision No. 33 of 2020. This reversal is justified as the appellant expressly specified their requests in the case amounting to 770,000 dirhams. Consequently, such requests are not subject to the provisions of Articles 22/1 and 54 of the aforementioned Decision.

Cassation No. 647 of 2021 - Civil Issued on 20/09/2021

1- The ruling shall encompass elements that provide reassurance to the reader regarding the court''s thorough comprehension of the case''s facts and evidence, illustrating that the court has diligently delved into all facets within its purview to ascertain the truth.

2- It is imperative for the court to meticulously evaluate the defence put forth by the opposing party, particularly when such a defence may alter the court''s opinion on the case and is substantiated by supporting documents.

3- The extent of the court''s authority regarding the attorney''s receipt of his fees, as per the contractual agreement between the attorney and their client.

4- The contested judgment is considered as having erred in the application of the law and displaying a deficiency in reasoning, in rejecting the plea for attorney’s fees as stipulated in the contract between the litigants on the grounds of premature filing.

Cassation No. 222 of 2021 Issued on 10/05/2021

1- The Magistrate of Summary Justice holds the authority to halt new works in cases where they stand to prejudice an established right delineated by statutory provisions, contractual arrangements, or prevailing customary practices.

2- The plaintiff is vested with the right to solicit an inspection, institute a lawsuit for establishment of fact, and petition for the cessation of new works.

3- The Court of Summary Justice is empowered, either upon the request of any party involved or sua sponte, to exercise its authority to relocate to the pertinent premises for the purpose of conducting an inquiry into the matter in dispute. Alternatively, the court may opt to appoint one of its judges for the same investigative purpose.

4- Inspection and expertise are duly recognised as immediate and direct means of proof.

5- Definition of inspection.

6- The trial court''s assessment of the immediacy of peril or valid grounds is conducted with the aim of determining the necessity for initiating legal action.

7- The contested ruling is deemed flawed due to its breach of the right of defence, as the court neglected to examine the appellant''s meritorious defence concerning the cessation of new works, the imminent peril, and the potential loss of the property''s distinctive features. This omission occurred despite the tangible and impending peril faced by the property, as substantiated by official documents issued by the municipality, the Real Estate Registration Department, and the Planning and Survey Department.

Judgements of the Commercial Circuits

Cassation No. 767 of 2021 - Commercial Issued on 28/09/2021

1- The check is grounded upon a valid and extant justification for the obligation to remit its stated value. Those who assert a contrary position to this manifest principle bear the onus of substantiating their claims by adducing evidence that demonstrates the absence of a valid rationale for the negotiable instrument or by establishing the true motive behind its issuance.

2- The determination of the expert''s purview.

3- The trial court is vested with the authority to assess the work of the expert, provided that such assessment pertains to the crux of the dispute and is supported by cogent reasons that elucidate the legal and factual underpinnings leading to the determinations arrived at.

4- The contested judgment is deemed flawed due to a breach of the right of defence, as it summarily dismissed the appellant''s defence asserting that the checks in question were issued as collateral for an amount borrowed from the respondent. The rejection of this defence occurred without a thorough inquiry, notwithstanding the case expert''s corroboration of the appellant''s partial payment through bank account statements.

Cassation No. 50 of 2021 - Commercial Issued on 31/08/2021

1- The trial court is obligated to thoroughly familiarise itself with all the elements of the case, including its evidence, and shall address the pleas and meritorious defences presented by the opposing parties.

2- The determination of the scope of expertise work.

3- Reference on purely legal matters pertaining to the interpretation of contracts and documents is impermissible, as this squarely falls within the court''s inherent jurisdiction.

4- A check is an instrument of payment and represents, at its minimum, a debt instrument empowering the bearer to demand its value directly from the drawee bank. In the event of a bounced check, the signatory and the account holder remain jointly liable for its value, without necessitating proof of the reason for its issuance, unless the debtor successfully establishes discharge of liability, debt expiration, or non-maturity.

5- The contested ruling failed to scrutinise the combined evidence related to the appellants'' entitlements as contained in the checks signed by the representatives of the respondents. This pertained specifically to their newly assumed responsibilities as delineated in a subsequent agreement, distinct from the initial agreement, and was substantiated by relevant supporting documents, on the basis of the reversing ruling, which underscored the significance and imperative nature of investigating such evidence to unveil the intentions of the opposing parties and establish their legal relationships and obligations. Additionally, the contested ruling exclusively relied on technical expertise to substantiate its conclusion, overlooking the legal validity attributed to the check as a payment instrument and a presumption for proving indebtedness.

