Federal Supreme Court, Commercial Appeal No. 112 of 2021, judgment of 16 March 2021
Under Article 18 of the Evidence Law (Federal Law No. 10 of 1992), a party may ask the court to order its opponent to produce a document in its possession that is common to both and records their mutual rights and obligations. A party who has discussed the substance of a private document, whether an original or a photocopy, may not afterwards deny his signature on it or contest the copy. Once a bank's representative had discussed a copy of a deposit certificate without denying it, the burden shifted to the bank to prove, by any means available in commercial matters, what had become of the deposit.
The heirs of a depositor who died in November 2009 found two deposit certificates issued by a bank in 1982 and 1983 for AED 700,000 and AED 100,000, of which the bank statements produced in the estate proceedings showed no trace. They sued for the appointment of a banking expert and, after his report, for payment of both deposits with interest. The expert found that neither the bank nor the heirs held the originals, that the photocopies showed the deposits existed, that the AED 700,000 deposit was blocked as security for loans and facilities while the other carried no such restriction and matured in March 1984, that the bank kept no record of either, and that the depositor's current account had been closed at the end of 2003. The bank pleaded the long limitation period and objected that the claim rested on photocopies, which it denied. The first-instance court dismissed the claim; on appeal, a Central Bank expert found no accounting trace of the deposits and no records, the documents being unavailable ten years after the account was closed, and the Court of Appeal affirmed. The Federal Supreme Court quashed that judgment. Article 18 allows a party to require production of a common document, and a party who has discussed the substance of a private document may not then deny it. The first expert's report, which the courts had adopted, recorded that the bank's representative, when shown the copy, did not deny it but discussed it, saying the deposit was assigned to secure loans and facilities. The burden therefore lay on the bank to show whether the deposit had been credited to the current account or set off against the account holder's debts. Dismissing the claim because the bank denied the copy and no longer kept its records after the legal retention period breached the law and the right of defence. The case was remitted.
Old deposits often surface only when heirs go through a deceased person's papers, by which time banks may no longer hold records. The judgment places the burden on the bank, once it has engaged with a copy of its own certificate, to show what happened to the funds; the end of the record-keeping period is not by itself an answer. The rule on production of documents now appears, in expanded form, in Article 33 of the Evidence Law (Federal Decree-Law No. 35 of 2022), as the Technical Office's note records.
| Article 18 of Federal Law No. 10 of 1992 (Evidence Law); replaced by Article 33 of Federal Decree-Law No. 35 of 2022, per the Technical Office's note Decided under this law; it has been replaced by Evidence Law. |
“عبء إثبات مآل تلك الوديعة وما إذا كانت قد نزلت بالحساب الجاري أو استعملت للمقاصة مع المديونية المترتبة على صاحب الحساب يقع على كاهل المصرف”Short quotation from the judgment as published by the court. The full judgment is on the court’s official service.
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