CIVIL PROCEDURE 1IChapter 1O.41 ROC 2012: AFFIDAVIT

INTRODUCTIONAlmost every application by Notice of Application (in Chambers) is supported by Affidavit.

Affidavits are also used in Originating Summons (OS)

Function of an affidavit is different from pleadings.

WHAT IS AN AFFIDAVIT?An affidavit is a sworn written statement of the facts known to the DEPONENT (the person making the affidavit), affirmed before a COMMISSIONER FOR OATH which may be used as evidence in the court.

It is an exception to the general rule that evidence is to be given orally. Therefore affidavits may be allowed in support of any application to the court where oral evidence is not necessary or required.

E.g. In an application for summary judgment, whereby the parties will argue based on the contents of their respective affidavits.

Procedural Requirements [O. 41]O 41 r 1The affidavit must bear the title of the action: r 1(1) Multi-purpose Bank Bhd V Diamond Agreement Sdn Bhd [2000] 5 MLJ 576: an affidavit sworn in a cause or matter must bear the title of that cause of matter.

The affidavit must be expressed in the first person and must statethe deponent`s place of residenceand his occupation / his description,if he is a party to the case or employed by a party to the case, he must state so: r 1 (4).

If the deponent deposes the affidavit in his professional, business or other occupational capacity, he may state the address of his work instead of his place of residence, his position and the name of his firm/employer.: r 1(4).

divided into numbered paragraph: r. 1(5)

dates, sums and numbers written in figures: r. 1(6)

Signed by the deponent and JURAT in F 74 must be completed and signed by person before whom it is sworn: r. 1(7)

Gan Thing Phing v Ong Gek [1998] 7 MLJ 351: unsworn affidavit / merely signed was held to be inadmissible as evidence.

Thomas v AG of Sarawak [1961] MLJ 111: the affidavit which is faulty in its signature is not admissible

JURATJURAT is a certificate of the person before whom the affidavit was sworn certifying that an oath has been administered. It contains a clause written at the foot of the affidavit stating the name of deponent, place, time of the swearing and the name of the person/commissioner for oath before whom it is sworn: [Refer to F 74]

The Jurat should be placed on the same page having the last averment of the affidavit. If it is placed independently on a new page then one may argue that the jurat does not refer to the deposition in the affidavit: Mohd Nazir v. Timbalan Menteri Dalam Negeri [2000] 2 MLJ 559

O. 41 r 2(1): separate Jurat for different languages.

Mohd Nazir v. Timbalan Menteri Dalam Negeri [2000] 2 MLJ 559

The fact that the jurat commences on one page and ends on another or that it is on a completely new page will not render the affidavit defective unless there is evidence to the contrary.

There is also no requirement in O 41 r 1 of the RHC or in Form 78 of the RHC for the jurat to be entitled. On the facts, the three affidavits must be presumed to be regular. However the indorsements on all three affidavits were defective as the indorsements did not state the dates of swearing and filing of the affidavits.

Affidavits & Hearsay EvidenceHearsay evidence may be stated in the affidavit provided that the source of the information is stated: Harrison v Bottenheim (1878) 26 WR 362

Dynacast Pte Ltd v Lim Meng Siang (1989) 3 MLJ 456: the court observed that an affidavit should only state the facts within the personal knowledge of the deponent and not hearsay evidence. If it is hearsay evidence, then its source and ground must also be stated. The court then will use its discretion whether to admit it or not.

Where the source of the information or belief is not stated for hearsay evidence, the affidavit may be irregular and inadmissible as evidence: Kulanthayar Chettiar v Koh Liak Phuang (1951) MLJ 49

Affidavit by Two or More DeponentsO. 41 r 2(1): names of all deponents must be inserted in the Jurat - unless the affidavit was sworn by all deponents at one time-sufficient to state that it was sworn by all the of the abovenamed deponents

Affidavit by Illiterate OR Blind PersonO. 41 r 3- the person administering the oath must certify in the Jurat that:

The affidavit was read to the Deponent in his presence

The deponent seemed perfectly to understand the content of it

The deponent signs the affidavit before him S Ravi a/l G Suppiah v. Timbalan Menteri Hal Ehwal dalam Negeri [1995] 2 CLJ 152: the affidavit shall not be admitted in evidence if the above requirements are not fulfilled.

Use of Defective AffidavitO. 41 r 4: defective / irregular affidavit may be used in evidence with the leave of the court.

Dynacast Pte Ltd v Lim Meng Siang [1989] 3 MLJ 456: in the case of hearsay evidence, failure to state the source and grounds of information and belief causes the defective part of the affidavit inadmissible. The court may only strike out the defective parts instead of the whole affidavit.

Use of Defective AffidavitMohd Nazir v Timbalan Menteri Dalam Negeri [2000] 3 AMR 2864: the indorsement to the Jurat did not state the dates of swearing and filing of the affidavits. It was held that the affidavits were defective and could not be used.

Utama Merchant Bank Bhd v Datuk Nadzmi Salleh (2001) 2 AMR 1687: the Jurat was not in the prescribed form, not completed and the dates of affirmation and filing were not stated. It was held that the Affidavits were defective and could not be used. The defects could not be cured as a mere irregularity as they were serious even though not prejudicial to the other party.

