AFFIDAVITS

1. INTRODUCTION

1.1 The Editorial introduction to Order 41 of the Rules of the Supreme Court of England
1965 (the “RSC”) states:

“An affidavit is a written sworn statement signed by a person (the

deponent) which is used as evidence of the matters deposed to.
…
Affidavits are very common in all divisions of the Superior Courts. Order 41 is
one of the most important Orders in the RSC. Its rules are a complete code
for the final requirements of affidavits.
…
Affidavits are the normal method of proof when evidence is required on
an interlocutory hearing. Affidavits for use in interlocutory proceedings may
contain statements of information and belief with the sources and grounds
thereof (O. 41, r.5(2)).
…
Affidavits must comply with the particular requirements of any other
rule relevant to the application.”

2. FORM OF AFFIDAVIT

2.1 Order 41 rule 1 of the Rules of the Supreme Court of England 1965 (the “RSC”)
provides:

“(1) Subject to paragraphs (2) and (3) every affidavit sworn in a cause or
matter must be entitled in that cause or matter.

(3) Where there are more plaintiffs than one, it shall be sufficient to state the
full name of the first followed by the words “and others,” and similarly with
respect to defendants.
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 (4) Every affidavit must be expressed in the first person and, unless the
Court otherwise directs, must state the place of residence of the
deponent and his occupation or, if he has none, his description, and if
he is, or is employed by, a party to the cause or matter in which the
defendant is sworn, the affidavit must state that fact.

In the case of a deponent who is giving evidence in a professional,

business or other occupational capacity the affidavit may, instead of
stating the deponent’s place of residence, state the address at which he
works, the position he holds and the name of his firm or employer, if
any.

(5) Every affidavit must be bound in book form, and whether or not both side
of the paper are used, the printed, written, or typed sides of the paper must
be numbered consecutively.

(6) Every affidavit must be divided into paragraphs numbered

consecutively, each paragraph being as far as possible confined to a
distinct portion of the subject.

(7) Dates, sums and other numbers must be expressed in an affidavit in

figures and not in words.

(8) Every affidavit must be signed by the deponent and the jurat must be
completed and signed by the person before whom it is sworn.”

2.2 The foregoing requirements ought to be complied with when preparing an affidavit.

3. AFFIDAVIT BY TWO OR MORE DEPONENTS

3.1 Order 5 rule 20 (g) of the High Court Rules, Chapter 27 of the Laws of Zambia (“the
High Court Rules”) provides:

“Where two or more persons join in making an affidavit, their several names
shall be written in the jurat, and it shall appear by the jurat that each of them
has been sworn to the truth of the several matters stated by him in the
affidavit.”
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4. AFFIDAVIT BY ILLITERATE OR BLIND PERSON

4.1 Order 5 rule 20(g) of the HCR provides:

“Where the witness is illiterate or blind, it shall state the fact, that the affidavit
was read over (or translated into his own language in the case of a witness
not having sufficient knowledge of English), and that the witness appeared to
understand it.”

4.2 It is prudent that an affidavit deponed by an illiterate or blind person states as such
and in addition that the affidavit was read over to the deponent and was understood
accordingly.

4.3 For example the Jurat in the case of blind or illiterate deponent should read – “I having
first truly and distinctly read over the contents of this affidavit and the exhibits thereto
to the Deponent, he being (blind or illiterate), who appeared perfectly to understand
the same and who made his (signature or mark) in my presence”.

5. DEFECTIVE AFFIDAVIT

5.1 Order 5 rule 13 of the HCR provides:

“The Court or a Judge may permit an affidavit to be used notwithstanding it is

defective in form according to these Rules, if the Court or a Judge is satisfied
that it has been sworn before a person duly authorised.”

5.2 It is clear from the foregoing that the Court is clothed with the discretion to permit a
defective affidavit in form according to the HCR to be used if the Court is so satisfied
that it has been sworn before a duly authorized person.

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5.3 In addition, Order 41 rule 4 of the RSC provides:

“An affidavit may, with the leave of the Court, be filed or used in evidence
notwithstanding any irregularity in the form thereof.”

5.4 The explanatory note 41/4/1 of the RSC states:

“This rule is permissive. If the irregularity can be cured without undue

hardship, or it is not a matter of substance or affects its actual contents, then
it should be put right.

5.5 The High Court has power to grant leave to a party to cure a defective affidavit.

6. CONTENT OF AFFIDAVIT

6.1 Order 5 rule 16 of the High Court Rules provides that -

“Every affidavit shall contain only a statement of facts and circumstances to

which the witness deposes, either of his own personal knowledge or from
information which he believes to be true.”

