AFFIDAVIT

By :
1
NORMAN ZAKIYY
February 2018

(February
2018)
 WHAT IS KNOWN ABOUT AFFIDAVIT
2

 Definition – A written declaration made under oath before a notary

public, commissioner for oaths or other authorized officer.
 Affidavits form an essential part of applications made to court.
 It is a sworn statement, which may be used as evidence in a matter
before the court. Affidavits are normally used in Originating Summons
and Originating Applications.

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 WHAT IS KNOWN ABOUT AFFIDAVIT
3

 The courts have a discretion whether or not to allow cross-

examination of the deponent on the affidavit – O 38 r 2 RC / O 25 r 2
SCR

 A party must give notice of filing of an affidavit intended to be used

by him in any proceedings in chambers – O 24 r 4 RC

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 Procedural rules on AFFIDAVIT
4

 In Malaysia the procedural rules relating to affidavits are laid down in

O 41 RC / O 25 SCR rr 22-33 (for subordinate courts)

 This rule embodies the practice relating to formal parts of affidavits.

This rule is operative and applies to both civil and criminal
proceedings and s 424 of the CPC.

 An affidavit signed by a Commissioner for Oaths may be used in a

criminal court in addition to and not in derogation from the provision
of s 424 CPC – Kunn Rekon Holdings Sdn Bhd v PP and other
applications [1996] 5 MLJ 261


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 5
improperly intituled affidavit

 An improperly intituled affidavit may still be allowed to be filed by

consent of all parties, i.e. r 4, which gives the court a discretion to
allow the filing the use in evidence of an irregular affidavit – Blamey v
Blamey [1902] WN 138.
 As to the admissibility in evidence of a statutory declaration made
abroad and intituled in any cause or matter, verified by an affidavit
made in the matter – Whitting v Bassett (1872) LR 14 Eq 70; In the
Goods of Lambert (1866) LR 1 P & D 138; Multi Purpose Bank Bhd v
Diamond Agreement Sdn Bhd [2000] 5 MLJ 576.


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 6
improperly intituled affidavit

 Affidavit sworn before the issue of the writ would be inadmissible – H

Stacey v Diamond Metal Products Co Ltd & Anor [1935] MLJ 249.
 In this case the affidavit was sworn in England and after a threat of
action was made but before the issue of a writ. H, the person who
swore the affidavit died before the issue of the writ. It was held that
the affidavit should not have been used as evidence as it was not
made in a pending cause or matter and also because the plaintiff
had not opportunity of cross-examining on it.

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 7
improperly intituled affidavit

Tan Sim See & Anor. V See Chee Ping [1976] 1 MLJ 186; Lau Yeok Lin &
Ors. v Hip Soon engineering & Construction Sdn Bhd [1988] 2 MLJ 308;
Ban Hin Lee Bank Bhd v Pang Lai Hin [1999] 2 MLJ 234

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 8
improperly intituled affidavit

 In later cases, the swearing of an affidavit in support of an originating

summons before the filing of the originating summons does not
render the affidavit a nullity – Hongkong Bank (M) Bhd v Nor Harizan
bte Mohd Ali [1999] 5 MLJ 629.


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 9
Form of affidavit

 An affidavit must commence by the deponent stating that

“I…of…do make oath…” or “I…of…do solemnly and sincerely
affirm…”.

 An affidavit, in which the word ‘oath’ was omitted was held to be
insufficient – Oliver v Price (1834) 3 Dowl 261; Doe d Britton v Clarke
(1842) 12 LJQB 69; Phillips v Prentice (1843) 2 Hare 542.

)
 10 STATING PARTICULARS IN
AFFIDAVIT
 Vital to have in the affidavit particulars of the deponent such as the
occupation or description of the deponent and his place of
residence as well. The occupation of the deponent must be stated
with a certain degree of accuracy. If he has no occupation, the
words “of no occupation” must be added to his name and address.