Contents of Affidavit: O.41 r.5May contain facts within the knowledge of deponent who is able to prove the facts.

An affidavit in interlocutory proceeding may contain statement of information or belief with the sources and grounds thereof. (provided that the sources and grounds of the information are stated)

Scandalous, etc matters in Affidavit: O. 41 r. 6The court may strike out of any affidavit any matters that are scandalous, irrelevant or oppressive.

Re Ong Eng Guan [1959] MLJ 92: where the court struck out an allegation of biasness in the affidavit as it was irrelevant.

Alterations in Affidavit: O.41 r.7An affidavit having alterations cannot be filed or used in any proceeding unless the CFO has initialed the alteration

No alteration is allowed after it has been filed, but before an affidavit is filed alteration may be made therein, it must be re-sworn with a further Jurat commencing with the word re-sworn added.

Thus, it is better to file a fresh affidavit.

Affidavit Sworn before Solicitor of Party: O.41 r.8The affidavit cannot be sworn before the solicitor or member of the firm acting for the deponent

A solicitor cannot affirm a contentious affidavit and it must be the litigant himself who must affirm it-: Tan Sri Musa bin Dato Hj Hassan & Ors v. Uthayakumar a/l Ponnusamy (2012) 1 MLJ 68

Replying an AffidavitAn affidavit in reply must specifically reply to the allegations of fact and not law. And that the failure to reply specifically to any allegations may be fatal.

Alloy Automative Sdn Bhd v Perusahaan Ironfield Sdn Bhd (1986) 1 MLJ 382: where a case is to be decided on contests of affidavits, the rule is clear those material allegations which are not contradicted are deemed to be admitted.

(See also Overseas Investments Pte Ltd v Anthony William OBrien & Anor (1988) 3 MLJ 332)

Documents to be Exhibited: O.41 r.11Document to be used / referred in the affidavit must be exhibited and a copy annexed to the affidavit

The exhibit must be identified by a certificate of the person before whom the affidavit is sworn.

The other party has right to peruse the exhibits

Palaniappa Chettiar v Tan Jan [1965] MLJ 182: exhibits to an affidavit formed part of the affidavit as if they had been copied in the affidavit.

Documents to be Exhibited: O.41 r.11OUL Credit Sdn Bhd v Coral Fields Resources Sdn Bhd & Anor [1997] MLJ 426: a statement of accounts produced was an exhibit and could be used as an exhibit without being translated into Bahasa Malaysia.

However, in Syarikat Telekom Malaysia Bhd v Business Chinese Directory Sdn Bhd (1994) 2 MLJ 420, the court held that a document which is not in Bahasa Malaysia or the English language may not be admitted as an exhibit.

Affidavit Sworn outside MalaysiaO. 41 r 12: an affidavit affixed with the seal or signature of a court, judge, notary public or any other person has authority to administer oaths in commonwealth countries is admissible.

Affidavit affirmed outside Malaysia may be filed in English.

Affidavit in Foreign languageO.92 r.1(3)

An affidavit in a foreign language must be filed with a translation of such affidavit by a qualified translator/solicitor.

The translator then filed another affidavit verifying the translation, exhibiting the translated affidavit and its translation.

Filing of Affidavits: O 41 r. 9Every affidavit shall be filed in the Registry.

Every affidavit shall be endorsed with a note showing on whose behalf it is filed and the dates of swearing and filing.An affidavit which is not so endorsed may not be filed or used without the leave of the Court.

HOWEVER an original affidavit which has not been filed may be used in proceedings with the leave of the Court provided that it has been stamped with the appropriate fee.

Where an affidavit has been filed, an office copy may be used in any proceedings.

Notice of Filing: O.32 r.13Any party

filing an affidavit intended to be used in any application; or

intending to use in any such proceedings any affidavit filed by him in previous proceedings;the party shall serve the affidavit on every other party or give notice of his intention to do so in F 58.

Time to File & Serve affidavitsAffidavit must be filed and served within 14 days from the date of filing of the notice of application: O. 32 r 13(2)(a)

Affidavit in Reply to be served within 14 days from receiving the affidavit in support: O. 32 r 13(2)(b)

For summary application under O 14, O 14 r 2(3) provides that the notice of application and affidavit must be served within 14 days after receiving the sealed notice of application.

Affidavit dated earlier than the OS or Notice of ApplicationArab-malaysian Finance Bhd V Serajudin Bin Mohd Ismail & Anor[1998] 7 MLJ 536An affidavit affirmed exactly one week before the OS was filed cannot be said to have been affirmed in a cause or matter in accordance with O 41 r 1 of the Rules of the High Court 1980 because there was no cause or matter that had been registered at the registry. It is a nullity as it supports a non-existent cause or matter

Affidavit dated earlier than the OS or Notice of Application

HOWEVER:

Multi-purpose Bank Bhd v Diamond Agreement Sdn Bhd [2000] 5 MLJ 576There is no rule that says that a plaintiff, who intends to adduce evidence in support of an originating summons at the first hearing, must do so by affidavit affirmed only after the cause or matter has been instituted. An affirmation which precedes the filing of the originating summons is not necessarily not in order

Malaysia Building Society Bhd v Univein Sdn Bhd [2002] 7 MLJ 501Although the plaintiff's affidavit in support was filed before the originating summons, the affidavit was not a nullity and therefore was admissible