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Banking litigation and value of witness statements—25

2019-02-10 07:17:29

By Paul Kibuuka @tzpaulkibuuka

At the trial of a banking dispute, facts that are required to be proved must be proved by the examination of witnesses. The questioning of a witness by the party who called him is called the “examination-in-chief”. In proceedings commenced by plaint in the Commercial Division of the High Court of Tanzania (“the Commercial Court”), the examination-in-chief of a witness is done by way of a witness statement.

But few banking customers who become litigants really understand what witness statements are and the mechanics of the same. There is also a lot of confusion with respect to affidavits and witness statements. Depending on whether your legal counsel is able to obtain a relevant, compelling, and truthful witness statement, your business activities could be at stake. There are few, if any, claims to a banking dispute that succeed without robust evidence to buttress a party’s claim.

The High Court (Commercial Division) Procedure Rules, 2012 (“the principal Rules”), set out the procedure governing witness statements. However, two weeks ago, on 22 January 2019, Chief Justice Prof. Ibrahim Hamis Juma signed the High Court (Commercial Division) Procedure (Amendment) Rules, 2019 (“the amendment Rules”), that introduce amendments to the principal Rules. The amendment Rules are to be read as one with the Principal Rules.

Witness statements made on oath are the “evidence in chief” of the witness. The witness does not need to present oral evidence of the facts contained in his statement, but rather, the witness is asked questions about the statement at the trial. As such, your legal counsel must consider whether the evidence of your prospective witnesses is relevant and, if so, interview the witnesses before preparing their witness statements.

In crafting every witness statement, your legal counsel should assist the witness to, so far as reasonably practicable, state that evidence in the witness's own words. Therefore, the witness statement must not contain any statement of fact which your legal counsel discerns that the intended witness does not believe to be true. In this connection, the witness must not be subjected to any pressure to give false statements of facts; otherwise, the credibility of that witness might be impaired during the cross-examination. Impaired credibility hurts court cases. 

If the witness statement contains any matters of information or belief which are admissible, the source of those matters must be disclosed. Hence, it is necessary to note that the Third Schedule to the principal Rules prescribes the form which witness statements must be markedly given. 

The principal Rules and the amendment Rules are silent on whether the Commercial Court can allow a witness to use a defective witness statement, for example if the statement is not dated or signed. But it is understood that the Commercial Court has discretion and inherent powers to order a witness to amend his statement before cross-examination without removing, adding or substituting any piece of evidence in the statement. 

A witness statement must be filed within fourteen days of concluding the final pre-trial conference, according to the amendment Rules. Previously, the principal Rules required the statement to be filed within seven days of completing mediation. The justification of serving the witness statement is to eliminate surprise about the evidence to be produced in court should the case go to trial. 

The obligation of a party to serve the witness statement as directed by the Commercial Court is independent of the other party’s obligation to file and serve its respective statement. It is not advisable to wait until the last minute to file or serve the witness statement. In the absence of a sufficient reason to warrant the Commercial Court to enlarge time prescribed for filing, you may taste the bitterness of Rule 55 of the amendment Rules that provides for the consequences of failure to serve a witness statement. 

A person who gives evidence by way of an affidavit is known as a “deponent”, and the one who gives evidence by means of a witness statement is called a “witness”.  A witness statement is not an affidavit. Whereas a witness statement is governed by the principal Rules and the amendment Rules, an affidavit is governed by the Civil Procedure Code, Cap 33 (Order XIX).

A witness statement can make or break your case; competent legal counsel can help you ensure that your witness statement conforms to the requirements of the principal Rules and the amendment Rules. 

Paul Kibuuka is the managing partner of Isidora & Company Advocates, a corporate, commercial and financial law firm. This article was published in The Citizen on Saturday, 9 February 2019

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