 Affidavits giving no address, or only an illusory address may be

rejected – Hyde v Hyde (1888) 59 LT 523.
 11 STATING PARTICULARS IN
AFFIDAVIT

 Rule 1(4) states that a deponent who is a party or is employed by a

party to the cause or matter in which the affidavit is sworn must state
that fact. Thus, after the address, it must be stated either ‘the
abovenamed plaintiff’ or ‘the abovenamed defendant’ as the case
may be, or ‘employed by the abovenamed plaintiff’ or ‘employed
by the abovenamed defendant’.

 A party may confirm the authority of a deponent to make an
affidavit on behalf of the former in which case the confirmation
(which should be in writing) is sufficient proof of that authority: Molop
Corp Sdn Bhd v Uniperkasa (M) Sdn Bhd [2003] 6 MLJ 311 at p 318.
 Vital to have in the
 12 STATING PARTICULARS IN
AFFIDAVIT
 Rule 1(6) requires that date, sums or other numbers should be
expressed in figures and not in words : Love v Pharoah and Anor
[1954] 1 All ER 120

 The words “to the best of my knowledge” must mean “to the best of
my knowledge, information and belief” and that what is deposed is
within the knowledge of the deponent : Kulanthayan Chettiar v Koh
Liak Phuang [1951] 17 MLJ 149.


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 13 Reasonable grounds of belief

 Reasonable grounds of belief must be stated. An affidavit of

information and belief, not stating the source of the information of
belief, is irregular, and therefore in admissible as evidence, whether
on interlocutory or a final application and a party or solicitor
attempting to use such an affidavit will do so at his peril as to costs :
Hari Singh v Sundarammal [1965] 2 MLJ 174.

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 14 Reasonable grounds of belief

 Reasonable grounds of belief must be stated. An affidavit of

information and belief, not stating the source of the information of
belief, is irregular, and therefore in admissible as evidence, whether
on interlocutory or a final application and a party or solicitor
attempting to use such an affidavit will do so at his peril as to costs :
Hari Singh v Sundarammal [1965] 2 MLJ 174.

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Signing of affidavit

 An affidavit must be signed by the deponent and also by the person

before whom it is sworn or affirmed.
 The signature of the deponent should be written opposite the jurat.
 A jurat means a certificate of the administering officer or a person
before whom the affidavit was sworn. It refers to the clause written at
the foot of the affidavit, stating when, where, and before whom such
affidavit was sworn : Sharma Kumari d/o Oam Prakash v PP (No. 2)
[2000] 6 MLJ 790.

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 16
Signing of affidavit

 An affidavit must be signed by the deponent and also by the person

before whom it is sworn or affirmed. The signature of the deponent
should be written opposite the jurat.

 A jurat means a certificate of the administering officer or a person
before whom the affidavit was sworn. It refers to the clause written at
the foot of the affidavit, stating when, where, and before whom such
affidavit was sworn : Sharma Kumari d/o Oam Prakash v PP (No. 2)
[2000] 6 MLJ 790.
 17
Failure to state deponent

 The failure to state the name of the deponent in the jurat to an

affidavit does not mean that the Commissioner for Oaths had not
identified the person who deposed the affidavit.
 Anyone reading the affidavit would know the identity of the
deponent and the failure to state the name of the deponent in the
jurat does not detract from the fact that the affidavit was sworn
before a Commissioner for Oaths.
 18
Failure to state deponent

 At best the omission was a defect as to form and not one which goes
to substance. Such a defect, not having caused prejudice to any
party, could be cured under the relevant curing provisions : Re Liow
Fong Mooi; ex p Malayan Banking Bhd [2000] 6 MLJ 146, at p 150.
 19
Failure to state deponent

 At best the omission was a defect as to form and not one which goes
to substance. Such a defect, not having caused prejudice to any
party, could be cured under the relevant curing provisions : Re Liow
Fong Mooi; ex p Malayan Banking Bhd [2000] 6 MLJ 146, at p 150.
 20
JURAT

 There must be sufficient indication that the jurat relates directly to the
deposition.
 jurat is placed to the left-hand side of the page, but it can be written
on the right or in the margin, but space should be left for the
deponent’s signature.
 The signature of the Commissioner for Oaths should be written
immediately after “Before me,”. There have been cases where it was
held that the omission of the words “Before me” from the jurat was a
fatal defect : R v Norbury (1846) 6 QB 534n.

