Chapter 29 - Affidavits

Question 1

AFFIDAVITS

Overview

Answer 1

1) General principles on affidavit
2) Forms & formats of affidavit
3) Affidavit by two or more deponents
4) Affidavits by illiterate or blind person
5) Contents of affidavit
6) Issues on contents of affidavit
7) Jurats
8) Issues on jurats
9) Defective affidavit

Question 2

GENERAL PRINCIPLES ON AFFIDAVITS

Overview

Answer 2

1) What is an affidavit
2) Contents of affidavit
3) Applicability of EA
4) Affidavit as pleadings
5) Affidavit in civil proceedings

Question 3

GENERAL PRINCIPLES ON AFFIDAVITS

What is an affidavit

Answer 3

• A sworn & written statement under oath.
• Contains certain facts within the deponent’s knowledge.
• Can be used as evidence of the matters deposed therein.
• Statement made in an affidavit must be the truth and not fabricated.

Question 4

GENERAL PRINCIPLES ON AFFIDAVITS

Contents of affidavit

Answer 4

• Intitulement;
• Statement of facts;
• Forms of jurat;
• Exhibits.

Question 5

GENERAL PRINCIPLES ON AFFIDAVITS

Applicability of EA

Answer 5

S.2 EA:

• EA does not apply to affidavit.
• Any irregularities of an affidavit may not be raised based on EA.

Question 6

GENERAL PRINCIPLES ON AFFIDAVITS

Affidavit as pleadings

Answer 6

O.28, r.8:

• affidavit may be ordered to stand as pleadings when O.S is converted to writ.

Question 7

GENERAL PRINCIPLES ON AFFIDAVITS

Affidavit in civil proceedings

Answer 7

1) Affidavit in support:

• Legal action begun by O.S or NoA;
• Intends to be used as a mean of adducing evidence.

2) Affidavit of service:

• An affidavit supporting delivery of case-related papers to one or more parties in a legal matter;
• Certifies service of a notice, Summons, Writ or process.
  Sending representative must sign, swear to the statement therein.
• Act as evidence or proof that the documents have been served in the event no reply is received from the other party.

Question 8

FORMS & FORMAT OF AFFIDAVIT

Overview

Answer 8

1) Forms of affidavit
2) Exhibits
3) Signature

Question 9

FORMS & FORMAT OF AFFIDAVIT

Forms of affidavit

Answer 9

O.41, r.1:

• Must be sworn & affirmed.
• Averment as to the particulars of the deponent.
• Narration of facts in an affidavit must be neatly paragraphed.

Question 10

FORMS & FORMAT OF AFFIDAVIT

Exhibits

Answer 10

O.41, r.11:

• Must be annexed at the back of the affidavit;
• Marked with certain alphabetical caption.

Question 11

FORMS & FORMAT OF AFFIDAVIT

Signature

Answer 11

Mohd Nazir bin Badar Shair v Timbalan Dalam Negeri:

• the signature of a Commissioner of Oaths in an affidavit showing that it has been sworn before him is an official act;
• the affidavit must be presumed to have been regularly affirmed even though the jurat is on a completely new page unless the contrary is proved.

Question 12

AFFIDAVIT BY TWO OR MORE DEPONENTS

The law

Answer 12

O.41, r.2

Question 13

AFFIDAVIT BY ILLITERATE PERSON

Overview

Answer 13

1) The law
2) Meaning of illiterate
3) Requirement of certification

Question 14

AFFIDAVIT BY ILLITERATE PERSON

The law

Answer 14

O.41, r.3

Question 15

AFFIDAVIT BY ILLITERATE PERSON

Meaning of illiterate

Answer 15

Fulcrum Capital Sdn Bhd v Low Kon Yang:

• a person as disadvantaged as a (braille-untrained) blind person;
• a person who is ignorant of letters, whose ignorance is aptly described by the Malay term “buta huruf”.

