WITNESS TESTIMONY IN UAE
Part IWitness testimony is certainly the oldest form of evidence and is generally given the most credibility in the courts. The issue that arises here is that how reliable the statements of witnesses are in the court in civil or criminal matters. The civil or criminal laws of the country have provided the procedure related to the witness testimony in the court but have not mentioned the procedure to test the veracity of his or her statement. All legal systems globally are consistent with different backgrounds and sources, that a lawsuit whether civil or criminal must have evidence in order to adjudicate the petitioner's pleas. National Emirati legislation is no different. There are several laws which lay down provisions concerning the witness testimony for example Article 1 (1)of the Federal Law Number 10 of 1992 concerning the Law of Evidence (the Evidence Law) stipulates that: "The plaintiff must prove his claim, and the defendant has the right to disavowal".
Also, Article 113 of Federal Law Number 18 of 1993 concerning Civil Transactions Law (the Civil Transaction Law) also stipulates that: "The creditor must prove his right and the debtor has the right to disavowal." and Article 117 of the Civil Transaction Law also stipulates that: "The evidence is on the accuser and an oath is on he who denies."
It is important to note that the cassation court judgments in the nation are considered as precedents and can be used in similar lawsuits, as it binds any lawsuit holder whatever his position in the lawsuit, whether a plaintiff or a defendant must submit evidence to support their claim. Court of cassation adjudicated in Dubai dated 26 December 2011 in appeal number 2011/ 111 Labor Appeal that: "it is determined that a claimer is obliged to provide evidence on their claims whether they were originally a plaintiff in the lawsuit or a defendant in it"
Proof of Testimony
Evidence can be proved and taken into consideration upon the testimony of the witness. Law has also referred to the testimony of the witness as one of way to prove the evidence presented in the court as Article 112 of Federal Law Number 11 of 1992 regarding the Civil Procedure (the Civil Procedure Law) mentions that "Proving the claim's evidence are: writing, testimony, indices, examination and experience, declaration and oath".
The law has also given testimony full proof and evidence in proving a claim, should the competent judge accept it, and the other conditions were available. Article 114 of the civil transactions law outlines that: "writing, testimony, conclusive indices and examination and experience are transitive arguments."
Considering the importance of the testimony of a witness proving the difference between the innocent and guilty party in a lawsuit, we consider few aspects such as “Who has the right to testify, what is the quorum of testimony” and “who is forbidden from testifying”. Post obtaining the result from foregoing questions we seek answers for another two questions being “Is it permissible to withdraw a testimony after testifying” and“can others annul a witness's testimony?”
Who can testify?
Importantly, it is established that everyone has the authority to testify in the court of law as long as they were permitted by the competent court, and a request to hearing the witnesses was not declined by the court. However, the court may decline to hear the witnesses, should it find no benefit in their testimony to the case. That is in the case of a civil lawsuit.
The court of cassation's civil department in Dubai dated 1 February 2011 in appeal number 122/2010 domestic relations adjudicates that: "The trial court is authorized to assess the seriousness of the opponent's request to transfer the case for investigation, admit it or decline it. That is according to the lawsuits circumstances and documents. It is also authorized to decline the request should it find in the suit's papers and documents enough clues to form a belief in order to adjudicate on the subject without the need to transfer the case for investigation and witness hearing".
Age of the witness
The law of Evidence does not include what could determine the age of the witness. However, referring to the Islamic Shariah Law, it is mentioned that at least two men should bear witness, where the men must be above the age of 21. Therefore, the witness must reach puberty, and this is how the juridical of cassation adjudicates.
Therefore, a boy would be ineligible to testify, but it could be taken on a non-official basis. Imam Malik had approved that a boy would keep his statements and testify when he's of age. The court of cassation in the case of Dubai dated 08 April 2001 in appeal number 07/2001 domestic relations adjudicated that: "Malikiti school approves of a boy's testimony, he would testify when he's no longer considered a boy, for it is intended in their opinion to trust the witness at the time of the testimony, and that lineage is proved by heard testimony."
Swearing an oath
The witness must swear an oath whether on civil or criminal evidence. Article 41 (2)of the Law of Evidence stipulates that: "The witness swears the oath by saying (I swear by Allah Almighty to tell the truth and nothing but the truth). Swearing would depend on his religion's conditions if he asks for that."
It's worth noting that not swearing the oath of criminal evidence has its impact, since not swearing the oath results in the invalidity of the testimony. The court of cassation in Dubai – dated 28 October 2007 in appeal number 131/2007 civil adjudicates on this matter that: "It is the witness's duty – according to Article 41 of the law of evidence in civil and commercial transactions – to swear an oath before testifying by saying (I swear in Allah Almighty, to tell the truth and nothing but the truth). Swearing would depend on his religion's conditions if he asks for that." And it's a ruling article in which the testimony, without it, becomes invalid as a standing evidence in the lawsuit in order to achieve the purpose of which the legislator had intended, that is to enlighten the witness of what swearing by God involves of committing to honesty and seeking the truth. But, if the witness appears before the court and refuses to swear the oath, or refuses to answer –after swearing- and with no legal justification, he will be sentenced the penalty appointed in the penal law, according to what article 43 (1) from the same law adjudicates."
