AN ANALYSIS OF THE RULES OF COURT (AMENDMENT NO 3) RULES OF 1997 AND THE RULES OF COURT (AMENDMENT) RULES OF 1998

Citation(1998) 10 SAcLJ 300
Date01 December 1998
Published date01 December 1998
A. THE RULES OF COURT (AMENDMENT NO 3) RULES OF 1997

The Rules of Court (Amendment No 3) Rules, 1997 ((S 483/97) came into effect on 1st December, 1997.1 They concern the modification of the procedure in respect of the warrant of arrest in admiralty actions and the introduction of a new Order 89D governing oaths and affirmations pursuant to the Oaths Act.2

ORDER 70: ADMIRALTY PROCEEDINGS3
Background to, and nature of, the amendments

The amendments affect the procedure governing the warrant of arrest. Prior to their replacement, paragraphs (2) and (3) of Order 70, rule 4 provided:

(2) A party applying for the issue out of the Registry of a warrant to arrest any property shall before the issue of such warrant procure a search to be made in the caveat book for the purpose of ascertaining whether there is a caveat against arrest in force with respect to that property.

(3) A warrant of arrest shall not be issued until the party applying for it has filed a praecipe in Form 157 requesting issue of the warrant together with an affidavit made by him or his agent containing the particulars required by paragraphs (7) and (8) so, however, the court may, if it thinks fit, allow the warrant to issue notwithstanding that the affidavit does not contain all those particulars.

Pursuant to the amendments, paragraphs (2) and (3) of Order 70, rule 4 now state:

(2) Before a warrant to arrest any property is issued, a party applying for it must-

  1. (a) file a praecipe in Form 157 requesting issue of the warrant; and

  2. (b) procure a search to be made in the caveat book for the purpose of ascertaining whether there is a caveat against arrest in force with respect to that property.

(3) A warrant of arrest shall not be issued until the party applying for the warrant has filed an affidavit made by him or his agent containing the particulars required by paragraphs (6) and (7); however, the court may, if it thinks fit, allow the warrant to issue notwithstanding that the affidavit does not contain all those particulars.

Effect and rationale of amendments

As can be seen, the amendments re-organise the two paragraphs so that the conditions for the issue of the warrant of arrest are more clearly defined. In particular, the procedure concerning the filing of the praecipe has been transposed from paragraph (3) to paragraph (2) so that paragraph (3) is only concerned with the affidavit requirements. Note that paragraph (3) now refers to the particulars in paragraphs (6) and (7) (previously, the reference was to paragraphs (7) and (8) even though there was no paragraph (8)).

ORDER 89D: OATHS ACT4
Background to, and nature of, the amendments

The new Order 89D was introduced pursuant to section 6 of the Oaths Act, which provides that all oaths and affirmations are to be administered according to such forms and with such formalities as are prescribed by rules made under section 80 of the Supreme Court of Judicature Act.5 Prior to advent of Order 89D, oaths and affirmations were administered ‘according to the forms and with the formalities now in use’.6

Order 89D consists of 5 rules: Application and interpretation;7 forms and formalities of oaths;8 forms and formalities of affirmations;9 provisions for persons who are physically incapable of taking an oath or making an affirmation in the prescribed manner;10 and the form of jurat and marking of an exhibit in an affidavit.11

Two new forms, Forms 197 and 198, were introduced in conjunction with the new Order. Form 197 concerns the ‘Form of Oath’ for the purpose of persons giving evidence in court or in a tribunal or enquiry or in ‘such other hearing’, or by affidavit, pursuant to section 4(1)(a) of the Oaths Act (Form (a) of Form 197). This Form also applies to interpreters in respect of their duties pursuant to section 4(1)(b) of that Act (Form (b) of Form 197). Form 198 is the ‘Form of Affirmation’ and is similarly sub-divided for persons giving evidence and interpreters.12

Effect and rationale of amendments

Rules 2, 3 and 4 concern the substantive aspects of the oath and affirmation. Rule 2(2) provides:

The person taking the oath may place his left hand on the Bible or hold it in any manner as he may desire not repugnant to justice or decency…and shall raise his right hand and say or repeat after the officer administering the oath the words set out, where applicable, in Form 197 or in any other form as may be described by law.

