Defense memorandum in the appeal of the school fees lawsuit - for the appellant
Court ...............................
Defense warrant
Mr. / As: Appellant
Against
Mrs. / As: Appellant
And that is in Appeal No.
The facts: -
Where the appellant held the litigation banner against her father - the appellant, and that was according to a newspaper deposited with the clerk of the family court on / / in which she demanded that the appellant pay her an amount of "four hundred pounds" in exchange for tuition fees for years even though it was actually paid to the American University; And that is based on the basis of saying that her father refused to pay for the tuition fees for those years, and since the appellant had adhered to the claim that her mother had borne the burden of the tuition fees, which the appellant refused to pay, the study period was prolonged, starting from until and where the case was discussed in the sessions until it was guided The court of the first degree to its appealed verdict on the present appeal and the judge pronounced it “The court ruled: - First / obligating the defendant to pay the plaintiff an amount of one Egyptian pound,” the value of her school fees for the academic years from / to / / and obligated him to pay expenses, and the amount of seventy-five pounds in return for attorney fees.
Whereas this ruling was similar to the error in applying the law and its interpretation, and corruption in inference in a manner that necessitates its abolition, for the following reasons: -
The first reason: - Lack of causation and corruption in inference and a breach of the right of defense, based on the following:
Counselor / Mustafa Haraja explains this argument in his book The Judicial Encyclopedia of Civil and Commercial Pleadings, Part 1, p. 1431 and beyond. The deficiency in the factual reasons for the verdict leads to the nullity of the verdict - indicating that it is an appreciation of the great importance of causing judgments and enabling the second instance court to stand on The extent of the validity of the foundations on which the appealed judgments were based, then the Court of Cassation after that to monitor the integrity of the application of the law on the true facts. The legislator required the court actions to include in their judgments the defenses and requests made by the litigants and the substantive defense they brought so that this and that can be assessed in light of reality The correct opinion in the lawsuit then includes the reasons that justify the opinion that it has directed towards it, and the legislator has arranged for the deficiency of factual reasons for nullity.
In this regard, the Court of Cassation ruled - that the reasoning of the judgment is nothing more than a complete statement of the aspects of the request that the court dealt with in the case and the aspects of defense therein, and that what it has decided is based on what has a fixed origin in terms of reality or law, so the judgment is not defective if its reasons are explicit in this. The matter, whether brief or detailed, as long as both of them are sufficient for the purpose and that these reasons indicate that the court has obtained an understanding of the reality in the case from the documents and data presented to it and that the truth that it has extracted and is convinced of has established its evidence required by the law and that will lead to the conclusion that ended To make it up.
Appeal No. 18249 of Judicial Year 76 - Technical Office - Civil - Year 59 - P. 425
By releasing what preceded the present appeal, it becomes clear before your honorable justice that the court of first instance in the case appealed against has taken its judgment in the present appeal, and it has carried its judgment guided in that and according to what it has concluded the reasoning of its ruling on which it relied on the following: -
(Deficiencies in causation and corruption are mentioned in the inference ............................)
Likewise: - For the safety of judgments, the law required that it provide an adequate realistic response to these defenses and on the essential aspect of the defense, in order of nullity on the penalty for its default.
(Appeal No. 102 of 1960 - Session 18/12/1950).
Whereas the basic principle for a person is the innocence of the responsibility and its preoccupation is an objection, and the fundamental rules - in Islamic law and Sharia - are that: “The evidence is for the one who claims, and the oath is on the one who denies.”
On the authority of Ibn Abbas, may God be pleased with them both, that the Prophet, may God’s prayers and peace be upon him, said: “If people are given their prayers, people would be called men’s blood and money, but the evidence is on the plaintiff.” Narrated by Al-Bukhari and Muslim.
Al-Bayhaqi has a saheeh isnad: “The evidence is on the plaintiff, and the oath is on the one who denied.”
The Egyptian Court of Cassation rulings have repeatedly stated that: “The first article of the Evidence Law No. 25 of 1968 states that the creditor must prove the obligation and the debtor must prove his disposal. The principle is the release of the liability and its preoccupation is a casualty, and the burden of proof falls on the shoulders of the person who is claiming a proven disagreement in the first place. Or the defendant. " (Civil cassation in Appeal No. 916 for the Judicial Year 48 - Session 12/26/1983 Technical Office Group - Year 34 - Part Two - Page 1098 - Paragraph 3).
As a result of the aforementioned, it becomes clear to the court that the verdict has corrupted the inference and the failure of causation which leads to the nullity.
The second reason: - The error in applying the law, its interpretation, and the proven innocence of the appellant from the right subject to the current dispute: -
By violating the law - as one of the grounds for challenging - the judge’s denial of the existence of an existing legal rule, or his assertion of a non-existent legal rule, whether this rule is a procedural or substantive rule.
A mistake in applying the law - as one of the grounds for appeal - also means the application of a legal rule to a fact that does not apply to it, or the refusal to apply a legal rule to a fact that applies to it, and the error in this regard is related to the court’s adaptation of the facts, so the judge who makes a mistake in the adaptation makes a mistake in applying the legal rule The applicable law is wrong twice, once because it applied a non-actionable rule, and the second because it excluded the application of a legal rule that was applicable.
The reference: error in applying the law as a reason for challenging the cassation in light of the judiciary of the Court of Cassation
Whereas, the court of first instance was guided according to what its ruling stated, and before the verdict was pronounced, and in implementation of the law, several people
