You are an advocate representing the plaintiff in a civil trial. During the proceedings, it becomes apparent that a key witness is unable to attend court due to illness. This witness possesses evidence crucial to your client’s case, and failure to record their testimony could significantly prejudice your client. However, the witness is willing and able to provide sworn evidence from home or another location outside the court. As counsel, you must ensure that the witness’s evidence is lawfully recorded, remains admissible, and does not delay the trial unnecessarily.

You are an advocate representing the plaintiff in a civil trial. During the proceedings, it becomes apparent that a key witness is unable to attend court due to illness. This witness possesses evidence crucial to your client’s case, and failure to record their testimony could significantly prejudice your client. However, the witness is willing and able to provide sworn evidence from home or another location outside the court.

As counsel, you must ensure that the witness’s evidence is lawfully recorded, remains admissible, and does not delay the trial unnecessarily.

Answer: Under Section 56 and Order XXVI Rules 1 and 2 of the Civil Procedure Code, Cap. 33 R.E. 2023, a court may order that a witness’s evidence be recorded on commission if the witness is unable to attend due to sickness, absence, or other sufficient cause.

To proceed:

1. File an application (Chamber Summons) requesting issuance of a commission to record the witness’s testimony.
2. Support the application with an affidavit explaining:
• The reason the witness cannot attend court (attach a medical certificate if due to illness).
• The importance of the witness’s evidence to the case.
• The proposed location and manner for recording the testimony.

Rationale:

• Recording evidence on commission ensures that the trial proceeds without unnecessary delay.
• Preserves the integrity and admissibility of testimony from witnesses unable to physically attend court.
• The court has discretion to set conditions to ensure fairness, including allowing cross-examination of the witness during the commission.

Documents to Draft:

• Chamber Summons requesting the commission.
• Supporting Affidavit with explanation, medical certificate (if applicable), and proposed arrangements for recording testimony.

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