Nedship Bank N. V. v. The "Zoodotis"

The Plaintiff mortgagee was unable to produce the deponent of its affidavit of claim for cross-examination and brought this application for leave to substitute another witness for cross-examination. The Court stated that the general rule was affidavits will be struck out if the deponent is not produced for cross-examination and replacement affidavits will not be allowed in the absence of justifiable grounds. The Court concluded, however, that to strike out the affidavit would be unjust and unjustifiable and allowed the Plaintiff to file a second affidavit adopting the contents of the first and to produce the deponent of the second affidavit for cross-examination. The Court further held that the cross-examining party had the right to chose the witness who would depose the second affidavit and be produced for cross-examination.