Cassation No. 453 of 2021 - Commercial Issued on 31/05/2021

1- Prerequisites for the feasibility of seeking judicial receivership.

2- The party with a vested interest in the asset may request a receivership proceeding if there are reasonable grounds to apprehend an imminent threat that the asset will persist in the hands of its current possessor.

3- The trial court possesses the authority to extract substantive reasons for imposing or refraining from imposing receivership solely from the presented documents, without further review. This is contingent upon the court confirming the veracity of the dispute and the presence of grounds for imposing receivership as an interim measure, based on the documents that the opposing party has presented and acted upon.

Cassation No. 397 of 2021 - Commercial Issued on 31/05/2021

1- The trial court is obligated to base its ruling on elements derived from documented facts.

2- The ruling shall incorporate elements that reassure the reader that the court meticulously examined the evidence and documents presented to it, leading to the establishment of facts in the case.

3- A ruling is deemed deficient in its reasoning if it fails to evaluate the significance of the documents and evidence in the case or neglects to address the meritorious defence raised by the opposing party.

4- The contested ruling is subject to reversal as it ordered the return of the seized amount on the premise that the debt was contingent and did not reach the level of a writ of execution. This was done without addressing the appellant''s meritorious defence regarding its right to sell the ship in question, a subject of the lawsuit, for the settlement of a preferred maritime debt that was conclusively proven and held higher priority than the respondent''s debt. This right was derived from a bill of lading and a final ruling affirming its entitlement to the amount, coupled with the establishment of provisional seizure on the ship''s price.

Cassation No. 236 of 2021 - Commercial Issued on 25/05/2021

1- The determination of the nature of declaring bankruptcy.

2- The classification of a merchant encompasses all individuals engaged in professional trade activities.

3- Professionalism in business is not presumed.

4- A general partner in a commercial company is considered a merchant, and the declaration of bankruptcy for such an individual is permissible.

5- The Federal Supreme Court is authorised to supplement any potential deficiencies in the contested ruling, provided that the ultimate conclusion it arrives at is legally sound and valid.

6- The appellants, who are partners in the company declared bankrupt due to a financial crisis necessitating the sale of assets to settle debts, do not meet the conditions for bankruptcy. This is because the appellants are not general partners, and they are individually liable for the company''s debts with their personal assets, thereby not being classified as merchants.

Petition No. 11 of 2021 - Commercial Issued on 25/05/2021

1- Fraud herein refers to actions undertaken by the opposing party with the deliberate intent to deceive the court. Such actions persist and are insisted upon to a degree that implies their validity, thereby misleading the court and influencing its opinion.

2- The fraud forming the basis for the petition for review shall be attributable to the respondent or their representative, exert an influence on the court''s opinion, and be concealed by the petitioner.

3- It is untenable to allege fraud on the part of the respondent that impacted the contested judgment, against which the petition for review was filed. This is evidenced by the petitioners being duly notified at the lawyer''s office, despite it not being their elected domicile. Substantiation has been provided establishing the lawyer''s appointment by the representative of the deceased''s heirs during the cassation stage. Consequently, the lawyer''s office is deemed their elected domicile for the service of requisite documents in the ongoing litigation to which he was assigned.

4- The objection to the binding force of res judicata, as acquired by the contested judgment, is deemed invalid as a ground for seeking review. This objection deviates from the specific circumstances outlined in clauses 1, 2, and 3 of Article 169 of the Civil Procedure Law.

Cassation No. 163 of 2021 - Commercial Issued on 06/04/2021

1- The ruling shall be grounded upon explicit and sufficient reasons that manifest the scrutiny by the presiding judge of the prevailing dispute and the court''s examination of the evidentiary submissions, aimed at ascertaining the veracity of the matter at hand. It is imperative that the legal evidence relied upon is rooted in the truth as ascertained and believed by the court, and that it logically leads to the determinations arrived at by the court.

2- The ruling shall incorporate elements that instil confidence in the reader, affirming the court''s comprehension of the case''s facts and evidentiary facets. It shall explicitly delineate that the court, having thoroughly considered the evidence presented, predicated its decision on said evidence, elucidated the rationale justifying its perspective, fully exercised its jurisdiction to unveil the right incumbent upon it, and employed all available means to arrive at what it deems to be the correct determination. Failure to adhere to these prerequisites renders the judgment susceptible to deficiencies in causation.

3- The contested ruling cancelled the appealed payment order, which mandated the respondent to remit the sum of nine hundred thousand dirhams to the appellant, alongside legal interest at a rate of twelve percent. Furthermore, it declined to reissue the order, substantiating this decision on the evidentiary record and the completed expertise ordered by the court. The court, in its determination, noted that the subject check was executed in blank as a form of collateral, alongside other checks intended for the residential studio''s rent, without conducting a thorough inquiry into a statement provided before the case expert. The statement asserted that the check was issued in consideration of funds received by the respondent from the appellant''s proprietor in connection with the conveyance of property ownership. Consequently, the judgment is deemed to be afflicted with deficiencies in reasoning.

