Written Evidence – Part 1 PDF

Written Evidence – Part 1 Dr. Omar Alhyari Faculty of Business and Law 1  Official document: document in which a public servant records what he has done or what he has received from those concerned, in conformity with the legal conditions and within the limit...

Written Evidence – Part 1 Dr. Omar Alhyari Faculty of Business and Law 1  Official document: document in which a public servant records what he has done or what he has received from those concerned, in conformity with the legal conditions and within the limits of his authority and jurisdiction (For example, Notary Public). If a document does not fulfil the above conditions, it shall have the binding force of an informal document whenever the concerned have affixed their signatures (according to many scholars, initials not sufficient), seals, or fingerprints thereto. 2  The official document shall be enforceable towards all as regards matters therein recorded unless it is legally established to be a forgery. 3  If the original of the official document exists, its official copy shall constitute evidence to the extent that it is a true copy of the original. The official copy shall be deemed a true copy of the original, unless this is contested by any of the concerned parties, in which case the copy shall be checked against the original. If the original of the official document is not found, the official copy shall have the binding force of the original, whenever its external appearance does not allow for doubt as to its conformity with the original. Other copies shall be considered for merely indicative purposes. 4  An informal document shall be considered to originate from the person signing it and shall constitute evidence against him, unless he explicitly denies the handwriting, signature, seal or fingerprint ascribed to him, or his successor denies that or denies knowing that the handwriting, signature, seal or fingerprint are those of the person from whom he has received the right (if denied, then proof will be needed). Whoever has an informal document invoked against him and discusses it before the supervising judge or the court, as the case may be, may not subsequently deny its authenticity or maintain that he was unaware that it was issued by the person from whom he has received the right. 5  Correspondence that is signed or that is proven to be ascribed to its sender shall have the binding force of an informal document in evidence, unless the sender proves that he did not send the letter or did not assign anyone to send it. 6  Traders’ electronic or normal ledgers shall not constitute evidence against non- traders. The data therein recorded as to the supplies made by the traders shall, however, serve as a basis that permits the court to tender the complementary oath to either of the parties. Orderly obligatory ledgers, whether electronic or paper, shall constitute evidence for the trader holding them against his trader opponent, if the dispute concerns a business matter. This binding force can be forfeited by counter-evidence and such evidence may be taken from the opponent’s orderly ledgers. The obligatory ledgers, whether electronic or paper, shall constitute evidence against the trader holding them as regards the facts upon which his opponent, trader or otherwise, has based his claim. In this case, the entries that benefit the holder of the ledgers shall likewise constitute evidence in his favour. If either of the trader litigants bases his claim on the ledgers of his opponent, whether electronic or paper, and agrees in advance to be bound by what is therein recorded, and the litigant refuses without justification to produce his ledgers or to allow access thereto, the court may tender the suppletory oath to the litigant who has based his claim on the ledgers in support of his claim. 7  Private papers, even if recorded electronically, shall not constitute evidence against whomever has issued them except in the following cases: 1- If he explicitly states therein that he has collected his debt. 2- If he explicitly states therein that he has intended for what is recorded therein to serve as a deed for whomever it establishes a right in their favour. In both cases, if what is mentioned is not signed by the person who has issued it, he may prove the opposite by all means of proof. 8  The creditor's annotation of a debt deed in his own handwriting but without signing it to the effect that the debtor is discharged shall constitute evidence against him until he proves the contrary. 9  The litigant may request the supervising judge or the court, as the case may be, to require his opponent to submit any electronic or paper document he has in his possession that is material to the case in the following cases: a- If the document is joint between him and his opponent. A document shall be considered as joint in particular if it is for the benefit of both litigants, or if it establishes their mutual obligations and rights. b- If his opponent bases his claim thereupon in any stage of the proceedings. 10 The request shall not be accepted unless it satisfies the following elements: a- The descriptions of the document, and its content with as much detail as possible. b- The evidence and circumstances supporting the litigant's possession thereof. c- The fact evidenced by the document, and the reason for requiring the litigant to submit it. 11 If the litigant admits that the document is in his possession or remains silent, or if the person making the request proves the validity of his request, the court shall order that the document be submitted on the date it specifies. If the litigant refuses to submit the requested document after being granted a one-time grace period, the copy of the document submitted by the person making the request shall be considered an authentic true copy of the original. If he has not submitted a copy of the document, the court may accept the statement of the person making the request regarding the form and the content of the document. 12 If the litigant denies the existence of the document and the person making the request fails to provide the court with adequate proof of the validity of his request, he may request the court to tender the oath to his opponent that the document does not exist, that he has no knowledge of its existence or its location and that he has not hidden it or neglected to search for it to prevent the person making the request from using it as evidence. If the litigant refuses to take the oath and does not tender it back to the person making the request or if he tenders back the oath to the one making the request and he takes the oath, the copy of the document submitted by the person making the request shall be considered an authentic true copy of the original. If he has not submitted a copy of the document, the court may accept the statement of the person making the request regarding the form and content of the document. 13  The court or the supervising judge, as the case may be, may sua sponte or at the request of one of the litigants, and during the proceedings even before the court of appeal, decide the following: 1- To bring in a third party to require them to submit a document in their possession. 2- To request a document from a public authority or a copy thereof certified to be a true copy of the original if that is not possible for the litigant. The court or the supervising judge, as the case may be, may request the public authority to submit in writing or orally the information relevant to the case which it has in its possession. 14