Question 16

AFFIDAVIT BY ILLITERATE PERSON

Requirement of certification

Answer 16

Ravi a/l Suppiah v Timbalan Menteri Hal Ehwal Dalam Negeri & Anor:

• A person administering the oath must certify that the deponent is illiterate.

Question 17

CONTENTS OF AFFIDAVIT

Overview

Answer 17

1) The law
2) Facts able to prove
3) Source & ground of information
4) Hearsay, whether allowed
5) Matters which are scandalous, irrelevant or oppressive
6) Exhibits or annexed

Question 18

CONTENTS OF AFFIDAVIT

The law

Answer 18

O.41, r.5

Question 19

CONTENTS OF AFFIDAVIT

Facts able to prove

Answer 19

1) The law - O.41, r.5(1):
- Facts that deponents are able to prove
2) Non-party - Lori Malaysia Berhad v Arab-Malaysian Finance:
- a person who was not a party to the relevant transaction naturally had no personal knowledge of the matter.

Question 20

CONTENTS OF AFFIDAVIT

Source & ground of information

Answer 20

1) The law:
- O.41, r.5(2)
2) Scope:

Stating the source of information & grounds for believing the information.

3) Example of source - Dynacast (S) Pte Ltd v Lim Meng Siang & Ors:

• “Saya telah dinasihati oleh peguam cara saya dan sesungguhnya percaya bahawa saya mempunyai pembelaan yang bermerit dan oleh itu perkara ini harus diperbicarakan.”
• “Saya telah dinasihati oleh peguam cara saya” is the source of the information;
• “dan sesungguhnya percaya” is the grounds for believing that information.

Question 21

CONTENTS OF AFFIDAVIT

Source of information - serious allegation

Answer 21

Lee Meow Lim v Leew Meow Nyin:

• Since it is a serious allegation, the deponent of the affidavit, should disclose the source of information & belief.

Ref. JL Young Manufacturing Co Ltd:

• The English Court of Appeal has commented strongly on the irregularity of an affidavit founded merely upon information and belief, without giving the source of such information and belief.

Question 22

CONTENTS OF AFFIDAVIT

Source of information - failure to state source

Answer 22

1) J.L Young Manufacturing Co Ltd:

• Failure to state the source of information or belief renders the affidavit irregular;
• The affidavit is inadmissible as evidence, whether on an interlocutory or a final application.

2) Dynacast (S) Pte Ltd v Lim Meng Siang & Ors:

• If the sources are not so identified, they are purely hearsay evidence.
• An affidavit of information and belief which does not state the source of the information or belief is irregular and therefore inadmissible in evidence;
• As such statements of information or belief have no probative value unless the sources and grounds of the information and belief are revealed.

3) Seow Mui Kim v Perwira Habib Bank:

• Unless the offending parts are small compared to the complying parts, and the Court may ignore the offending parts instead of disallowing the use of the entire affidavit.
• Otherwise, it would be a material defect non-curable under O.2, r.1 or O.41, r.4.

Question 23

CONTENTS OF AFFIDAVIT

Hearsay, whether allowed

Answer 23

1) general - Datuk Bandar Kuala Lumpur v Zain Azahari bin Zainal Abidin (CA):

• Hearsay evidence may not be admissible by way of affidavit if the deponent has no knowledge;
• If the deponent is a public decision-maker, he must make full & frank disclosure of the source & ground.

2) interlocutory applications - Ahmed Ibrahim Bilal v Ketua Polis Negara (2011):

• By virtue of O.41, r.5(2), hearsay evidence may be included in an affidavit in interlocutory proceedings, provided that their sources & grounds are disclosed.
• Secondhand hearsay: not allowed as they are too “ easy”

Question 24

CONTENTS OF AFFIDAVIT

Matters which are scandalous, irrelevant or oppressive

Answer 24

1) The law:
- O.41, r.6
2) Scandalous & irrelevant - Repco (M) Sdn Bhd v Than Tho Fatt:
- Scandalous AND irrelevant: both must be present.

