Affidavits in Singapore: What are They, How to Prepare One and What Happens After That
What is an Affidavit?
An affidavit is a signed statement made on oath (if the person making the affidavit is Christian) or on affirmation (if the person making the affidavit is not a Christian).
It is a document a deponent (the person making an affidavit of what he has witnessed) makes voluntarily, setting out his personal knowledge or belief pertaining to a particular set of facts or events.
The statements made in an affidavit by the deponent can be used in court as proof of what he has witnessed.
Who Can Make an Affidavit?
Anyone with intellectual capacity to take an oath or make an affirmation may make an affidavit.
There is no legal requirement as to the age of the deponent. However, a child must be mature enough to understand the facts in the affidavit and the legal and moral significance of an oath or affirmation.
What are Affidavits Used For?
Affidavits are the main way to present evidence (facts of the case) to the court. They are used mainly in interlocutory proceedings and for adducing evidence (explained below) at trials.
Common Types of Affidavits
Some of the most common types of affidavits are listed below:
Affidavits of Evidence-in-Chief (AEIC)
- There are 2 modes of commencing an action: by writ or by originating summons. Each party in a civil proceeding commenced by writ action must file and exchange Affidavits of Evidence-in-Chief (AEIC).
- AEICs contain sworn statements by the parties’ witnesses which will stand as their testimony at trial. Witnesses will be cross-examined on their AEICs during trial.
- If parties wish to give evidence orally instead of through an AEIC, permission of the court is first required.
- A witness cannot, without the court’s permission, give evidence-in-chief at trial which is not contained in his affidavit. If the witness wishes to testify on events that occurred after his/her affidavit had been filed, the court has power to direct that a supplementary affidavit be exchanged to include such events.
- The AEIC that has been exchanged between the parties cannot be amended. If an error is discovered, the witness has to swear on a fresh affidavit explaining how the error came about and correcting the error.
- AEICs are not used in criminal cases.
Affidavits of Assets and Means
- Affidavits of Assets and Means are only used in divorce cases.
- After the granting of an interim judgment for a divorce case, if parties have decided to apply for ancillary relief, both parties would have to submit an Affidavit of Assets and Means to the court. They would have to disclose all the information on their assets, income, expenses, liabilities and financial and non-financial contributions made to the family.
Affidavit for bail and release on personal bond
- Affidavits for bail and release on personal bond are used in criminal cases.
- This affidavit is required, unless otherwise stated, in an application to the High Court for bail or release on personal bond.
- The affidavit must contain sufficient facts to enable the court determine whether or not the bail or release should be granted.
Content of Affidavits
The contents of an affidavit depend on the type of affidavit you are filing. For civil proceedings, the contents of the affidavit must follow Order 41 rule 5 of the Rules of Court.
A general rule for affidavits is that the deponent is only entitled to refer to facts of which he or she has personal knowledge. The deponent is not supposed to state his conclusions on his evidence or to include arguments which express his point of view.
Bombastic language, legal arguments and embellishments also should not be included in an affidavit.
As a summary, an affidavit:
- Contains facts within the affiant’s personal knowledge;
- Is based on direct observation and personal experience; and
- May contain statements of belief but there must be some basis for the belief so stated.
The court has power to reject scandalous, irrelevant or oppressive matters present in an affidavit. The court also has inherent power to take an affidavit off the file or disallow costs if the affidavit is too long-winded.
Full and Frank Disclosure Required
Full and frank disclosure is required in affidavits. This means that the deponent must disclose to the court everything they know that might be material. This is even if what they know is prejudicial to their own claim.
The disclosure of material facts must be accompanied by all relevant context to constitute full and frank disclosure. The document is also to be brought to the judge’s attention to be considered to have been “disclosed”.
If there is non-disclosure or insufficient disclosure, the affidavit, or the application to which the affidavit applies, may be set aside.
Format of Affidavits
Affidavits must be written in specific format as prescribed by the State Courts Practice Directions, Supreme Court Practice Directions or Family Justice Practice Directions, whichever is applicable depending on which court the case is being heard in.
Some affidavits come with a prescribed template provided by law. These are “forms” where deponents are provided guidance on what must be included in the affidavit.
For example, Form 206 is the template provided in the Family Justice Practice Directions for what needs to be disclosed and included in an Affidavit of Assets and Means.
For civil proceedings, affidavits must also follow the format stated in Order 41 rule 1 of the Rules of Court. For example, the affidavit must be divided into paragraphs that are numbered consecutively with each paragraph confined to a distinct portion of the subject written.
If the affidavit format requirements are not complied with, the court may reject the affidavit. The court may also order costs against the non-complying party.
How to Swear or Affirm an Affidavit
Process of swearing/affirming an affidavit
Affidavits must be sworn or affirmed by the deponent before the court or a person acting judicially, usually by a Commissioners for Oaths in Singapore.
The deponent must therefore sign the affidavit in the presence of a Commissioner for Oaths for the affidavit to be valid.
Read our other article for the fees charged by Commissioners for Oaths for affirming an affidavit in Singapore.
Affirming in a foreign language
If the deponent is unable to understand English, the deponent may swear or affirm the affidavit before a Commissioner for Oaths proficient in a language or dialect that the deponent speaks and understands.
Alternatively, a qualified interpreter can be engaged to ensure that the deponent fully understands the content of the affidavit before affirmation.
Affirmation by a company
A letter of authorisation through a board resolution may be required as well to show that the officer is authorised to affirm the affidavit.
Affirmation of affidavits while overseas
Affidavits can be affirmed overseas as well. For more information, please refer to our article on how to affirm an affidavit outside of Singapore.
Publication of affidavits
Affidavits should not be published in the public domain before they have been admitted as evidence. Such publication could risk prejudicing or interfering with court proceedings, and undermine the administration of justice as a whole.
Publication of affidavits which have not been adduced as evidence may amount to contempt of court which can lead to fines and/or imprisonment.
Filing of Affidavits
Where required, affidavits can be filed physically at the LawNet service bureaus as well.
What Happens After Your Affidavit has been Admitted as Evidence?
For actions commenced by writ, the witness who made the affidavit must generally attend trial for cross-examination.
In any other case, such as applications made by originating summons, it is usually unnecessary for the witnesses who file affidavits to be cross-examined. However, the court may still order the witness to be cross-examined if required.
Regardless of whether the action is commenced by writ or by originating summons, the court has the power to order that the evidence be given orally if it thinks it would be just to do so.
If the witness does not attend the hearing even though he/she has been ordered by the court to be cross-examined, the witness’ affidavit will not be received as evidence unless the court gives permission for its admission.
As different types of affidavits are regulated by multiple rules, the process of writing and submitting an affidavit may be daunting to the layperson.
It is therefore recommended that you engage a qualified lawyer to assist you should you need to draft and/or file an affidavit.
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