Part 31

 

Affidavits

 

Contents of this part

Affidavit evidence Rule 31.1

Form of affidavits Rule 31.2

Contents of Affidavits Rule 31.3

Documents to be used in conjunction with Affidavits Rule 31.4

Making of Affidavits Rule 31.5

Affidavits made out of the jurisdiction Rule 31.6

Service of affidavit Rule 31.7

 

Affidavit Evidence

31.1 (1) The court may require evidence to be given by affidavit,

instead of or in addition to a witness statement.
    1. Where an affidavit is used in evidence, any party may apply to the court for an order requiring the maker of the affidavit to attend to be cross-examined.
    2. If the person in question does not attend as required by the court order, his affidavit may not be used as evidence unless the court permits.

(4) The general rule is that an affidavit must be filed before it may

be used in any proceedings.

(5) In a case of urgency the Court may however make an order on

an affidavit if the party tendering it undertakes to file it before

the order is drawn up.

Form of affidavits

31.2 Every affidavit must -

(a) be headed with the title of the proceedings; and

(b) be in the first person and state the name address and

occupation of the deponent and, if more than one, of each of

them; and

(c) state if any deponent is employed by a party to the

proceedings; and

(d) be divided into paragraphs numbered consecutively; and

(e) be signed by the deponent or deponents.

(f) be endorsed with the name of the attorney, if any,

for the party on whose behalf it is filed; and

(g) be marked on the top right hand corner of the affidavit with

-

(i) the party on whose behalf it is filed; and

(ii) the initials and surname of the deponent; and

(iii) (where the deponent swears more than one affidavit

in any proceedings), the number of the affidavit in

relation to the deponent; and

(iv) the identifying reference of each exhibit referred to in

the affidavit; and

(v) the date when sworn; and

(vi) the date when filed.

Example:

"Claimant: N. Berridge: 2nd: NB 3 and 4:1.10.98: 3.10.98."

 

Contents of Affidavit

31.3 (1) The general rule is that an affidavit may contain only such

facts as the deponent is able to prove from his own

knowledge.

(2) However an affidavit may contain statements of information

and belief -

(a) where any of these Rules so allows; and

(b) where it is for use in any procedural or interlocutory

application,

provided that the source of such information and the ground

of such belief is stated in the affidavit.

(3) The court may order that any scandalous, irrelevant or

otherwise oppressive matter be struck out of any affidavit.

(4) No affidavit containing any alteration may be used in

evidence unless all such alterations have been initialled by

the person before whom the affidavit was sworn.

 

Documents to be used in conjunction with Affidavit

31.4 (1) Any documents to be used in conjunction with an affidavit

must be exhibited to it.

(2) Where there are more than one such documents they may be

included in a bundle which is in date or some other

convenient order and is properly paginated.

(3) Clearly legible photographic copies of original documents

may be exhibited, provided that the originals are made

available for inspection by other parties before the hearing

and by the court at the hearing.

(4) Each exhibit or bundle of exhibits should be marked in

accordance with rule 31.2(f).

 

 

Making of affidavits

31.5 (1) All affidavits must be sworn or affirmed before a

Commissioner for Oaths.

(2) No affidavit shall be admitted into evidence if sworn or

affirmed before the attorney of the party on whose behalf it

is to be used or before any agent, partner or clerk of such

attorney.

(3) Where it appears that the deponent is illiterate or blind, the person before whom the affidavit is made must certify in the jurat that -

(a) the affidavit was read in his presence to the deponent; and

(b) the deponent seemed perfectly to understand it; and

(c) the deponent made his signature or make in his presence.

Affidavit made out of the jurisdiction

31.6 A person may make an affidavit outside the jurisdiction in

accordance with -
    1. this Part; or
    2. the law of the place where he makes the affidavit

Service of affidavit

31.7 (1) The general rule is that a party who is giving evidence

by affidavit must serve a copy on every other party.
    1. This applies whether the affidavit was made in the proceedings or in some other proceedings.
    2. A party does not need to serve a copy of an affidavit if he wishes to use the affidavit in support of an application to be made without notice.