Question 25

CONTENTS OF AFFIDAVIT Exhibits & annexed

Answer 25

1) the law: - O.41, r.11 2) Right to peruse exhibits - Palaniappa Chettiar v Tan Jan & Anor: - the certificate is part of the affidavit and that the signature is attached to the affidavit as a whole and therefore to every part of it. 3) Non-compliance - SOP Plantantions (SUA) Sdn Bhd v Ading Ak Layang: - non-compliance with O.42 r.11(2) was not fatal but only an irregularity which could be cured.

Question 26

ISSUES ON CONTENTS OF AFFIDAVIT Overview

Answer 26

1) Source of information 2) Affidavit sworn after filing of OS 3) Affidavit sworn after filing of petition 4) Affidavit filed after the hearing has commenced 5) Affidavits affirmed outside Malaysia 6) Whether solicitor may affirm on behalf of client

Question 27

ISSUES ON CONTENTS OF AFFIDAVIT Source of information

Answer 27

1) Newspaper - Perwira Affin Bank Berhad v Lorraine Esme Osman: - Without any supporting documents or sources, newspaper report by themselves are insufficient to conclusively establish a fact in dispute. 2) Example - Dynacast (S) Pte Ltd v Lim Meng Siang & Ors: - “Saya telah dinasihati oleh peguam cara saya dan sesungguhnya percaya bahawa saya mempunyai pembelaan yang bermerit dan oleh itu perkara ini harus diperbicarakan.” - “Saya telah dinasihati oleh peguam cara saya” is the source of the information; - “dan sesungguhnya percaya” is the grounds for believing that information

Question 28

ISSUES ON CONTENTS OF AFFIDAVIT Affidavit sworn on or before filing of OS

Answer 28

1) Before OS - Yang Lak Man v Yang Paw Man: - affidavit dated earlier than date of issuance of O.S is not fatal or irregular. 2) Earlier or on the date of OS - Standard Chartered Bank Malaysia Bhd v Arivalan Krishnan & Anor: - It would be inconvenient or impractical for the affidavit to be affirmed on or after the date on which originating summons has been filed and extracted; - it would mean filing the originating summons first, obtain the extract copy with the case number and then file the affidavit in support. - Therefore, an affidavit dated earlier or on the date of issuance of O.S is not a nullity & does NOT render the affidavit defective & inadmissible.

Question 29

ISSUES ON CONTENTS OF AFFIDAVIT Affidavit sworn after filing creditor's petition

Answer 29

Re Delta Drive (M) Sdn Bhd; Hong Leong Finance v Delta Drive (M) Sdn Bhd (No. 2) (2000): - r.26 would not be breached if the petition was filed in the morning and the affidavit verifying the petition was filed in the afternoon on the same day. - The premature swearing or affirming of an affidavit verifying petition is a mere irregularity curable under r.193. - It can be rectified by a re-swearing of the affidavit and the order sought by the petition can be made thereafter.

Question 30

ISSUES ON CONTENTS OF AFFIDAVIT Affidavit filed after hearing has commenced

Answer 30

Tan Jiak Chye v Tan Toh Hua & Anor: - It was unusual for the an affidavit to be filed after the hearing had commenced; - The affidavit filed without the leave of court after hearing had commenced will be rejected by the court.

Question 31

ISSUES ON CONTENTS OF AFFIDAVIT Affidavit affirmed outside Malaysia

Answer 31

1) O.41, r.12 2) O.41, r.13 3) Notaries Public Act

Question 32

ISSUES ON CONTENTS OF AFFIDAVIT Whether solicitor may affirm affidavit on behalf of the client

Answer 32

Malayan Banking Berhad v Chatere Field Corporation Sdn Bhd: - A solicitor may depose an affidavit on behalf of litigant, provided that: 1) The facts deposed must not be contentious or disputed question of facts; 2) The facts to be deposed must be from his own knowledge; and 3) The solicitor must have been authorised by the litigant to depose the affidavit on his behalf.

