CIVIL PROCEDURE 1I

Chapter 1
O.41 RO C 2012 : AFFIDAVIT
 INTRODUCTION

⚫ Almost every application even by mode

of Notice of Application / Notice of
Motion / Summon in-Chambers /
Originating Summon is supported by
Affidavit.

⚫ Function of an affidavit is different from

pleadings.
 AFFIDAVIT
⚫ Affidavit is a sworn written statement of the facts
known to the DEPONENT (the person making the
affidavit), affirmed before a COMMISSIONER FOR
OATH (or any other authorized person under the law)
which may be used as evidence in court.

⚫ Affidavit is an exception to the general rule that

evidence is to be given orally.

⚫ Affidavit may be allowed in support of any application to

the court where oral evidence is not necessary for e.g.
in an application for summary judgment, whereby the
parties will argue the case based on the contents of
their respective affidavit.
 PROCEDURAL
OREQUIREMENTS
41 r 1 R O C 2012

1. Affidavit must bear the title of the action:

O 41 r 1(1) R O C 2012: Multi-purpose Bank
Bhd V Diamond A greement Sdn Bhd [2000]
5 M L J 576

2. Affidavit must be expressed in the first person and

must state:-
🞄 Deponent’s place of residence
🞄 Deponent’s occupation / description
🞄 Deponent’s capacity i.e. if he is a party to the case
or employed by a party to the case: O. 41 r 1
(4) R O C 2012
3. 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: O 41 r 1(4)
RO C 2012

4. Divided into numbered paragraph: O 41 r. 1(5)

R O C 2012

5. Dates, sums and numbers written in figures: O 41

r. 1(6) R O C 2012
6. Signed by the deponent and JURAT [!] in Form 74 must be
completed and signed by person before whom it is sworn (i.e.
the Commissioner For Oath): O 41 r. 1(7) R O C 2012

◦ Gan Thing Phing v Ong Gek [1998] 7 MLJ 351:

unsworn affidavit / merely signed was held to be inadmissible
as evidence.

◦ Thomas v A G of Sarawak [1961] MLJ 111: the affidavit

which is faulty in its signature is not admissible.

7. A solicitor cannot affirm a contentious affidavit and it must be

the litigant who must affirm it: Tan Sri Musa bin Dato Hj
Hassan & Ors v. Uthayakumar a/l Ponnusamy (2012) 1
MLJ 68 (CA) and Kaplands Sdn Bhd V Lee Chin Cheng
Dengkil Oil Palm Plantations Sdn Bhd [2001] 1 MLJ 297
(HC)
⚫ JURAT is a certificate of the person before whom the affidavit was sworn
certifying that an oath has been administered (i.e. the CFO) [Refer to Form
74] O 41 r. 1(8) R O C 2012

⚫ 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
◦ Mohd Nazir v Timbalan Menteri Dalam Negeri [2000] 2 MLJ 559:
an affidavit is defective if the indorsements does not state the dates of
swearing and filing of the affidavits.

⚫ The Jurat should be placed on the same page having the last averment of
the
affidavit.
◦ Mohd Nazir v Timbalan Menteri Dalam Negeri [2000] 2 MLJ 559:
If the Jurat is placed independently on a new or separate page, then one
may argue that the jurat does not refer to the deposition in the affidavit.
However it will not render the affidavit defective unless there is evidence to
the contrary.

⚫ There must be a separate Jurat for different languages. O. 41 r 2(2) R O C

2012
 AFFIDAVIT BY MULTIPLE
DEPONENTS

⚫ O. 41 r 2(1) R O C 2012: names of all the

Deponents must be stated in the Jurat unless the
affidavit was sworn by all deponents at one time
(in this scenario, it is sufficient to state that it
was sworn by all the of the ‘abovenamed
deponents’.
 ILLITERATE OR BLIND
DEPONENT
⚫ O. 41 r 3 R O C 2012- the person administering the
oath must certify in the Jurat that:

◦ The affidavit was read to the Deponent in his

presence.
◦ The Deponent seemed 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: Affidavit
shall not be admitted in evidence if the above
requirements are not fulfilled.
 DEFECTIVE AFFIDAVIT

⚫ O. 41 r 4 R O C 2012: defective or irregular

affidavit may still be admissible as evidence but
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.
⚫ Mohd Nazir v Timbalan Menteri Dalam Negeri
[2000] 2 M L J 559: 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 A M R 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 O F
AFFIDAVIT

⚫ O.41 r.5 R O C 2012: Affidavit may contain

facts within the knowledge of Deponent,
who is able to prove the facts.

⚫ Affidavit may also contain statement of

information or belief with the sources and
grounds of the information provided and
stated.
 AFFIDAVIT vs. HEARSAY
EVIDENCE
⚫ Hearsay evidence may be stated in the affidavit provided
that the source of the information is stated: Harrison v
Bottenheim (1878) 26 W R 362

⚫ The court observed that an affidavit should only state the

facts within the personal knowledge of the deponent. 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: Dynacast Pte Ltd v Lim Meng Siang
(1989) 3 MLJ 456

⚫ Where the source of the information is not stated for

hearsay evidence, the affidavit may be irregular and
inadmissible as evidence: Kulanthayar Chettiar v Koh
Liak Phuang (1951) MLJ 49
⚫ Where a deponent averred that he is 'advised and verily
believed' but did not disclose the source of his information
or the person who had advised him, the averment was
bad. Then it become hearsay evidence.