Judgements of the Administrative Circuits

Cassation No. 802 and 831 of 2021 - Administrative Issued on 17/11/2021

1- Condition for licensing the use of the trademark.

2- The appellant''s request to annul the trademark was not granted, as it had entered into an agreement with the respondent to license the use of its name and trademark. However, the documentation establishing the registration and public acknowledgment of this licence was not substantiated by legally acceptable means.

3- The plea for the removal of the trade name from official records is not approved, given the existence of an agreement between the appellant and the respondent that permits the use of the trade name as outlined in the franchise contract binding the two parties.

Cassation No. 62 of 2021 - Administrative Issued on 26/5/2021

1- The appellant, a non-national employee, is entitled to an academic degree bonus at the master''s rank from the date of the appellant''s decision to grant such a bonus. This entitlement arises from the fulfillment of all disbursement conditions and the absence of evidence regarding the cancellation of said decision.

2- The appellant, a non-national employee, is entitled to a nature-of-work allowance, notwithstanding his suspension by the respondent. This is due to the prohibition against prejudicing any established privilege or entitlement of an employee, as per Article 81 of the respondent’s Personnel Affairs Regulations. The nature-of-work allowance has become an acquired right for the appellant.

3- The legitimacy status of an administrative decision is contingent on specific conditions.

4- The decision to terminate the appellant''s service as an executive secretary, issued by the Respondent''s General Director, is deemed deficient in reasoning. This is in violation of Article 62 of the Respondent’s Personnel Affairs Regulations, which specifies that the individual responsible for the appointment shall also be responsible for the termination.

Cassation No. 212 of 2021 - Administrative Issued on 26/05/2021

1- The court is obliged to incorporate elements within its rulings that provide assurance to the reader regarding a thorough examination of the case''s facts and evidence, the rationale justifying the adopted opinion, and the source from which the ruling is derived.

2- The court is mandated to meticulously review each defense presented by the opposing party and is required to render a definitive decision on it, with such a determination being one of the permissible consequences.

3- The department retains the discretion to select an appropriate penalty for each individual case, provided it refrains from abusing its authority.

4- Prior to imposing a penalty on an employee, the department is obligated to conduct an investigation aimed at identifying the job violation, establishing its veracity, and allowing the employee an opportunity to present their statements.

5- Despite the contested ruling annulling the decision to dismiss the respondent, the legitimacy of the dismissal reason is acknowledged, as the respondent breached job conduct rules in dealings with superiors and members of the Disciplinary Council during its session. The decision is supported by the minutes of the investigations conducted by the Violations Committee of the appellant, which confirmed the respondent''s failure to attend work meetings, the affirmation of his executive officer regarding the respondent''s lack of work performance, the implementation of a sensitisation plan to integrate him into work teams, his non-compliance with it, and negative behaviour in his interactions with colleagues. Consequently, the contested ruling is to be reversed.

Cassation No. 18 of 2021 - Administrative Issued on 17/03/2021

1- The contested judgment is deemed to have erred in the application of the law by deeming the appellant''s claim, concerning the demotion of her job grade, as inadmissible, despite her timely submission within the stipulated sixty-day period following the issuance of the Objections Committee''s decision.

Conflict of Jurisdiction

Cassation No. 4 of 2021 - Conflict of Jurisdiction Issued on 26/07/2021

1- Conditions for a conflict of jurisdiction to arise.

2- The Federal Supreme Court''s jurisdiction to decide on conflicts of jurisdiction aims at resolving disputes arising from the implementation of final and contradictory rulings issued by various authorities.

3- The contradiction of a final ruling is only materialised when the contested ruling contradicts a previous ruling that has acquired the force of res judicata. This typically occurs in a matter where a dispute has arisen between the two parties involved, and the truth of the matter has been conclusively established in a prior ruling.

4- The Federal Supreme Court''s jurisdiction to render a decision on an enforceable ruling is invoked based on the contradiction between the ruling that affirmed the court decision issued by Dubai Civil Courts in Case No. 132 of 2018 and the ruling issued by the Sharjah Federal Court of First Instance in Case No. 3141 of 2018. Both rulings pertain to the validity and enforceability of a sales contract, constituting the common subject matter between them. Importantly, both conflicting rulings have attained finality, making it within the purview of the Federal Supreme Court to address the inconsistency between them.