Written Evidence Part 2 PDF

Written Evidence – Part 2 Dr. Omar Alhyari Faculty of Business and Law 1  A claim of forgery may be made as regards official and informal documents. Handwriting, seal, signature or fingerprint may, however, be denied only as regards informal documents. It sha...

Written Evidence – Part 2 Dr. Omar Alhyari Faculty of Business and Law 1  A claim of forgery may be made as regards official and informal documents. Handwriting, seal, signature or fingerprint may, however, be denied only as regards informal documents. It shall be incumbent upon the litigant claiming forgery to prove his claim. However, if a person denies issuing an informal document or his successor or representative denies that or denies knowledge thereof, the burden of proving that it was issued by him or his predecessor shall be incumbent upon his opponent. If the litigant admits the validity of the seal affixed to the informal document but denies affixing it thereto, he shall make a claim of forgery. 2  If the person who has an informal document invoked against him denies his handwriting, signature, seal or fingerprint, or if his successor or representative denies that or denies knowledge thereof, and the other litigant continues to hold on to the document, and if the document is material to the dispute and the facts and documents of the case are not sufficient to satisfy the court as to the validity of the handwriting, signature, seal or fingerprint, the court shall order an investigation by comparison or by hearing witnesses or both. The court shall hear testimony only in respect of the establishment of the writing, signature, seal or fingerprint on the document. By comparison: The court or the supervising judge, as the case may be, shall schedule a date for the litigants to appear and present the documents in their possession for comparison and to agree (i.e. agreement by litigants) on those valid for this purpose. 3 If the litigant assigned with the burden of proof fails to appear without an acceptable excuse, the court may decide to forfeit his right to proof. If his opponent fails to appear, the court may consider the papers presented for comparison valid for this purpose. The party challenging the authenticity of the document shall appear in person to provide a specimen of his handwriting at the scheduled date. If he refuses to appear without an acceptable excuse, or if he appears but refuses to provide a specimen of his handwriting, the court may rule the authenticity of the document. In the event that the litigants do not agree on the documents that are valid for comparison, only the following shall be accepted: 4 a- The handwriting, signature, seal, or fingerprint affixed to formal documents. b- The part of the document under investigation whose authenticity is acknowledged by the litigant. c- The litigant's handwriting, signature or fingerprint which he affixes before the court. d- The handwriting, signature, seal or fingerprint affixed to ordinary documents that are proven to be ascribed to the litigant. If the whole document is ruled to be authentic, the person who has denied it shall be fined not less than (3,000) three thousand dirhams and not more than (10,000) ten thousand dirhams, without prejudice to the right of the concerned party to claim compensation. No fine shall be imposed on the successor if his denial is limited to denying knowledge. 6  A claim of forgery may be made at any stage of the proceedings. The claimant of forgery shall indicate all the grounds upon which the alleged forgery relies. If the claim of forgery is material to the case and the facts and documents of the case are not sufficient to satisfy the court as to the authenticity or forgery of the document, investigation (by comparison or by hearing witnesses or both) shall be ordered by the court. The claimant of forgery shall deliver to the case management office the allegedly forged document if it is in his possession or its copy that is communicated to him. If he refuses to deliver the document or its copy, as the case may be, his right to claim forgery shall be forfeited, and such claim shall not be accepted from him hereafter. If the document is in the possession of the opponent, the court may instruct 7 him to deliver it forthwith to the case management office or it may order its seizure and deposit. If the opponent refuses to deliver the document and the court is unable to seize it, the document shall be considered non-existent and this shall not preclude its seizure hereafter if it becomes possible. Whoever claims forgery of a document may waive his claim before the end of the investigation procedures, and no claim of forgery of the document shall be accepted from him after his waiver. The party against whom forgery is claimed may terminate the investigation procedures regarding the forgery, at any stage thereof, by relinquishing the allegedly forged document. In this case, the court may order the seizure or filing of the document if the claimant of forgery so requests for a legitimate interest. 8 If the claim of forgery of the document is dismissed or the right of proof of the claimant of forgery is forfeited, he shall be fined not less than (3,000) three thousand dirhams but not more than (10,000) ten thousand dirhams, without prejudice to the right of the concerned party to claim compensation. The claimant of forgery shall not be fined if he waives his claim before the end of the investigation procedures, unless it is proven to the court that he intended to deceive his opponent or to delay adjudication of the case. No fine shall be imposed on the claimant of forgery if some of his claims are proven. If it is proven that the document is forged, the court shall refer it to the Public Prosecution, together with copies of the related minutes, to take the necessary measures. 9  Whoever fears the invocation of a forged document against him may sue whomever has such document in his possession and whomever benefits therefrom, pursuant to the litigation procedures. 10  In the cases that require evidence in writing, it shall be permissible to replace it by judicial admission, conclusive oath, or by “the principle of proof in writing” that is supported by other means of proof. 11 “the principle of proof in writing” means any writing issued by the litigant that would make the existence of the alleged act a near possibility. For example, a document relating to a debt written by the borrower’s hand but unsigned. Another example, if a person is present during the inventory of estate of a deceased person and does not mention that he lent money to the deceased, and signs as a witness the report of the inventory which includes a statement of the debts owed by the deceased without including his debt, and then after that he files a lawsuit to claim the debt. 12  The court may accept as evidence a paper or electronic document issued outside the UAE and certified by the competent authorities in the State of issue and the competent authorities in the UAE, unless it is contrary to the UAE public order. 13