An affidavit, governed by Order 40 of the Rules of the Superior Courts, is written sworn testimony. It is a statement of fact that allows evidence to be presented to the court. The person who makes the affidavit is referred to as ‘the deponent’. He/she avers to certain matters and swears or affirms that they are true.
The person swearing/affirming the affidavit must confirm that the facts in the affidavit are in his/her own knowledge.,. The affidavit cannot set out legal argument or hearsay or assumptions except on interlocutory motions, on which statements as to his/her belief, with the grounds thereof, may be admitted.
Affidavits should be sworn on a sacred text. If ethical or religious reasons prevent swearing on a sacred text the deponent may make an affirmation rather than an oath.
Affidavits are sworn or affirmed by a commissioner of oaths, solicitor or an officer empowered to administer oaths.
An affidavit opens with a paragraph in which the deponent states his/her name that he/she is 18 years and over, his/her occupation and address. It goes on to say that he/she “makes oath and says as follows…”
The jurat, at the end of the affidavit, will record the name of the deponent, where and when the affidavit is sworn or affirmed.
The person taking an affidavit must certify in the jurat that (a) he personally knows the deponent or (b) that the deponent has been identified to him by some person personally known to him and named in the jurat who certifies his personal knowledge of the deponent or (c) that the identity of the deponent has been established by him by reference to a relevant document containing a photograph of the deponent before the affidavit was taken.
Any amendments to the affidavit must be initialed by the deponent and the commissioner of oaths taking the affidavit. Any amendment made following the swearing must be initialed by the deponent and the commissioner of oaths and a new jurat is required.
Affidavits are filed by post or in person at the High Court Central Office. To file an affidavit you should check the following:
- Is the document stamped with the correct court fee?
- Is the affidavit in the correct format?
- Did you include a stamped self-addressed envelope, if filing by post?
- Did you include two copies of the affidavit, which will be returned to you?
- Have you included the record number on the top right corner of the document - for example, 2014/0000 P ?
- Is the title of the case correctly set out?
- Have you included the filing clause at the bottom of the affidavit? 'Filed on behalf of the plaintiff/defendant, applicant/respondent by ...'
- Is the jurat completed correctly?
Exhibits (documents/items referred to in the affidavit) should not be included with the affidavit when filing the affidavit in the Central Office