⚫ Where the proceeding was a final matter and not an

interlocutory matter, hearsay evidence was inadmissible.

⚫ Where an affidavit contained hearsay evidence or

extrinsic evidence, it was inadmissible: Kassim Bin Sulong
& Anor v Guthrie Estates Holdings Ltd & Ors
[1993] 3 MLJ 303
 STRIKING O U T AFFIDAVIT

⚫O. 41 r. 6 R O C 2012: the court may

strike out any affidavit or any part of the
affidavit that are scandalous, irrelevant or
oppressive.

⚫The court may also strike out an

allegation of biasness in the affidavit as it
was irrelevant: Re Ong Eng Guan
[1959] MLJ 92
 ALTERATIONS IN
AFFIDAVIT
⚫ O .41 r.7 RO C 2012: affidavit
an
alterations canno be having or used
t filed the has in any
proceedin unless CFO initialed the
g
⚫ alteration.
No alteration is allowed after it has been filed,
but before an affidavit is filed, alteration may
be made but it must be re-sworn with a further
Jurat, commencing with the word “re-sworn”
added.

⚫ Alternatively, the parties can file a fresh

 AFFIDAVIT SWORN BEFORE
SOLICITOR
⚫ O.41 r.8 R O C 2012: Affidavit cannot be
sworn before the solicitor or member of the firm
acting for the Deponent.
 FILING O F AFFIDAVITS
⚫ O 41 r. 9 R O C 2012: Every affidavit shall be filed in the
Court’s
Registry.

⚫ Every affidavitshall 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

 PREMATURE AFFIDAVIT
(AFFIDAVIT DATED / S W O R N EARLIER
THAN THE APPLICATION )

⚫ Arab-Malaysian Finance Bhd v Serajudin Bin Mohd

Ismail & Anor [1998] 7 MLJ 536: An 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
HOWEVER:

⚫ In Multi-purpose Bank Bhd v Diamond Agreement Sdn

Bhd [2000] 5 MLJ 576: there 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

⚫ And in Malaysia Building Society Bhd v Univein Sdn Bhd

[2002] 7 MLJ 501, although the plaintiff's affidavit in support
was filed before the originating summons, the affidavit was not
a nullity and therefore was admissible
 CORRECTIVE O R ADDITIONAL
AFFIDAVITS
⚫ The ROC is silent on corrective / additional affidavits;
however they have in practice been used and accepted by
the courts: Perbadanan Nasional Insurans Sdn Bhd v
Pua Lai Ong (1996) 3 MLJ 85

⚫ However, leave is required to file a corrective affidavit:

Voon Mow Chen v Menteri Dalam Negeri & Anor
(1993) 4 CLJ 195

⚫ In Syarikat Islamiyah v Bank Bumiputra Malaysia

Bhd (1988) 3 MLJ 218, a supplemental corrective
affidavit was allowed to correct an omission to state that
in the deponent’s belief there is no defence to the
Plaintiff’s claim under an O.14 application.
 SERVING OF AFFIDAVITS
⚫ Affidavitmust be filed and served within 14 days
from the date of filing of the notice of application:
O . 32 r 13(2)(a) RO C 2012

⚫ Affidavitin Reply to be filed and served within 14

days from receiving the affidavit in support: O.
32 r 13(2)(b) R O C 2012

⚫ Subsequent affidavits to be filed and served

within 14 days from receiving the previous
affidavit: O . 32 r 13(2)(c) RO C 2012
 REPLY TO AFFIDAVIT
⚫ An affidavit in reply must specifically reply to the
allegations of fact and not law. Failure to reply specifically
to any allegations may be fatal: N g Hee Thong &
Anor v Public Bank Bhd [1995] 1 MLJ 281

⚫ 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

W illiam O’Brien & Anor (1988) 3 MLJ 332)
 D O C U M ENTS TO - BE
EXHIBITED
⚫O 41 r.11 R O C 2012: Document to be used and
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 original

exhibits.

⚫ Exhibits
to an affidavit formed part of the affidavit as if
they had been copied in the affidavit: Palaniappa
Chettiar v Tan Jan [1965] MLJ 182
 DOCUMENTS IN OTHER
LANGUAGE
⚫A statement of accounts produced was an exhibit and
could be used as an exhibit without being translated
into Bahasa Malaysia: O U L Credit Sdn Bhd v
Coral Fields Resources Sdn Bhd & Anor
[1997] MLJ 426

⚫ 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
MALAYSIA
⚫O. 41 r 12 RO C 2012: an affidavit affixed
with the seal or signature of a court, judge,
notary public or any other person has
authority under the law to administer oaths in
commonwealth countries is admissible.

⚫ Affidavitaffirmed outside Malaysia may be

filed in English and no need for interpretation
if permitted by court. O.41r13 R O C 2012
 AFFIDAVIT IN FOREIGN LANGUAGE

⚫O.92 r.1(3) R O C 2012: an affidavit in a

foreign language must be filed with a
translation of such affidavit by a qualified
translator.

⚫The translator then has to file another

affidavit verifying the translation, exhibiting
the translated affidavit and its translation.
 NOTICE OF INTENTION TO
USE AN AFFIDAVIT
⚫ O .32 r.13 RO C 2012: any party

a) filing an affidavit intended to be in

used application; or any

b) intending to usein 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
Form 58.