6.2 Order 5 rule 17 of the High Court Rules provides that:

“When a witness deposes to his belief in any matter of fact, and his belief is
derived from any source other than his own personal knowledge, he shall set
forth explicitly the facts and circumstances forming the ground of his belief.”

6.3 Further Order 5 rule 18 of the High Court Rules provides:

“When the belief of a witness is derived from information received from

another person, the name of his informant shall be stated, and reasonable

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 particulars shall be given respecting the informant, and the time, place and
circumstances of the information.”

6.4 It is important to note that in terms of Order 5 rule 15 of the High Court Rules -

“An affidavit shall not contain extraneous matter by way of objection or prayer
or legal argument or conclusion.”1

6.5 An affidavit should therefore only contain statement of facts and circumstances and
should not contain extraneous matter by way of objection, prayer, legal argument or
conclusion.

6.6 Order 41 rule 6 of the RSC provides that scandalous and irrelevant matters may be
struck out of an affidavit. The said order provides:

“The Court may order to be struck out of any affidavit any matter which is
scandalous, irrelevant or otherwise oppressive.”

6.7 Thus, the Court is empowered to strike out the parts of an affidavit which are non-
compliant with the rules of court and contain legal arguments, conclusions,
scandalous and irrelevant matter.

7. AFFIRMATION

7.1 In terms of Section 7 of the Official Oaths Act, Cap 5, a person who objects to being
sworn shall be permitted to make his solemn affirmation instead of taking oath and a
person to whom it is not reasonably practicable without inconvenience or delay to

1 Order 5 rule 16 of the High Court Rules

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 administer an oath in the manner appropriate to his religious belief, may make a
solemn affirmation instead of swearing his affidavits.

8. CERTIFICATE OF EXHIBIT

8.1 Order 5 rule 19 of the High Court Rules provides:

“Where any document referred to in an affidavit and exhibited thereto is a

handwritten document other than a statement of account, book of account or
extract therefrom, there shall also be exhibited therewith a typewritten or
printed copy thereof certified in such affidavit to be a true and correct copy of
the original.”

8.2 Order 41 rule 11 of the RSC provides:

“(1) Any document to be used in conjunction with an affidavit must be

exhibited, and not annexed to an affidavit.
(2) Any exhibit to an affidavit must be identified by a certificate of the person
before whom the affidavit is sworn.”

8.3 The exhibits are marked by indicating the initials and number of the exhibit at the top
right-hand corner of the first page of each exhibit. For example an affidavit sworn by
one Chimbwi No Plan would have exhibits marked: ‘CNP1, CNP2’, and so on.

9. AMENDMENT OF AFFIDAVIT

9.1 Order 5 rule 14 of the High Court Rules provides:

“A defective or erroneous affidavit may be amended and re-sworn, by leave of

the Court or a Judge, on such terms as to time, costs or otherwise as seem
reasonable.”
9.2 An erroneous affidavit may thus be amended and re-sworn albeit, with leave of the
Court.
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10. RULES IN TAKING AFFIDAVITS

10.1 Order 5 rule 20 of the High Court Rules sets out rules for taking affidavits:

“The following rules shall be observed by Commissioners and others before

whom affidavits are taken:

(a) Every affidavit taken in a cause or matter shall be headed in the Court and
in the cause or matter.
(b) It shall state the full name, trade or profession, residence and nationality of
the witness.
(c) It shall be in the first person and divided into convenient paragraphs,
numbered consecutively.
(d) Any erasure, interlineation or alteration made before the affidavit is sworn
shall be attested by the Commissioner, who shall affix his signature or initials
in the margin immediately opposite to the interlineation, alteration or erasure.
(e) Where an affidavit proposed to be sworn is illegible or difficult to read, or
is, in the judgment of the Commissioner, so written as to facilitate fraudulent
alteration, he may refuse to swear the witness, and require the affidavit to be
re-written in an unobjectionable manner.
(f) The affidavit shall be signed by the witness (or, if he cannot write, marked
by him with his mark in the presence of the Commissioner).
(g) The jurat shall be written, without interlineation, alteration or erasure
(unless the same be initialed by the Commissioner), immediately at the foot of
the affidavit, and towards the left side of the paper, and shall be signed by the
Commissioner.

It shall state the date of the swearing and the place where it is sworn
It shall state that the affidavit was sworn before the Commissioner or other
officer taking the same.

