- Every litigant, regardless of the status of the case, may tender the decisive oath to his opponent, provided that it is related to the person to whom it is tendered, and if the latter was not personally concerned therewith, then it shall focus on his knowledge thereof.

- The Judge may refuse to allow the decisive oath to be tendered in case the litigant tendering it does so vexatiously or in case of violating the public policy and morals.

- Lacking substantiation.

Whereas, in the facts – as apparent in the contested judgment and the documents – the Plaintiff – Respondent – has filed lawsuit no. 2048 of 2018, commercial plenary Sharjah, to compel the Defendants – the Appellants – to jointly pay the amount of AED 2135000 with an annual interest of 12%, and stated that, as a result of commercial transactions therebetween, the Second Defendant has issued cheques at the value of the debt and such cheques had non-sufficient funds when presented for payment, and has filed a report in this regard, and the drawer was sentenced with a final penal judgment, thus the lawsuit was instituted; upon the deliberation of the Court of First Instance concerning the delegation of an accounting expert, and when the expert accomplished the task entrusted thereto and both parties have submitted their feedback on his report, Sharjah Federal Court of First Instance decided on 27/12/2018 to compel both defendants to jointly pay the amount of AED 2135000 to the plaintiff with an annual interest of 5% from 21-3-2018 until the payment is fully settled; the defendants lodged Appeal no. 163 of 2019, and upon deliberation, the Court of Appeal decides to reassign the duty to the delegated expert to consider the objections of the Appellants, and following the response received from the parties on the supplementary report, Sharjah Federal Court of First Instance rejected the appeal on 23/10/2019 and confirmed the appealed judgement.

The Appellants have refused the ruling; thus, they filed an appeal in cassation, and presenting it to Council Chamber, the Court found it suitable for hearing, and it was considered as indicated in the records of the meetings, and a sentencing hearing was set therefor.

Whereas the Appellants object to the contested judgment for violating the law and breaching the right of right: they have asked to tender the oath to the Respondent, as they have the right to such oath and as it is related to the subject-matter of the case, however the Court has refused it with an unjustified reason, thus its judgement shall be reversed.

Whereas this objection is apposite, since it is prescribed in Article 57/1 of the Evidence Law of 1992 that every litigant may, regardless of the status of the case, tender the decisive oath to his opponent, provided that the fact, subject-matter of the decisive oath is related to the person to whom it is addressed, and if the latter was not personally concerned therewith, then it shall focus on his knowledge thereof; despite this, the Judge may refuse to allow the oath to be tendered if the litigant tendering it does so vexatiously, and this means – based on what is prescribed – that tendering the decisive oath is a right to the litigant and the Court shall respond to the request of tendering it when it meets all conditions in terms of not violating the public policy or morals and it shall be based on a fact related to the party to whom it is tendered; the person tendering the oath shall accurately demonstrate with clear expressions, the facts for which the oath shall be taken by the opponent; this oath shall be decisive for the main matter that leads to a negative or positive judgment on the demands, and the Judge may not use his right to prevent the tendering of such oath unless it was proven – based on valid reasons supported in the documents - that the party requesting to tender the decisive oath does so vexatiously.

Such being the case, and whereas it is apparent in the documents that the Appellants pleaded before the competent court that they settled the price of the mobile phones purchased from the Respondent with the cheques, subject-matter of the case; said price was settled by transfers and payments made by cheques for the respondent, and such cheques have numbers and values as determined in the statement of account of the Appellant at Abu Dhabi Islamic Bank, and as indicated in the cheques cashed by the Respondent from the same Bank and as per the payment receipt and deposits of the Second Appellant; in case of not taking said documents into consideration, the Appellants asked the respondent to take the oath to confirm that he did not receive any amounts; the court has agreed with the delegated expert stating that the documents used as a proof by the Appellants are not considered as an evidence as they do not show that the three cheques, subject-matter of the claim, were disbursed; the Court refused to allow the decisive oath to be tendered to the Respondent on the ground that the penal sentence established the fact of the matter of the cheques, which is a response that fails to meet said demand and violates the provisions of Jurisprudence and the law; The Court’s refusal was based on the Appellants’ plea on making the alleged payment and their inability to provide evidence, and as the documents submitted thereby are considered by the Court as not related to the plea, this confirms that they have failed to provide a proof; Furthermore, the request to tender the oath to the Respondent to deny the payment necessitates maintaining their right in such oath, so if the Respondent takes the oath then he shall be eligible to his right; in case he refrains from tendering the oath or returns it back to them, they shall take the oath so he loses his right and the Appellants become discharged;