Therefore, the person (whether swearing an affidavit or giving evidence at a hearing) must maintain contact with the Bible, whether by placing his left hand on the Bible or by holding it in an appropriate manner (that is, a manner which is ‘not repugnant to justice or decency’). This brings to mind the case of Chiam See Tong v Ling How Doong & Ors,13 in which there was some controversy over whether it was obligatory for the person taking an oath to place his hand on the Bible.14 Rule 2(2) clarifies the position. Accordingly, a person who does not wish to place his hand on the Bible or to hold it in any manner (perhaps because of a personal or religious conviction as was the case in Chiam See Tong v Ling How Doong & Ors), would not take an oath under rule 2(2). He might decide to affirm (section 5(1)(b) of the Oaths Act allows a person to affirm if has a conscientious objection to taking an oath), in which case rule 3(2) provides:

The person making the affirmation shall raise his right hand and say or repeat after the officer administering the affirmation the words set out, where applicable, in Form 198 or in any other form as may be described by law.

Alternatively, he might be able to rely on section 7 of the Oaths Act which states that a person may give evidence on oath or affirmation:

‘in any form common amongst or held binding by persons of the race or persuasion to which he belongs, and not repugnant to justice or decency…’

The person who seeks to take an oath or make an affirmation the form of which does not meet the requirements of rule 2(2) or 3(2) respectively, may, if he can establish that conditions in section 7 of the Oaths Act are satisfied, ask to take the oath or make the affirmation in the proposed mode. The section makes it clear that it is for the court to decide whether to allow the oath or affirmation to be administered in the proposed form, and it is to exercise its discretion as ‘it thinks fit’.15 The person concerned has no automatic right to take an oath or make an affirmation contrary to rule 2(2) and 3(2). The exercise of the discretion must depend on whether the proposed form is ‘common’, a matter that is to be determined by the court.

Also note in this context that the prescribed wording of the oath and affirmation in Forms 197 and 198 may be varied where an alternative wording is prescribed by law.16

Special provision is made for the situation in which the person is physically incapable of taking an oath or affirming in the prescribed manner (for example, his movements may be restricted or he may be unable to speak). Rule 4 provides:

‘The officer may, in the case of a person who is physically incapable of taking the oath or making the affirmation in the form and manner prescribed in Rule 2(2) or 3(2), as the case may be, administer the oath or affirmation in such form and manner as is appropriate or expedient in the circumstances.’

This rule appears to be sufficiently flexible to allow any form of oath or affirmation which enables the handicapped witness or deponent to take the oath or make the affirmation in a manner which he regards as binding.

APPENDIX B

Appendix B is amended for the purpose of clarification of the fees for items 118 to 126. The words ‘Singapore Court’ in the third column are replaced by the words ‘Supreme Court’.17

B. THE RULES OF COURT (AMENDMENT) RULES OF 1998

The Rules of Court (Amendment) Rules, 1998 (S 425/98) came into effect on 1st September, 1998.18 They concern service of process (Orders 10 and 11), the procedure governing injunctive relief (Order 29), further arguments and appeals (Order 56 and Order 57), and non-contentious probate proceedings (Order 71). Furthermore, there are limited remedial amendments to Orders 73 and 74. A new form has been incorporated in Appendix A in conjunction with the amendments to Order 71. Additional items have been included in Appendix B and the format has been altered slightly.

The amendments to Orders 10 and 11 apply to proceedings commenced on or after 1st September, 1998.19 That part of the amendment to Order 29 which extends the procedure under that Order to all originating processes operates immediately. The changes concerning the issue of the originating process and the right of the defendant to apply for a discharge of the injunction operate in relation to applications made on or after 1st September, 1998.20 The amendments to Order 51 apply to appeals to the Court of Appeal in respect of which the notice referred to in Order 57, rule 5(2) (registrar’s notice of availability of the record of proceedings) was served on or after 1st September, 1998.21 All other amendments operate immediately.

ORDER 10: SERVICE OF ORIGINATING PROCESS: GENERAL PROVISIONS22

The amendment concerns Order 10, rule 1(4) and must be read in the context of the previous amendment to this paragraph effected by the Rules of Court (Amendment No 2) Rules of 199723. These amending rules (ie, the Rules of Court (Amendment No 2) Rules of 1997) introduced a new procedure by which the plaintiff is required to file a memorandum of service immediately after the service of a writ on a defendant. If this memorandum is not filed within the period of the validity for service (or

extended validity)24 of the writ, the action is deemed to have been discontinued. The procedure replaces the process of endorsement of service on the writ. Order 10, rule 1(4), as modified by those amending rules, provides:

Where a writ is duly served on a defendant...

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