The Court may accept, in the interest of justice, an affidavit prepared by a witness who passed away. This was held in a decree delivered in Av Paul Micallef Grimaud noe -v- Venta Invest & Trade Limited et on 20 March 2023 by Mr Justice Ian Spiteri Bailey in the First Hall of the Civil Court.
Venta Invest & Trade Limited filed an application asking the court to allow a witness to be produced by means of an affidavit since the witness was not listed in the statement of defence. The application also requested that a legal opinion of a foreign lawyer be included in the acts of this case. The Defendant company explained that one of its witnesses died during the case and his wife is an heir. Although the witness’s widow is not listed as a witness, it is now important that she testifies and she had prepared an affidavit. Furthermore, a legal opinion is required on the transfer of the intellectual property of the Defendant company following the witness’s death and on how it is treated in Bulgaria.
The application included a number of documents attached, including the affidavit of the deceased.
The Plaintiff objected to this because if the affidavit of the deceased is admitted, then it will not have an opportunity to do a cross-examination and therefore, it will be at a disadvantage.
The Court analysed Article 158(5) of the Code of Organisation and Civil Procedure, which states that a reply to a sworn application, must include a list of witnesses and if there are witnesses not included in this list, then there must be either an authorisation from the counter-party or else the Court may authorise if it is in the interest of justice. The Court pointed out that the Plaintiff did not give his authorisation, so much so, he listed a number of reasons for his objection. Therefore, the Court had to see whether adding the witnesses is in the best interest of justice.
In Cutalex Tourist Company Limited -v- Pamela Rose Wathen pro et noe decided on 30 May 2003, held that the principle of admitting witnesses should be these should be declared before the proceedings kick off and not after. The Court commented that some of the documents presented concern the demise of the witness, including his death certificate. These documents are critical for the case in hand. The Court further commented that no one could predict that the witness would pass away. Therefore, the Court admitted these documents in the acts of the case.
As to the right of a cross examination the court quoted from Micallef Insurance Agency Limited -v- Mario Bugeja et decided on 24 January 2014 by the First Hall of the Civil Court in its Constitutional Jurisdiction, which held the fact that the witness died, does not make his testimony inadmissible. In fact, Article 600 of the Code of Organisation and Civil Procedure (COCP) allows that declaration made by the deceased be produced as evidence. The Court held that it understood that it would have been better if there was an opportunity for a cross examination, however, the fact that a cross examination cannot take place because the person who approved the affidavit passed away, does not mean that the affidavit is inadmissible. The Court, therefore, acceded that the affidavit of the deceased witness be presented in the acts of the case.
The Plaintiff further objected to the widow’s affidavit because it was all hearsay evidence. The Court indicated that Article 598 and 599 of the COCP state that as a rule hearsay evidence is not allowed, however the court may ask the witnesses to name the person from whom the witness heard what was being said.
The Court can also allow hearsay evidence if that what was said is of substantial importance or else if the witnesses cannot be produced and the evidence can be substantiated by other evidence.
This was tested in Rev Joe Borg et -v- Felix Agius decided on 29 April 2004, where the Court concluded that the Court allows other witnesses to testify on what another witness had declared. In another judgement Lorenzo Pace noe et v Michael Cremona decided by the Court of Appeal on 12 July 2007 it was held that even hearsay evidence has its value as evidence. In this case the deceased witness obviously is unable to testify and therefore the second best would be his affidavit. The Court’s duty is to try to discover the truth and if the witness is now deceased then the Court accepts his affidavit.
The Court then moved to uphold the Defendant’s applications.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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