The quorum of testimony
The Law of Evidence and the law of evidence have no articles to determine the quorum of testimony or witnesses in proving. Thus, in this case, the court is given the choice to adopt the honorable Islamic Shariah Law, the court of cassation in Dubai dated 12 December 2006 in appeal number 2005-81 domestic relations held that: -
"Should each of the law of domestic relations, the law of evidence in civil and commercial matters and the law of civil procedures lack an article on whose testimony would be accepted on inheritance and the quorum of that testimony. And according to the third clause of the second article of the first law- it is reverted in clarifying that to what's known in the doctrine of Imam Malik which determines that the quorum of the testimony is two men.”
And what's decided on inheritance could apply on any other matter regarding the quorum of testimony, if there was no article to determine it.
The whereas regarding the civil suit, the law of evidence had not required a specific quorum for the witness's testimony, therefore, it is authorized to prove with the testimony of one witness. The court of cassation adjudicates through Dubai dated 17 October 1998 in appeal number 147, 164/1998outlines that"The law of evidence does not require a specific quorum to prove what should be proven by the testimony of the witnesses, so it is authorized to prove with the testimony of one witness – for whatever it is and the appealed adjudicationwas deduced of the witness's statements that are written in the expert's official report that the appealer used his right in taking his annual vacations for the last two years of his service and what the jurisdiction had deduced in that was admissible and has a fixed origin in the witness's statements and was sufficient to carry the jurisdiction on this matter, deploring on it regarding this would be ungrounded."
It is important to note that there is a difference in proving domestic relations matter and civil matter in witness quorum. Witness quorum in the civil suit had been explained earlier, but in the matters of domestic relations, it's different depending on the matter to be proved. In the case of proving damage in a divorce lawsuit, the law authorized proving by a man or a woman. Court of cassation adjudicated in Dubai dated 29 December 2009 in appeal number 73-2009 domestic relations that: "It is determined, in the jurisdiction of this court, that in the matter of proving damage that stipulates a divorce, it is approved to accept the witness's testimony, whether a male or a female. And the quorum to the testimony in proving the damage is two honest men or a man and two women".
On the quorum of testimony in proving lineage or divorce, it must be two honest men. The court of cassation mentioned in Dubai dated 20 February 2006 in appeal number 2005/58 domestic relations appeal that: "It is determined that a divorce is an annulment the valid marriage in the form set by the Shari 'a, which would be verbal or written. And when unable to understand, by the comprehended sign. It falls upon the husband or his representative by a special power of attorney, on the wife if she had been given the rights of the marital bond by her husband, or a judge's jurisdiction. A divorce is either revocable, the marriage does not end until the waiting period is over, or irrevocable, ends the marriage when it occurs. The divorce is proven either by the husband declaring it verbally or in writing issued by him, Duly certified documentary evidence or a judge's jurisdiction. The quorum of testimony for a divorce is two men."
The court of cassation also adjudicated in the case in Dubai dated 12 December 2005 domestic relations that "It is determined in Imam Malik's applicable doctrine that the quorum of testimony in proving lineage is two honest men".
That, and the reason for the difference between a man's testimony and a women is that a woman tends to forget, and given the importance of the matter that is witnessed, the Islamic Shariah wanted to assure that the witness remembers all the details and not get things mixed up, which would occur to a woman. Let alone women's emotional nature which may affect her testimony.
To approve or Disapprove?
We have already discussed that everyone has the right to testify in the court of law and even a boy's testimony would be unofficially considered. Yet, it is worth noting that the witness himself, and his relation to both parties to the lawsuit may be taken into consideration.
The law mention on some of these clauses and the judges have worked on coming with jurisprudence on some others. The law of evidence in Article 40 mentions that: "The testimony of employees hired staff and those who are assigned a public service won't be accepted even after leaving their work on whatever information, unauthorized to publish by the official authority, they might have had access to during their duty. Nonetheless, this authority may allow them to testify at the request of the court or one of the opponents."
The rule of accepting or rejecting a testimony is up to the trial court. The Court of cassation had adjudicated in many of its official decisions that kinship, affinity, and dependency are factors that don't deter from accepting a testimony to the extent that dishonesty is not a factor that would prevent accepting the witness's testimony. It is evident from the judgment of Cassation court in Dubai dated 26 March 2000 in appeal number 445/1999 rights “kinship, affinity and dependency and dishonesty are, in the concept of this law, not prohibitive from testifying, which is left to the trial court whether to estimate or decline it".
The court has also outlined that "declining an offspring's testimony to their ancestry, and the ancestor to their offspring" in Dubai dated 17 June 2001 in appeal number 19/2001 domestic relations.
The sanctity of witness testimony is different in civil and commercial matters. The rule in both the lawsuits is also different as we have studied in the case laws of Court of Cassation mentioned above. In the next article we will discuss the witness testimony in the criminal cases and what are the possible situations where the court can refrain the witness from giving his testimony.
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