Affidavit evidence in civil court

EVIDENCE IS AN important part of presenting a case before the court. Very often it is oral evidence where witnesses on the stand are questioned in court regarding their knowledge of the facts pertaining to a specific case. Evidence can also be presented by way of affidavit. The court may require the witness to present the evidence in this written form instead of oral evidence. It could require it in addition to the oral evidence.

An affidavit is a document with statements that are voluntarily sworn to for a proceeding in court.

The document produced is headed with the title of the proceedings. The person who makes the sworn statement in the document is known as the deponent.

He or she writes down his knowledge of the facts pertaining to the matter at hand. The facts are written down in an orderly manner and numbered and the deponent swears or affirms to the document before an officer who is authorized to do so, for example, the Registrar of the High Court. It is filed at the court office.

The document is legally binding and a person could be charged with perjury if false statements are made.

Presenting an affidavit does not preclude the party from attending court. If the party does not attend the court to give oral examination an affidavit would not exempt him. He will still have to turn up in court to be cross-examined. Cross-examination goes to the fairness and justice of the court system.

Cross-examination is a vital part of the court process. This is the way by which the court is able to check the truthfulness and credibility of the person who makes the affidavit. The attorney or an unrepresented person gets the opportunity to question the other party or witness regarding the knowledge of facts. If the deponent does not turn up in court, the affidavit could be thrown out unless the court allows. Under cross-examination falsehood could be revealed and the deponent’s credibility could be destroyed. Any one party wishing to challenge the affidavit of the deponent must apply to do so in

21 days before a trial or 7 days for any other hearing.

Rule 30 of the Civil Procedure Rules 2000 provides guidance for the making of an affidavit. The deponent cannot include information that he would not be able to prove from his or her knowledge.

In other words, the deponent must state the truth. The court could strike out “any scandalous, irrelevant or otherwise oppressive matter contained therein.” (CPR2000) The deponent must present a document that is free of error.

If the document cannot be reprinted, the deponent and the person before whom it is sworn could initial any alteration.

Supporting documents such as bills and receipts could be of tremendous importance and to the advantage of the deponent. They are referred to as exhibits.

These would be referenced in the statements on the document and given a letter A, B, C etc. designation.

Photocopy of the document should be attached. Where there are many exhibits they could be arranged in a bundle. The original documents should be kept in a bundle for inspection not only by the other parties but also by the court. A certificate of the documents contained in the stack must be displayed on the front page of the bundle. The deponent, in the presence of the person authorized, must sign the document at the end of the statements. The lawyer who represents the deponent cannot sign the document.

● Ada Johnson is a solicitor and barrister-at-law. E-mail address is: exploringthelaw@yahoo.com