ORDER
38
EVIDENCE: GENERAL
General rule: Witnesses to be examined (O. 38, r.
1)
1.
Subject
to these Rules and the Evidence Act (Chapter 97), and any other
written law relating to evidence, any fact required to be proved
at the trial of any action begun by writ by the evidence of witnesses
shall be proved by the examination of the witnesses in open Court.
Evidence by affidavit (O. 38, r. 2)
2.
—(1)
Without
prejudice to the generality of Rule 1, and unless otherwise provided
by any written law or by these Rules, at the trial of an action
commenced by writ, evidence in chief of a witness shall be given
by way of affidavit and, unless the Court otherwise orders or the
parties to the action otherwise agree, such a witness shall attend
trial for cross-examination and, in default of his attendance, his
affidavit shall not be received in evidence except with the leave
of the Court.
(2)
In any cause or matter begun by originating
summons and on any application made by summons, evidence shall be
given by affidavit unless in the case of any such cause, matter
or application any provision of these Rules otherwise provides or the
Court otherwise directs, but the Court may, on the application of
any party, order the attendance for cross-examination of the person
making any such affidavit, and where, after such an order has been
made, the person in question does not attend, his affidavit shall
not be used as evidence without the leave of the Court.
(3)
Unless the Court otherwise orders,
no deponent to an affidavit may at the trial or hearing of any cause
or matter give evidence in chief, the substance of which is not
contained in his affidavit except in relation to matters which have
arisen after the filing of the affidavit.
(4)
Notwithstanding paragraph (1), (2)
or (3), the Court may, if it thinks just, order that evidence of
a party or any witness or any part of such evidence be given orally at
the trial or hearing of any cause or matter.
(5)
Nothing in this Rule shall make admissible
evidence which if given orally would be inadmissible.
Evidence by particular facts (O. 38, r. 3)
3.
—(1)
Without
prejudice to Rule 2, the Court may, at or before the trial of any action,
order that evidence of any particular fact shall be given at the
trial in such manner as may be specified by the order.
(2)
The power conferred by paragraph (1)
extends in particular to ordering that evidence of any particular
fact may be given at the trial —(a)
by statement on oath of information
or belief;
(b)
by the production of documents or
entries in books;
(c)
by copies of documents or entries
in books; or
(d)
in the case of a fact which is or
was a matter of common knowledge either generally or in a particular
place, by the production of a specified newspaper which contains
a statement of that fact.
Limitation of expert evidence (O. 38, r. 4)
4.
[
Deleted by S 613/2000]
Limitation of plans, etc., in evidence (O. 38, r.
5)
5.
Unless,
at or before the trial, the Court for special reasons otherwise
orders, no plan, photograph or model shall be receivable in evidence
at the trial of an action unless at least 21 days before the commencement
of the trial the parties, other than the party producing it, have
been given an opportunity to inspect it and to agree to the admission
thereof without further proof.
Expert evidence in action arising out of accident
(O. 38, r. 6)
6.
[
Deleted by S 281/91 and S 59/92]
Revocation or variation of orders under Rules 2 to
5 (O. 38, r. 7)
7.
Any
order under Rules 2 to 5 (including an order made on appeal) may,
on sufficient cause being shown, be revoked or varied by a subsequent
order of the Court made at or before the trial.
Application to trials of issues, references, etc.
(O. 38, r. 8)
8.
Rules
1 to 7 shall apply to trials of issues or questions of fact or law,
references, inquiries and assessments of damages as they apply to
the trial of actions.
Depositions when receivable in evidence at trial
(O. 38, r. 9)
9.
—(1)
No
deposition taken in any cause or matter shall be received in evidence at
the trial of the cause or matter unless —(a)
the deposition was taken in pursuance
of an order under Order 39, Rule 1; and
(b)
either the party against whom the
evidence is offered consents or it is proved to the satisfaction
of the Court that the deponent is dead, or beyond the jurisdiction
of the Court or unable from sickness or other infirmity to attend the
trial.
(2)
A party intending to use any deposition
in evidence at the trial of a cause or matter must, at a reasonable
time before the trial, give notice of his intention to do so to the
other party.
(3)
A deposition purporting to be signed
by the person before whom it was taken shall be receivable in evidence
without proof of the signature being the signature of that person.
Court documents admissible or receivable in evidence
(O. 38, r. 10)
10.
—(1)
Office
copies of writs, records, pleadings and documents filed in the Registry
shall be admissible in evidence in any cause or matter and between
all parties to the same extent as the original would be admissible.
