According to the Law of Evidence in Civil and Commercial Transactions Federal Law No. 10 of 1992 (the Law), the burden of proof is on the claimant which is an established principle and also stated under Article 1 of the Law. The law provides that the claimant or person claiming the fact is duty-bound to prove his claim and the defendant shall have the right of denial.
The first proofs of evidence to substantiate the facts are the official and/or customary documents. It is also established in law that official or public documents, being created by public officials are deemed to be proof against all disputants, including what is proven unless falsified by methods stipulated by law. The customary document, being a document created by parties, is proof among the parties only, but for others, it shall not be deemed evidence, except for certain conditions. For instance, the official documents may create right in rem and a customary document may create only right in personam.
The basic principle of evidence is that the customary document shall be deemed to be issued by those who signed unless he expressly denies his handwriting, signature, stamp, or fingerprint. However, if he cites the document in court or replies to it without any objection or relies on such document in court in favor of the document, he will be considered to have accepted the authenticity of a document or he cannot deny the admissibility of the document. Further, if there is any forgery he has to challenge the forgery of the document. If the opponent declared the authenticity of the stamp used in the customary document but denied impress, he shall use the right to challenge for forgery.
It is imperative to note that customary document's origin being general and not official it is sufficient to just deny for excluding the effect of the customary document, but it may not be sufficient in all or certain cases. In such cases, the challenge for forgery to deny such forged documents is essential and one must prove forgery in the documents.
* The definition of forgery in documents:
Forgery is defined under Article 216 of the Federal Penal Code:
Article 216: "The forgery of a written instrument is to alter its reality in one of the manners described herein below, so as to cause prejudice, with the intention of substituting the false for the genuine instrument." The seven methods stated to be considered as committing the crime of forgery are as follows:
1- "To alter a genuine instrument, whether by adding, or removing or changing any of its written parts, numbers, marks, or pictures.
2- To falsely sign or place a forged seal, or to alter a genuine signature, seal, or imprint.
3- To obtain by surprise or by fraud the signature, seal, or imprint of a person who ignores the contents of the instrument or who has not validly given his consent thereon.
4- To make falsely or imitate an instrument and attribute it to another person.
5- To fill a blank paper that is signed, sealed or imprinted, without the approval of the person who has signed, sealed, or imprinted it.
6- To assume the name of another person or to substitute it in a document that has been prepared specifically to prove the identity of such another person.
7- A material alteration of writing with a deceitful and fraudulent intent, preventing, therefore, the genuine intent of the instrument from being achieved.
In the above context it can be concluded that there are two types of forgery namely material forgery and moral forgery which are explained below:
Material forgery: A material forgery is said to be carried out when a material change in the document is made by the forger that can be comprehended by senses such as eyes, whether it is addition, deletion, or modification in the existing original document or by creating a new document.
Moral forgery: A moral forgery is said to be conducted when a forger creates a change in the meaning, content, and circumstances at the time of editing but not in material or form as editing articles or statements other than those made by the contractual parties.
For instance: someone impersonating someone else in the contract or employee makes statements about a person in a document contrary to what he said or, stating that he took bribes or money while he has not received any money.
Let us consider this example: To prove false statements as true or to say that person knows about the facts which are not recognized or with which he is not acquainted with.
For instance: A woman (Fatima) declares falsely that she is a real person i.e. a person she claims (Afreen) before an official bailiff or a notary public and her statement is registered and the transaction is made on that factual basis, however in real circumstances, she is pretending to be (Afreen) another women/character.
Further, while pretending to be another woman (Afreen) the forger woman (Fatima) says that I am Afreen and receives an amount and signs as if she is Afreen.
If Fatima says she is Afreen it will be an oral forgery but if she also signs pretending she is Afreen it will oral as well as material forgery.
Material forgery can be easily exposed and proven as contrary to moral forgery, which may be tricky to perceive and at the same time difficult to prove.
Any material and moral forgery made by the forger whether used or not used by the forger can be attributed to the person who created the document. To exclude the impact of such document, several methods can be employed including denial which is sufficient in certain cases to exclude the impact of a forged document, but in other cases, denial may not be completely useful unless a challenge for forgery is also filed. The denial and challenge for forgery are discussed elaborately below:
Pursuant to Articles 11 and 23 (1) of the Law, mere denial of a person is enough in case of the customary document which may be challenged for forgery while contesting the writing, seal, signature, or fingerprint. Hence, it is for the other party relying on the document to prove its authenticity, and thereby the onus of proof shifts on the person relying on the document.
The Court of Cassation in Dubai adjudicated the following in this regard: It is established in the judgment of this court that Article 11 and 23 (1) of the law of evidence that mere denial by a person is enough and the official or customary document, may both be challenged for forgery while contesting the writing, seal, signature or fingerprint which applies only to informal documents until proven by an opponent who holds onto its authenticity of signing the document.
