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GAZETTE
AUGUST/SEPTEMBER
SOCIETY OF YOUNG SOLICITORS
COMMISSIONERS FOR OATHS
The essential function of a Commissioner for Oaths is the
swearing of persons who come before him to the truth of
evidence which has been reduced to writing in a specified
form. It is not his duty to be concerned with the truth of
the facts set out in the affidavit but it is his duty to
observe strictly the code whereby he administers the oath.
Before taking the deposition the Commissioner must in
particular ensure that:—
1. The deponent is present in person before him.
2. The deponent has read and fully understands the
contents of the affidavit and is prepared to swear
unreservedly to the truth thereof.
3. The affidavit is in the prescribed form.
4. The form of affidavit has been fully completed and
there are no blanks which require to be completed
subsequently.
The form of affidavit is prescribed by Order 40 of the
Rules of the Superior Courts (S.I. 72 of 1969). The
principal requirements are as follows:—
1. Affidavits must be confined to such facts as the
deponent is able of his own knowledge to prove (Rule
4).
2. The jurat or attestation must state the date on which
and the place where the deposition is made (Rule 6).
3. Every affidavit must be drawn up in the first person
and must be divided into paragraphs to be numbered
consecutively (Rule 8).
4. Every affidavit must state the description and true
place of abode of the deponent and every affidavit of
service must state when, where, and how, and by
whom, such service was effected and in the case of
delivery to any person, must state that the deponent
was at the time of such delivery acquainted with the
appearance of such person (Rule 9).
5. No affidavit having in the jurat or body thereof any
interlineation, alteration, or erasure may, without
leave of the Court, be filed, read or made use of in any
matter pending in Court unless the interlineation or
alteration (other than by erasure) is authenticated by
the initials of the person taking the affidavit; nor, in
the case of an erasure, unless the words or figures
appearing at the time of taking the affidavit be written
on the erasure are rewritten and signed or initialled in
the margin of the affidavit by the person taking it.
(Rule 13). It is not permissible to bracket a number of
alterations and place one initial thereat to cover them
all. No alteration can properly be made in any
affidavit after it has been sworn and any
Commissioner initialling such an alteration would
render himself liable to the revocation of his
commission. Such affidavit must be resworn by the
deponent, and a fresh jurat, commencing with the
word "resworn" should be placed below the earlier
jurat. While the deponent must attend on the
reswearing he is not required to sign the second jurat.
6. A Commissioner is required to certify in the jurat of
every affidavit, that he himself knows the deponent or
that he knows some person named in the jurat who
certifies to his knowledge of the deponent. He is
therefore not empowered to take aiffidavits from
persons whom he has not met before and who are not
introduced to him by some person with whom he is
acquainted (Rule 14).
7. No affidavit is sufficient if sworn before the solicitor
acting for the party on whose behalf the affidavit is to
be used (Rule 17).
8. Any affidavit which would be insufficient if sworn
before the solicitor himself is deemed to be insufficient
if sworn before his clerk or partner (Rule 18).
Exhibits referred to in an affidavit should not be
annexed thereto but should be referred to as exhibits
marked with separate letters of the alphabet and endorsed
with a certificate signed by the Commissioner to identify
it with the affidavit.
The frequency with which a person is nowadays
required to make affidavits and statutory declarations has
tended to cause the very essence of a Commissioner's
duties to be lost sight of and has resulted in
Commissioners all too often being asked to abuse their
powers and to depart in some way from the code under
which the oath is required to be administered. Quite apart
from the fact that for the Commissioner to do so is for
him to show scant regard for his oath of office it also
undermines the nature of the oath and the confidence
which both the profession and the public have in its
administration.
That confidence must be maintained and consideration
ought to be given to the manner in which the present
abuses might be got rid of. It is all important that the oath
be properly administered and there is always a serious
danger that in making a thing too common it is treated
with less respect.
It should be borne in mind that members of the public
have rightly come to expect and should be required to
adhere to a certain formality in the administration of an
oath and failure by the Commissioner to observe the
necessary formalities must be detrimental to the value of
the oath and can only lead to scandal. It is therefore
incumbent on the Commissioner to ensure that all persons
appearing before him fully understand the facts contained
in the affidavit, the purpose for which the affidavit is
required and the importance of the oath in relation
thereto.
Many of the present abuses must undoubtedly arise
from the number of relatively trivial documents which
require to be sworn or declared before a Commissioner
and some of these could well be replaced by some form of
Solicitors certificate.
Suggestions from colleagues would be welcome.
Is the Declaration of Compliance of any great value
when the Companies Registration Office check so
thoroughly all the documents filed?
Is there any real advantage in having the witness to a
deed swear the Memorial before it can be registered when
the Deed and Memorial are compared in the Registry of
Deeds?
Is it really necessary for a Master to appear before one
of his Commissioner colleagues to declare that his
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