 21
JURAT MUST COMPLY WITH
RULES
 A jurat under O 41 r 1(7) and (8) ‘must’ be completed and signed
and ‘must’ be in one of the forms in Form 74. This connotes that it is a
mandatory requirement.

 Therefore, a failure to fill in the name of the person who interpreted

the contents of the affidavit to the deponent before she placed her
thumbprint mark cannot be termed an [mere] irregularity : Fung Yuk
Lien v Foong Chee Sam (as administrator of the estate of Kong Muk
Tei, deceased) [2000] 3 MLJ 543.
 22
JURAT MUST COMPLY WITH
RULES
 It is mandatory for the jurat ‘to be completed and signed by the
person before whom it is sworn’. Thus, where the affidavit is signed
before a commissioner for oaths, only he can and must complete the
jurat : Metro Kajang Construction Sdn Bhd v EKA Bahtera Sdn Bhd
[2001] 3 CLJ 951.
 The appropriate form of jurat must be used to ensure that deponent
understands what is stated in his affidavit : Fulcrum Capital Sdn Bhd v
Low Kon Yang [2003] 4 MLJ 509 at p 515.

 23
Illiterate or blind deponent

 Affidavit by illiterate or blind person – O 41 r 3

 this rule requires a person administering the oath to certify if the
deponent is illiterate : Mohan a/l Paramsivam v Sepang Omnibus Co
Sdn Bhd [1989] 1 MLJ 247; Ravi a/l Suppiah v Timbalan Hal Ehwal
Dalam Negeri, Malaysia & Anor [1995] 1 AMR 513.

 The jurat to an affidavit must state that it was understood by him and
that it was read over and explained to him : Allworthy’s Bail (1815) 2
Chit 92.

 24
Illiterate or blind deponent

 The word ‘illiterate’ is not defined in the rules. However, the natural
and ordinary meaning is one who is unable to read and write. In
Chan Kiew v Lai Sang & Anor. [2001] 4 AMR 4817, the judge held that
in the context of an affidavit in Malay, illiterate must mean a
deponent who is unable to read Malay. Thus, a person who is literate
in Mandarin but for the purposes of an affidavit affirmed fully in Malay
he can be considered as an ‘illiterate’.
 In Form 74(c) all three requirements under this rule are to be satisfied
while Form 74(d) do not require so.
 25
Illiterate or blind deponent

 Where the deponent cannot understand the language used in the

affidavit, the contents must be interpreted to him in the language
which he understands by a competent interpreter and that part of
the form which reads ‘through the interpretation of…’ must be
completed accordingly and the full name of the interpreter (and his
identity card number) and the language used by him to interpret the
contents of the affidavit to the deponent must be recorded in the
blank spaces provided : Chan Kiew v Lai Sang & Anor. [2001] 4 AMR
4817.

 26
Illiterate or blind deponent

 In Fulcrum Capital Sdn Bhd v Low Kon Yang [2003] 4 MLJ 509, Abdul
Aziz JCA held that an ‘illiterate person’, under the rules must be a
person 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’…He is as good as blind where letters are
concerned…That is why Form (c) speaks of the person making ‘his
mark’ to the affidavit.
 27

Use of defective affidavit - O

41 r 4
 28
DEFECTIVE AFFIDAVIT

 An affidavit may, with the leave of the court, be filed or used

in evidence notwithstanding any irregularity in the form
thereof.

 This rule permits the reception of an affidavit at the discretion
of the court, notwithstanding any irregularity in the form.

 This rule does not give a party a carte blanche to overlook all
forms of irregularities. It merely gives the court a discretion to
allow or disallow a party’s use of a defective affidavit : Utama
Merchant Bank Bhd v Dato’ Mohd Nadzmi bin Mohd Salleh
[2001] 5 MLJ 317 at 328.
 Complete freedom to act as one wishes or thinks best
 29
DEFECTIVE AFFIDAVIT

 In Blamey v Blamey [1902] WN 138 affidavits sworn in America were

allowed to be filed though the title was omitted.

