affidavit

Everything you need to know about an affidavit

An affidavit is a written statement of facts voluntarily made under an oath or affirmation administered by a person authorised to do so by law.

An affidavit can only be made by a natural person who is called an affiant. In East Africa, the affiant is often called a deponent. It is made without any cross examination and therefore is not the same as a deposition, a witness statement or a pleading.

It is based upon either personal knowledge of the affiant or his or her information and belief.

An affiant must have the intellectual capacity to take an oath or knowledge of the facts that are contained in the affidavit. There is no age requirement for an affiant. A criminal conviction does not make a person incapable of making an affidavit, but an adjudication of incompetence does.

A person familiar with the matters in question may make an affidavit on behalf of another, but that person’s authority to do so must be express. An attorney may make an affidavit for a client if it is impossible for the client to do so. When necessary, a personal representative, agent, officer or partner may execute an affidavit that indicates the capacity in which the affiant acts.

A person cannot be compelled to make an affidavit since it is by definition, a voluntary statement.

An affidavit is a written statement of facts voluntarily made under an oath or affirmation administered by a person authorised to do so by law.

An affidavit can only be made by a natural person who is called an affiant. It is made without any cross examination and therefore is not the same as a deposition, a witness statement or a pleading.

It is based upon either personal knowledge of the affiant or his or her information and belief.

An affiant must have the intellectual capacity to take an oath or knowledge of the facts that are contained in the affidavit. There is no age requirement for an affiant. A criminal conviction does not make a person incapable of making an affidavit, but an adjudication of incompetence does.

A person familiar with the matters in question may make an affidavit on behalf of another, but that person’s authority to do so must be express. An attorney may make an affidavit for a client if it is impossible for the client to do so. When necessary, a personal representative, agent, officer or partner may execute an affidavit that indicates the capacity in which the affiant acts.

A person cannot be compelled to make an affidavit since it is by definition, a voluntary statement

Any public officer authorised by law to administer oaths or affirmations may take affidavits. Such officers include: judges, magistrates, commissioners for oaths, prisons’ commissioners, among others. An officer cannot administer an affidavit outside of the particular jurisdiction in which he or she exercises authority. However, an affidavit sworn before a notary public is effective outside the affiant’s country. An official seal is not essential to the validity of the affidavit but may be placed on it by the proper official.

Except as provided by statute, an oath is essential to an affidavit. The statement of the affiant does not become an affidavit unless the proper official administers the oath.

When religious convictions prevent the affiant from taking an oath, he or she may affirm that the statements in the affidavit are true.

No standard language is required to be used in an affidavit as long as the facts contained within are stated definitely. Unnecessary language or legal language should not be included. Clerical and grammatical errors should be avoided but are inconsequential.

Usually, the affidavit must contain the address of the affiant and the date that the statement was made in addition to the affiant’s signature or mark. The place where the affidavit has been made is also noted. When an affidavit is based on the affiant’s information and belief, it must state the source of the affiant’s information and the grounds of the affiant’s belief. The purpose of these requirements is to permit the court to draw its conclusions about the information in the affidavit.

An affiant is strictly responsible for the truth and accuracy of the contents of the affidavit. If false statements are made, the affiant can be prosecuted for perjury.

Affidavits are used in business, judicial and in administrative proceedings.

In business, affidavits are used whenever an official statement that others should or might rely upon is needed. Statements as to the financial stability of a company, the financial condition of the person applying for credit and the extent to which a company has been involved in litigation are examples of affidavits used in the business world.

In judicial proceedings, affidavits serve as evidence in civil and criminal prosecutions. Their use is usually restricted to times when no better evidence can be offered. If a witness who has made an affidavit is not available to testify at a trial, his or her affidavit may be admitted as evidence.

An affidavit is also used as evidence in ex parte proceedings such as a hearing for the issuance of a temporary restraining order or a notice to show cause. The expeditious nature of such proceedings is considered to substantially outweigh the weak probative value of the affidavits. In addition, there is normally a subsequent opportunity in the course of litigation for the opposing party to refute the affidavits or cross examine the affiants.

An affidavit based on the knowledge of the affiant is accorded more weight than one based on information and belief. When admissible, affidavits are not conclusive evidence of the facts stated therein.

In administrative proceedings, affidavits are frequently used in administrative and quasi-judicial proceedings as evidence when no objections are made to their admission and there is an opportunity for cross examination.

To understand more about affidavits, please write to us at enquiries@bitalaadvocates.com or simply send us a message on our social media sites.

BY SAMALI BITALA

This article appears in our digital law newsletter, The Deuteronomy Vol 5, Issue 1 of May 5th, 2017

To receive The Deuteronomy in real time, click HERE

 

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