As the opponent is the one who is responsible for the burden of proof in this case and there is no necessity to take the person who denies challenging for forgery on what was attributed to him as his signature.
On 19 November 2012, in appeal No. 93 of 2012 of the Court of Cassation ruled that a person who denies what is attributed to him by signing forfeit authentic document then the other party has to prove the signed document i.e. the party who seeks to rely on such document must prove its authenticity.
*The Challenge for forgery:
According to the Law and the provisions of the Court of Appeal and Cassation, it may not be sufficient to simply deny for excluding the effect of the allegedly forged document, such as official documents and it must be challenged for forgery in such cases as it is not permissible for a person in respect of such document to simply deny the document which was attributed to him by handwriting or signature, stamp or finger-print. If the opponent has admitted the evidence of the validity of the stamp in the customary document and denied impressing it in the way he had to take the challenge for forgery.
(For instance: If the director (D) of the company (A) says that the stamp shown on the document is of their company however D has not impressed or it is not impressed under D's authority he cannot simply deny, he needs to challenge the document for forgery before the court)
* Forgery Challenge procedures:
1- Challenge for forgery may be raised at any stage of the litigation. The challenger shall specify the points of alleged forgery, his evidence, and the investigation process to be followed for proving it. All this shall be stated in a memorandum to be submitted to the court or mentioned in the minutes of the session. If the challenge shall give a result in the case and further the facts and documents in the case are not sufficient to convince the court of the veracity or forgery of the document, and moreover, if the court deems that the investigation requested by the challenger may give an outcome which is acceptable, the court shall order for carrying out the investigation whether through verification by comparison or witnesses testimony or both in accordance with the provisions of law.
2- The party challenged for forgery may interrupt the process of investigation at whatever stage it may be, if he abandons insisting to challenge the document. If such abandonment is filed by the challenger, the court shall order the seizure of the document.
The court may reject any document or seek cancellation even without a forgery challenge being filed before it. The court must provide in its judgment, circumstances, and evidence that proved that it is a forged document.
It is established by the judgments of the courts that pursuant to the terms of Articles 23 and 28 of the Law if any party challenges the forgery, the challenger party has to prove the subject matter of his challenge and supplement the same with a memorandum coupled with the evidence. However, the court will not be obliged to verify the same if the challenger has not provided evidence in his denial or if the opponent himself did not request to investigate.
In Commercial Appeal number 260 of 2010, the Dubai Court of Cassation judgment dated 12 October 2010 states that the challenge for forgery can be made by any parties who apprehend the use of such document though it is not yet used (Articles 33-34)
However, for the case of forgery, the challenge cannot be filed if the document allegedly forged is already used and relied upon by the parties as per the Court of Cassation which ruled as follows: Article 34 is provided for those who fear or apprehend the use of the forged document.
The case of forgery cannot be filed if the document is already used and relied upon by the parties before the court.
As per Article 34 of the Law, the case must be initiated when the forgery is apprehended by the party.
If the document is used by the forger and the case has been filed by using such forged document the party challenging the forgery must not file separate case and must challenge for forgery in the same case. In this case, the cheque being challenged as forged must be proved before the court in same case.
In this case, the forgery case was filed on 18 November 2013 and the criminal case based on the cheque was filed on 22 December 2013 and hence forgery case was filed and accepted by the criminal court before the other criminal case was filed relying on such alleged forged cheque.
The Dubai Court of Cassation ruled on 26 March 2015 in Civil Appeal Number 422 of 2014 that the court may suo moto initiate investigation and handwriting matching or the testimony of witnesses or both handwriting matching and forgery investigation and investigate the forgery as per provisions of Articles 24 to 27 of the Law.
In Commercial Appeal number 3 of 2010 the Dubai Court of Cassation ruled on 7 June 2010 that if the forensic laboratory is appointed and if it considers that the papers are not sufficient to convince it, the court shall order an investigation for handwriting matching or hear witnesses or both.
According to the Dubai Court of Cassation, it is established that the text of the Articles 24 and 28 of the Law, the facts of the case and documents are not sufficient to convince the court regarding handwriting or signature.
It shall order an investigation of handwriting or hear witnesses or both, conducts handwriting matching according to the rules established in the expert work and to hear witnesses according to the rules established in the testimony of witnesses and hear their testimony only with respect to proving handwriting or signature on the document attributed to him, that follows the same method to challenge by denial of signature or challenge for forgery.
As per the Civil Appeal case number 228 of 2009 of Court of Cassation judgment dated 15 November 2009 the ratification of the documents does not prevent the challenge for forgery as the same can be made against any documents whether formal or customary or issued outside the country, even if it was attested by those who represent it and official authorities in the country where these documents are issued.