The Gazette 1977

GAZETTE

AUGUST/SEPTEMBER

SOCIETY OF YOUNG SOLICITORS

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 131

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