 See also Dynacast (S) Pte Ltd v Lim Meng Siang & Ors. [1989] 3 MLJ
456.

 In Ian James Rogers lwn Menteri Sumber Manusia & Satu Lagi [1998] 5
MLJ 290, the HC held that an affidavit in support of an application
sworn by an Englishman in the Malay language before a notary
public in England was invalid affidavit as neither of them understood
the Malay language and there was no jurat which stated that the
applicant understood what he had sworn.
 30
DEFECTIVE AFFIDAVIT

 In Blamey v Blamey [1902] WN 138 affidavits sworn in America were

allowed to be filed though the title was omitted.

 See also Dynacast (S) Pte Ltd v Lim Meng Siang & Ors. [1989] 3 MLJ
456.

 In Ian James Rogers lwn Menteri Sumber Manusia & Satu Lagi [1998] 5
MLJ 290, the HC held that an affidavit in support of an application
sworn by an Englishman in the Malay language before a notary
public in England was invalid affidavit as neither of them understood
the Malay language and there was no jurat which stated that the
applicant understood what he had sworn.
 31
CONTENT OF AFFIDAVIT

 – O 41 r 5 - The effect of this rule is to require that save in certain

excepted cases, an affidavit must contain the evidence only as to
such facts that the deponent is able of his own knowledge to prove.
 Exceptions:-
 O 14 rr 2, 4
 O 38 r 3
 O 49 r 2 (garnishee proceedings)
 O 50 r 1 (charging orders on land)
 O 50 r 3 (charging orders on securities)
 32
JURAT MUST COMPLY WITH
RULES
 A jurat under O 41 r 1(7) and (8) ‘must’ be completed and signed
and ‘must’ be in one of the forms in Form 74. This connotes that it is a
mandatory requirement.

 Therefore, a failure to fill in the name of the person who interpreted

the contents of the affidavit to the deponent before she placed her
thumbprint mark cannot be termed an [mere] irregularity : Fung Yuk
Lien v Foong Chee Sam (as administrator of the estate of Kong Muk
Tei, deceased) [2000] 3 MLJ 543.
”

33

 Scandalous matters in affidavit – O 41 r 6

 The affidavit must be free of insulting remarks,

offensive language and other scandalous or
oppressive matter. If the affidavit fails to abide by
this rule, the offending part or parts will be
automatically struck out by the court : Osmaston
v Assn of Land Finances [1878] WN 101; MUI Bank
v Alkner Investements (Pte) Ltd [1990] 3 MLJ 385
(S’pore
ALTERATION
34
OF AFFIDAVIT

 Alterations of affidavit – O 41 r 7

 This rule lays out the provision that an affidavit which is

altered cannot be filed or used in the proceedings without
the leave of the court unless the alteration is confirmed by
the person before whom the affidavit was sworn.

 The person may do this by initialling the alteration, and in
the case of erasure, by rewriting in the margin of the
affidavit any words or figures written on the erasure, and by
signing and initialling them : Re Cloake (1891) 61 LJ Ch 69.

 If the affidavit requires an alteration after it is sworn but
before it is filed, it must be re-sworn.
ALTERATION
35
OF AFFIDAVIT

 Alterations of affidavit – O 41 r 7

 This rule lays out the provision that an affidavit which is

altered cannot be filed or used in the proceedings without
the leave of the court unless the alteration is confirmed by
the person before whom the affidavit was sworn.

 The person may do this by initialling the alteration, and in
the case of erasure, by rewriting in the margin of the
affidavit any words or figures written on the erasure, and by
signing and initialling them : Re Cloake (1891) 61 LJ Ch 69.

