Law of Evidence Concerning the Civil and Commercial Transactions in the UAE Number 35 of 2022

28 Dec, 2022
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Ahmed Gabr

Legal Advisor, Elnaggar & Partners

The Law of Evidence is the Law that regulates the methods of presenting proofs, Evidence, and supportive documents of a claim or defense.

It does not stop here; it also expands to interpret the definition of what could be considered Evidence and what is not, what is acceptable Evidence, and what are the possible ways to assume a claim or prove a defense.

Did you know that there are more than 11 types of Evidence proof that you can use as a lawyer against your opponent?

Although you can feel overpowered by the volume of documents and proofs in your bag, have you ever judged your client in a weak position for not having any documents that support his claim or defense?

If you think that documents and papers are the only way to prove a claim or defend a position, then you must read this Article, it will change a lot and might … be a reason for a successful judicial round!

In this article, we will be exposing the most significant ways of proving claims and the most acceptable ways of supporting a claim by showing and navigating the legitimate ways that are regulated by the Law.

General Rule of Evidence.

In the field of civil and commercial legal disputes, all parties are taking one of two positions – as a general concept of a claim – either a Claimant or a Respondent.

The General Rule of Evidence is:

‘The Claimant has to prove his claim and the Respondent has to negate it’[1]

Based on this rule, the sacred task of each party in any claim has been determined, and the claim turned into a football match by throwing the claim over and over between the parties, in this scene, the claimant throws a claim against the respondent who has to throw it back against the claimant, negate it, refuse it and prove his innocence.

If the respondent failed to do so, then the results will be decided by the claimant. Unless the claimant had a procedural fault, the respondent’s chances will be zero, and that will cost them the entire round.

On the other hand, if the respondent fought back in the right direction and utilized each and every piece of evidence they have in their hands, there will be a chance that the claim will reside in the claimant’s goal net, causing them severe loss of a claim, just because the respondent representative knows how to utilize his skills through this magnificent law.

Documents are the most common way of evidence, in all matters, one written document could beat hundreds of speeches.

However, verbal acknowledgment, interrogation, witnesses, experts, decisive oath, electronic evidence, previous judgments and clues, and court inspection are all valid ways to prove or negate claims and defences.

Short Notes about the Law of Evidence

Verbal Acknowledgment

Verbal acknowledgment occurs when one of the parties in an ongoing claim, requests the other party to acknowledge or reject a piece of evidence submitted to the court.

Or, during an ongoing dispute, one of the parties decides – out of waking consciousness – to admit a piece of evidence during any of the hearings.

However, not all acknowledgments can be taken into consideration as final admission, meaning to say that the conditions and circumstances of the case itself can negate the acknowledgment of the other party, whether it was admitted in good or bad faith, thus, such admission must be aligned with the nature of the events concerning the ongoing claim.

Acknowledgment could be provided to the court through written or verbal admission, and once it’s done, and once approved by the judge, it can’t be retreated or denied in later stages.

Any of the parties can interrogate the other, whether by a direct motion submitted by any of the parties that involve a court order or upon the judge’s direct order that involves no requests or motions.

Perhaps Common law Jurisdiction Lawyers can relate to this part since its commonly used in the common law jurisdictions more than GCC or MENA.

Additionally, the party who receives such a question can object to it, refuse it and deny the relevance of the question to the case matter considering the circumstances of the ongoing litigation.

Written Evidence

The written evidence can be an official piece of document or an unofficial piece of document, the official document is the document issued by or through an official governmental organization.

Any party of ongoing litigation has the right to submit any written evidence that deems fit to them, and the other party has the right to refuse it, the court, has the right to audit the documents provided therewith, refuse it and deny it, depends on the circumstances of the case and how this document is effective in showing justice.

In case one of the parties denied the documents provided by the other party, they have to prove to the court that this document is either forged or doesn’t belong to them by any meaning, failure of doing so will lead to rejection of their motion and the documents will be approved by the court.

Electronic Evidence

Electronic evidence is the evidence claimed through any electronic channel, likewise as email, electronic signatures, phone call records, online meetings records, or any type of electronic proof.

It adopts the same regulations as the Written Evidence, and it follows the same rules of submission and rejection before the court.

To better understand, there is official electronic evidence and unofficial electronic evidence, and the official electronic evidence is the one issued by or through an official governmental organization.

Witnessing

Also witnessing a scene could be very helpful in terms of evidence, sayings before the court from one or more witnesses –which align with Islamic Sharia Rules – could be considered as the straw that broke the camel’s back, witnessing before the judge can burn hours of work, can waste true evidence and can lose a stronghold position.

Therefore, witnessing has requirements and rules that put a limit to this ultimate power card, for the one who is accepted to witness before the court, his/her age must be 15+, has no mental defects, and must repeat the oath before saying anything related to his witness.

The court has the right to invite whoever has met the litigation subject, no one can deny or reject to attend before the court for this purpose, AED 1,000 to AED 2,000 fine will be applied on the first summon, second summon fines can reach AED 10,000 in case of absence without a valid reason.

Oath

An oath can also be one of the pieces of evidence ways that used between the litigation parties, whereby each party has the right - if the court granted his request – to plead the oath before the court on one or more of the matters.

Oath is either from the claimant against the respondent or from the respondent against the claimant, considering that the first oath can be returned to the one who initiated it, in this case, the other party has no chance but to perform the oath.

The oath will be considered once after the performer says the official oath according to his beliefs and religion, then his sayings in the matter will be considered.

Expert

Experts are considered as the right hand of the judges, and the torch of the judges on irrelevant matters of law.

For instance, a construction dispute over architectural finishing works will involve some particular events that led to the dispute, the judge, will have no power over deciding this matter, and that will be the task of the expert.

An expert can decide on matters that have relevance to finance, architecture, construction, or any matters that involve a legal dispute, the expert report is used by the judge to complete the picture and to guide the judge to the best results so that the case can be resolved fairly and justice.

Although expert reports are very important since it decides who will score, the judge has the full right to deny it and the parties have the full right to comment, deny and even ask to change the expert for a better resolution.

Eventually, the law of evidence is very important to be taken into consideration for all sectors, corporates can know through this law what documents are important to be kept and what documents will have the most powerful appearance before the court.

In litigation, we can say that the law of evidence is the nerve of every single step taken towards a successful litigation outcome.

 

Ahmed Gabr

Legal Advisor
Elnaggar & Partners
 

Reference:

[1] Law of Evidence number 35 of 2022 – Article 1.1.

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