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This pamphlet deals with the evidence and the preparation of it for court hearing or trial.
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The affidavit or affirmation is a statement of facts made by a person on oath. The maker of the statement has to take legal responsibility for the truthfulness of the contents of it. It is in this form the court will accept it as evidence.
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The list of documents is for the parties of the court action to set out all the documents that they intend to put to the court for consideration at the hearing or trial.
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The witness statement is a statement of fact given by the person who saw what happened. It is different from an affidavit because it is not made on oath. It will only be accepted in evidence by the court when the witness confirms its contents to be true on oath when he or she appears in court at the hearing or trial.
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An expert witness is a statement of an expert. An expert gives evidence in court on something that he or she has special knowledge and is recognized as an expert in that field. The duty of the expert is to assist the judge to understand the special subject that requires his or her expertise.
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A bundle of documents is a file of documents prepared by the plaintiff or the defendant for the hearing or trial.
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The above items are described in detail below.
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| 4.1 |
The affidavit or affirmation
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This is the form by which the parties or their witnesses submit evidence to the court in the hearing of applications before trial (the interlocutory applications) or the originating summons. Sometimes, the court may make order that the affidavits or affirmations in the proceedings before trial shall stand as the statements of the witnesses at the trial. But the trial judge can make the final decision.
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A Catholic or a Christian should make affidavits. People of other religious beliefs or no religious belief should make affirmations. See the examples in a separate file entitled
"Sample court forms"
available at Resource Centre for Unrepresented Litigants.
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The form of the affidavit or affirmation is obtainable from the Registry or Resource Centre for Unrepresented Litigants. The person who gives evidence in the affidavit or affirmation is called a deponent.
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The evidence given in the affidavit or affirmation must be within the personal knowledge of the deponent. For applications before trial, the affidavit or affirmation may contain statements of information or belief, but the sources of the information and grounds of the belief must be stated.
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The deponent is personally liable for the contents of the affidavit or affirmation to be true and accurate. The deponent commits perjury if he knowingly gives false or misleading evidence on affidavit or affirmation. The court is not bound to accept the evidence. It can assess the reliability of the evidence and decide how much weight should be given to the evidence. It can also order the deponent to attend court to be cross-examined by the other party. If the deponent does not attend court for cross-examination, the court may refuse to admit his affidavit or affirmation as evidence.
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Except for the expert witness, a deponent should give evidence on facts only in his affidavit or affirmation. The expert witness can give evidence of opinion within his expertise as well.
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The contents of the affidavit or affirmation should be set out in numbered paragraphs. Usually, one paragraph should contain one fact or one aspect of the facts. The style of the writing should be clear and concise. The documents referred to in the affidavit or affirmation should be marked as exhibits annexed to the affidavit or affirmation. The exhibits should be numbered for easy identification.
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It is desirable to have the affidavit or affirmation in type-written form. If it is in hand-written form, the deponent must write the words properly and clearly in alternate lines. If the affidavit or the affirmation is not legible, the judge may order the deponent to put it in a proper form and manner. The trial or hearing may be adjourned for that purpose. In such case, the party who causes the adjournment will be ordered to bear the costs for the time wasted.
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You should refer to the
explanatory notes for preparing an affidavit or affirmation
on the
"Sample court forms "
file.
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| 4.2 |
List of documents
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After the pleadings are closed (parties having set out all their facts and disputes in the statement of claim, defence and reply), the parties should prepare their list of documents or materials relevant to the matter and exchange it with the other side within 14 days. The purpose is for the parties to put all their cards on the table before trial. See the
explanatory notes for preparing a list of documents
on the
"Sample court forms"
file.
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All these documents or materials in their possession or within their custody or control have to be disclosed in the lists. A party has to disclose all documents relevant to the dispute even if the documents are harmful to his own case. Parties can inspect each other's documents and the materials on the list
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If there are documents that the parties think are privileged (documents that they can refuse to disclose to the other party under the law), they should put them under the category of privileged documents. They may refuse to disclose them or let the other party inspect them. If there is a dispute on whether the documents are privileged documents, a summons should be taken out for the dispute to be resolved by the court
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The list of documents should be set out in chronological order and prepared in accordance with the form, which is obtainable from the Registry or Resource Centre for Unrepresented Litigants.
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If a party considers that the other party has certain documents relevant to the matter but has not yet disclosed them, he can apply to court for an order for disclosure of those documents.
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If a party does not comply with a court order to disclose the documents, the other party may apply to court for an order to enter judgment against the disobedient party.
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| 4.3 |
Witness statements
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The usual form of evidence in civil proceedings is the witness statement. The witness statement should contain an account of the facts that the witness will give as evidence in court. The court may make an order that the witness statements should stand as evidence in chief at the trial. But the trial judge can make the final decision. The parties should therefore prepare the witness statements at an early stage. The plaintiff and the defendant may give evidence in court themselves. They should prepare their own statements as well. However, they may elect not to give evidence themselves but only call their witnesses to give evidence. Parties should exchange their witness statements and filed them with the court in accordance with the directions of the court. See the
explanatory notes for preparing a witness statement
on the
"Sample court forms"
file.
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The witness statements should be concise in style but comprehensive in contents, covering all the facts relevant to the claims and the disputes.
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The witnesses should give an account of the relevant facts of the matter within their own personal knowledge. If the facts are not within their personal knowledge, the court may refuse to admit them as evidence or give little or no importance to them even if they are admitted as evidence
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It is advisable to set out the facts chronologically in separate numbered paragraphs.
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The witnesses should sign at the end of their statements with their names on it.
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| 4.5 |
Bundle of documents
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Before the trial, the parties should prepare the bundle of documents for the trial. The bundle should be prepared in accordance with the list of documents. Many of the documents appear on the lists of both the plaintiff and the defendant. It is better for the parties to agree a bundle of documents. If they cannot come to an agreement, each side will have to prepare his own bundle of documents.
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The documents can be copy documents. The documents should be arranged in a chronological order according to the dates of the documents. All the pages should be paginated. Parties should ensure that the contents of the copy documents are legible.
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The original documents, if available, should be ready for inspection at the trial.
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There should be identical bundles of documents, one for each party, one for the court and a spare bundle for the witnesses at the trial.
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You may prepare your introduction of your case in writing to the trial judge for the opening of your case. Your written introduction should set out the outline of your own case and your arguments in point form. But this is not compulsory. You should send it to court at least 2 working days before the trial or hearing. You have to send a copy of it to the other party as well. If you want to give your written conclusions to the court at the end of the trial or hearing, you may do so after the court has heard the evidence. It is better to type out the written introduction or conclusion if possible. At least, you have to ensure that your writing is legible.
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