Where the witness is illiterate or blind, it shall state the fact, and that the
affidavit was read over (or translated into his own language in the case of a
witness not having sufficient knowledge of English), and that the witness
appeared to understand it.
Where the witness makes a mark instead of signing, the jurat shall state that
fact, and that the mark was made in the presence of the Commissioner.

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 Where two or more persons join in making an affidavit, their several names
shall be written in the jurat, and it shall appear by the jurat that each of them
has been sworn to the truth of the several matters stated by him in the
affidavit.

(h) The Commissioner shall not allow an affidavit, when sworn, to be altered
in any manner without being re-sworn.
(i) If the jurat has been added and signed, the Commissioner shall add a new
jurat on the affidavit being re-sworn; and, in the new jurat, he shall mention
the alteration.
(j) The Commissioner may refuse to allow the affidavit to be re-sworn, and
may require a fresh affidavit.
(k) The Commissioner may take, without oath, the declaration of any person
affirming that the taking of any oath whatsoever is, according to his religious
belief, unlawful, or who, by reason of immature age or want of religious belief,
ought not, in the opinion of the Commissioner, to be admitted to make a
sworn affidavit. The Commissioner shall record in the attestation the reason
of such declaration being taken without oath.
(l) Every certificate of an exhibit referred to in an affidavit signed by the
Commissioner before whom the affidavit is sworn shall be marked with the
short title of the cause or matter.”

10.2 Also note that section 6 of the Commissioner of Oaths Act2 provides that:

“Every Commissioner for Oaths before whom any oath or affidavit is taken or
made under this Act shall state truly in the jurat or attestation at what place
and on what date the oath or affidavit is taken or made.”

CASE LAW

2 Chapter 33 of the Laws of Zambia

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11. Chikuta v Chipata City Council (1974) Z.R. 241
The Supreme Court frowned on the use of affidavits by Counsel to adduce
hearsay evidence. The Court held:
“The increasing practice amongst lawyers conducting cases of introducing
evidence by filing affidavits containing hearsay evidence is not merely
ineffective but highly undesirable, particularly where the matters are
contentious.”

EXAMPLES

AFFIRMATION
I, A. B. of (state nationality and residence), do solemnly and sincerely affirm
(Set out in numbered paragraphs the facts affirmed)
Affirmed at (address) the
…… day of…………2018
before me,
(Signature) (Affirmer’s signature)
Commissioner for Oaths

AFFIDAVIT AND AFFIRMATION: JOINT FORM

I, P. Q., of (state nationality and residence), make oath and say, AND I, R. S. of
(state nationality and residence), do solemnly and sincerely affirm:
And I, P. Q., for myself, say as follows:
1. (Set out in numbered paragraphs the facts to which P. Q. deposes).
And I, R. S., for myself, say as follows:
2. (Set out in numbered paragraphs the facts which R. S. affirm)
And we, P. Q. and R.S., jointly and severally say as follows:
3. (Set out in numbered paragraphs the facts to which P. Q. deposes and
which R.S. affirms jointly).
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 SWORN by P. Q. and
AFFIRMED by R. S. at (address)
the ………. day of ………2018
before me,

(Signature) (Signature of P. Q. and R.S.)

Commissioner for Oaths

KNOWLEDGE, INFORMATION AND BELIEF

It is within my knowledge that ………………

I am informed by (my Advocates) and verily believe that…………….

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Or;
On or about ………....19… my Advocates, as I am informed by them and verily
believe, (wrote to the Defendant and requested him to) ……………
Or;
I verily believe that ……………… The sources of my information and the grounds on
which my belief is founded are ………………..
From the knowledge which I have obtained from perusing and studying the
(accounts and papers of the deceased) I verily believe that ……………
Or;
(Save where (otherwise expressly stated or the source of my information otherwise
appears, the truth of which I verily believe)) I depose to the truth of all the above
matters of my own knowledge (obtained by me as such (secretary or executor or as
the case may be) as aforesaid).
Or;
I depose to the truth of the facts stated in this affidavit partly from my own knowledge
and partly from information, which I verily believe, (which I have derived as the result
of inquiries made by me (at or of) ……….. or supplied to me by E. F., ( a partner in
the firm of E. F. & Co. of (address), who (have acted for me for many years past or
acted for the deceased during his lifetime) or one of the executors of the deceased’s
estate or trustee in bankruptcy of P. Q. or as the case may be)).
Or;
I am enabled to make this affidavit from the facts within my own knowledge as
(Secretary of the said Company) and from information derived by me from an
examination of the books, accounts, documents and papers of the said (Company).
Or;
I am and have for the past 15 years been a partner in the Defendant firm and I make
this affidavit of my own knowledge gained as such partner as aforesaid.

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