(2)
Without prejudice to the provisions
of any written law, every document purporting to be sealed with
the seal of the Supreme Court or the Subordinate Courts, as the
case may be, shall be received in evidence without further proof,
and any document purporting to be so sealed and to be a copy of
a document filed in, or issued out of, the Supreme Court or the
Subordinate Courts shall be deemed to be an office copy of that
document without further proof unless the contrary is shown.
Evidence of consent of new trustee to act (O. 38,
r. 11)
11.
A
document purporting to contain the written consent of a person to
act as trustee and to bear his signature verified by some other
person shall be evidence of such consent.
Evidence at trial may be used in subsequent proceedings
(O. 38, r. 12)
12.
Any
evidence taken at the trial of any cause or matter may be used in
any subsequent proceedings in that cause or matter.
Order to produce document at proceeding other than
trial (O. 38, r. 13)
13.
—(1)
At
any stage in a cause or matter the Court may order any person to
attend any proceedings in the cause or matter and produce any document,
to be specified or described in the order, the production of which
appears to the Court to be necessary for the purpose of that proceeding.
(2)
No person shall be compelled by an
order under paragraph (1) to produce any document at a proceeding
in a cause or matter which he could not be compelled to produce
at the trial of that cause or matter.
Form and issue of subpoena (O. 38, r. 14)
14.
—(1)
A
subpoena must be in Form 67, 68 or 69, whichever is appropriate.
(2)
Issue of a subpoena takes place upon
its being sealed by an officer of the Registry.
(3)
Before a subpoena is issued, a Request
4 in Form 70 for the issue of the subpoena
must be filed in the Registry; and the Request4 must
contain the name and address of the party issuing the subpoena,
if he is acting in person, or the name of the firm and business
address of that party’s solicitor.
(4)
The Registrar may, in any case, revoke
a subpoena upon application by any person or on his own motion.
(5)
Any party who is dissatisfied with
any decision of the Registrar made under this Rule may apply to
a Judge of the High Court or a District Judge, as the case may be, for
a review of that decision.
(6)
An application under this Rule shall
be made by summons supported by an affidavit, within 14 days of
that decision.
More than one name may be included in one subpoena
to testify5(O. 38, r.
15)
15.
The
names of 2 or more persons may be included in one subpoena to testify
5.
Subpoena to produce documents1 (O.
38, r. 16)
16.
—(1)
A
subpoena to produce documents1 must contain
the name of one person only.
(2)
Any person served with a subpoena
to produce documents1 shall sufficiently comply
if he causes the document to be produced without attending personally.
Amendment of subpoena (O. 38, r. 17)
17.
Where
there is a mistake in any person’s name or address in a
subpoena, then, if the subpoena has not been served, the party by
whom the subpoena was issued may have the subpoena re-sealed in
the correct form by filing a second Request4 under
Rule 14 (3) endorsed with the words “Amended and re-sealed”.
Service of subpoena (O.38, r.
18)
18.
—(1)
Unless
the Court otherwise orders, a subpoena must be served personally and
the service shall not be valid unless effected within 12 weeks after
the date of issue of the subpoena.
(2)
A subpoena shall not be served on
any person outside the jurisdiction.
Duration of subpoena (O. 38, r. 19)
19.
A
subpoena continues to have effect until the conclusion of the trial
at which the attendance of the witness is required.
Court records (O. 38, r. 20)
20.
—(1)
A
subpoena to produce documents1 shall not require
an officer of the Supreme Court or of any Subordinate Court to produce
the records of the court.
(2)
If the original of any record of a
Court or of any document filed in such Court is for any special
reason required, a request for the production thereof may, on the application
of the party requiring the record or document, be addressed by the
Registrar to that Court.
(3)
No mark shall be placed upon any record
or document produced under this Rule.
Attendance of prisoner as witness or party (O. 38,
r. 21)
21.
—(1)
An
application for an order under section 38 of the Prisons Act (Chapter 247)
for the production before the Court of a person confined in prison
may be made by ex parte summons supported by an affidavit in Form
71.
(2)
Unless the Court otherwise orders,
the costs of conveyance of the witness in safe custody to and from
the Court must be paid in the first instance by the party on whose
application the order was issued and shall be costs in the cause.
(3)
An order for the production of such
person must be in Form 72.
Tender of expenses (O. 38, r. 22)
22.
A
witness shall not be compelled to attend on a subpoena unless a
reasonable sum to cover his expenses of going to, remaining at,
and returning from, Court is extended to him.
Affidavit of service of subpoena (O. 38, r. 23)
23.
An
affidavit filed for the purpose of proving the service of a subpoena
must state when, where, how and by whom the service was effected.