 If the affidavit requires an alteration after it is sworn but
before it is filed, it must be re-sworn.
ALTERATION
36
OF AFFIDAVIT

– O 41 r 7
 Filing of affidavit – O 41 r 9

 This rule requires that the affidavit must be indorsed with a note
showing on whose behalf it is filed. Without such indorsement, the
affidavit may not be filed and may not be used save with the leave of
the court : Sharma Kumari d/o Oam Prakash v PP (No 2) [2000] 6 MLJ
790 at 802.

 All affidavits are also required to be indorsed with the date on which
they were sworn and the date of filing. An indorsement on an affidavit
which does not state that dates of swearing and filing of the affidavit is
defective for non-compliance of this rule.

ALTERATION
37
OF AFFIDAVIT

– O 41 r 7
 Filing of affidavit – O 41 r 9

 This rule requires that the affidavit must be indorsed with a note
showing on whose behalf it is filed. Without such indorsement, the
affidavit may not be filed and may not be used save with the leave of
the court : Sharma Kumari d/o Oam Prakash v PP (No 2) [2000] 6 MLJ
790 at 802.

 All affidavits are also required to be indorsed with the date on which
they were sworn and the date of filing. An indorsement on an affidavit
which does not state that dates of swearing and filing of the affidavit is
defective for non-compliance of this rule.

Use of original affidavit or office copy – O 41 r 10
38

 The normal practice is to file the original affidavit in the relevant file in
the Registry.

 But where the original affidavit is used at the hearing, the party whose
affidavit is used must undertake to file it in the Registry and he must do
so immediately after it is used. An original affidavit in invalid ab initio if
the fee applicable has not been paid

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Use of original affidavit or office copy – O 41 r 10
39

 The normal practice is to file the original affidavit in the relevant file in
the Registry.

 But where the original affidavit is used at the hearing, the party whose
affidavit is used must undertake to file it in the Registry and he must do
so immediately after it is used. An original affidavit in invalid ab initio if
the fee applicable has not been paid

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Documents
40
annexed to affidavits – O 41 r 11

 exhibits to the court. This may be done by attaching them to the

affidavit and by making the necessary reference to them in the body
of the affidavit. This rule explains how the exhibits should be attached
to the affidavits.

 Any document to be used in conjunction with an affidavit must be
exhibited and a copy thereof annexed to the affidavit.

 A document exhibited to an affidavit is part of the affidavit. It was
therefore held in Re Hinchcliffe (1895) 1 Ch 117 that anyone who has a
right to see an affidavit has also a right to see an exhibit referred to it in
the affidavit so as to be made part of it, just as it were annexed to the
affidavit : Gulwant Singh v Amar Kaur [1968] 1 MLJ 107; Palaniappa
Chettiar v Tan Jan & Anor. [1965] MLJ 182.

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Documents
41
annexed to affidavits – O 41 r 11

 exhibits to the court. This may be done by attaching them to the

affidavit and by making the necessary reference to them in the body
of the affidavit. This rule explains how the exhibits should be attached
to the affidavits.

 Any document to be used in conjunction with an affidavit must be
exhibited and a copy thereof annexed to the affidavit.

 A document exhibited to an affidavit is part of the affidavit. It was
therefore held in Re Hinchcliffe (1895) 1 Ch 117 that anyone who has a
right to see an affidavit has also a right to see an exhibit referred to it in
the affidavit so as to be made part of it, just as it were annexed to the
affidavit : Gulwant Singh v Amar Kaur [1968] 1 MLJ 107; Palaniappa
Chettiar v Tan Jan & Anor. [1965] MLJ 182.

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 42

 Affidavits sworn outside Malaysia – O 41 r 12


 This rule lays out the provision that affidavits which
originate in other countries may be received if they
appear on the face to have been legitimately executed
before the appropriate official, such as judge, notary
public, commissioner for oaths or consular office : Tan
Phaik See v Multi Purpose Insurance Berhad [2004] 6 MLJ
474.

 The general rule is that where the affidavit is sworn outside
the jurisdiction before a notary public or person authorised
to administer oaths, the authority of such person must be
verified : Re Davis’ Trusts (1869) LR 8 Eq 98; Levitt v Levitt
(1865) 2 Hem & M 626.
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