Question 33

JURATS Overview

Answer 33

1) Forms of jurats 2) Position of jurats 3) Title on jurats 4) Indorsement on jurats

Question 34

JURATS Forms of jurats

Answer 34

O.41, r.1(8): - Form 74

Question 35

JURATS Position of jurats

Answer 35

Fulcrum Capital Sdn Bhd v Low Kon Yang: - jurat shall be positioned after the substantive content of the affidavit; - this is to show that the jurat relates directly to the deposition; and - to obviate the possibility of abuse by a party who might otherwise pre-execute the jurat to an affidavit.

Question 36

JURATS Position on jurats - effect of wrong position

Answer 36

Mohd Nazir bin Badar Shair v Timbalan Dalam Negeri: - There is no provision on the positioning of a jurat. - There is thus no legal basis for declaring a jurat defective if it does not end on the last page of an affidavit. NOTE: Observe O.1A.

Question 37

JURATS Title on jurats

Answer 37

1) Mohd Nazir bin Badar Shair v Timbalan Dalam Negeri: - There is no requirement for a jurat to be entitled. - It is the affidavit and not the jurat that must carry the title of the action. 2) Alliance Bank Sdn Bhd & Ors v Mukhriz Mahathir & Anor: - An affidavit may still be filed & used in evidence with the leave of the court. - In the present case, the court refers to O.1A & held that it may use and accept the affidavits as the failure to insert the title of the action in the jurat is of very little significance or consequence as the jurat is not a separate document from the affidavit sworn.

Question 38

JURATS Indorsement on jurats

Answer 38

Mohd Nazir bin Badar Shair v Timbalan Dalam Negeri: - The indorsement must be made at the end of the jurat. - This will show that the jurat, even though beginning and ending on a new page or is on a completely new page, relates to the deposition in question and that the affidavit is regular.

Question 39

DEFECTIVE AFFIDAVITS Overview

Answer 39

1) Scope 2) Supplemental affidavit 3) Examples of defective affidavit

Question 40

DEFECTIVE AFFIDAVITS Scope

Answer 40

1) O.41, r.4: - Court may grant leave for the use of a defective affidavit, notwithstanding its irregularity. 2) Whether affidavit may be ordered to be taken off - Rossage v Rossage: - The court has a complete jurisdiction over its own records; - It may order that an affidavit, filed in any matter, be forthwith taken off the filed & destroyed.

Question 41

DEFECTIVE AFFIDAVITS Supplemental affidavit

Answer 41

Syarikat Islamiyah v Bank Bumiputra: - Supplemental or corrective affidavit may be used to correct the defect; - provided that the defendant is not prejudiced. NOTE: Observe O.1A.

Question 42

DEFECTIVE AFFIDAVITS Examples of defective affidavit - lack of endorsement

Answer 42

1) PPEC (M) Sdn Bhd v REPC Services Sdn Bhd: - The judge allowed the reliance on the affidavit as the lack of endorsement had been properly and adequately accounted for as a simple act of inadvertence. - The defendants were not in any way prejudiced nor did the defendants face any difficulty by this oversight. 2) Standard Chartered Bank Malaysia Berhad v Hua Hung Sawmill Company Sdn Bhd: - O.41, r.9(2): an affidavit that is not endorsed is not completely shut out from being used in any proceedings; - The party relying on the affidavit still has the avenue of seeking leave from the court for the use of the same. - OTF, the learned Deputy Registrar allowed the P’s application in spite of such omission. - Appellate court also would not hesitate to grant leave for the use of affidavits in question on the same ground advanced by the learned DR had the P made such an application to the court.

Question 43

DEFECTIVE AFFIDAVITS Examples of defective affidavit - foreign deponent in local language

Answer 43

Ian James Roger v Menteri Sumber: - Englishman affirming in Malay will render the affidavit invalid as neither of them understood the Malay language; - there was no jurat.