Affidavit

1) Generally, every application in chambers is supported by an

affidavit.
2) An affidavit is a sworn statement which can be used as evidence of
the matter deposed.
3) Affidavits are an integral part of interlocutory applications.
O41 r1 ROC Form of affidavit

title of action r1(1)

in first person r1(4)
deponents place of residence (or address of work), occupation (or
position held and name of employer) r1(4)
paragraphs numbered consecutively r1(5)
dates, sums: in figures r1(6)
dated & signed by deponent : if signed by more than one person, to
state clearly (O 41 r 2) r1(7)
jurat: Form 74 r1(8)

Chan Kiew v Lai Sang [2001] 4 AMR 4817

1. whether failure to state the deponent's occupation or description in
the affidavits as required under O41r 1 (4) RHC, is fatal or just a
mere irregularity which can be cured;
In this case, the P has described that he is the P in the action & the owner
of the said land in dispute. Therefore, the deponent has sufficiently
"described" himself as required under O41r1 (4). The deponent's failure to
describe his "occupation as submitted by the defs is only a mere
irregularity which can be cured under O41 r4 of the RHC and it does not
prejudice the defs.

2. whether failure to insert the name of the interpreter twice in the

relevant columns in Form 78 (d) of the RHC amounts to an
irregularity. If so, whether it can be cured;
Interpreter's name appears only once, i.e. in the 1 st column. In the 2nd
column where the interpreter's name should appear again, the jurat used
the word "dia", instead of repeating the interpreter's name again. Reading
the jurat in the whole context, one can safely conclude that the word "dia"
refers to the same interpreter whose name appeared. Thus, court held
that the jurat is not defective has been "completed by the person before
whom it is sworn" as prescribed in O41r1(7). If affidavits are said to be not
complying with the jurat in Form 78 (d), such non-compliance only be
considered as a mere irregularity & can be cured under O 41 r 4 of the
RHC.

3. whether the interpreter named in Form 78 (d) of the RHC 1980 need
to sign the jurat therein;
The court held there is no requirement that the interpreter need to sign
the jurat. The jurat is in fact, a certification by the person who administers
the oath or affirmation such as the Commissioner for Oath, not by the
interpreter.

4. whether a certificate under O41 r3 of the RHC is required where the

deponent is illiterate; and whether such affidavit without the
certificate can be accepted by the court *FATAL*
The deponent in this case is said to be illiterate as far as BM is concerned.
Therefore, the proper form of jurat to be used is as in Form 78 (c), not as in
Form 78 (d). In the present case, the jurat used in both the affidavits in
question is based on Form 78 (d) and there is a certificate to say that the
affidavits were interpreted to the deponent in Mandarin, by the named
interpreter. But there is nothing to indicate that the deponent seemed
perfectly to understand the contents of the affidavit.
All the requirements under O41 r3 are mandatory in nature. The person
who administers the oath must be satisfied that the deponent knowingly
and voluntarily signed the affidavit. Failure to comply with those
requirements will render the affidavit invalid. Jurats in both the affidavits in
question failed to comply with the requirements under O41 r3 of the RHC.
The defect is so serious that it cannot be cured under O 41 r4 as well as
under O41 r1 of the RHC.

Ravi a/l Suppiah v Timbalan Hal Ehwal Dalam Negeri Malaysia

[1995] 2 CLJ 152
The affidavit of the deponent was affirmed in BM and signed in Tamil.
However, there was no indication in the deponent's affidavit that the
deponent was literate in BM & there was non-compliance with the
requirements of O41 r3 of the RHC. The issue was whether the affidavit
could be used in evidence without the certificate under O41 r3 of the RHC.
Held: The requirements of O41 r3 are clearly and obviously mandatory in
nature. In order to use an affidavit under O41 r3, it is absolutely essential
that the conditions prescribed therein have been meticulously complied
with, as the person administering the oath must certify that the three
conditions of r3 have been complied with. There is nothing in the affidavit
to indicate that the contents of the affidavit appeared to be perfectly

understood by the deponent. In the circumstances, the affidavit is

defective and shall not be used in evidence.

O41 r3 ROC - Blind or illiterate deponent

The commissioner for oath must certify that

the affidavit was read in deponents presence;

the deponent seemed perfectly understands it; and
the deponents mark/signature was placed in his presence.

O41 r4 ROC defective affidavit

May be filed or used in evidence with leave of court

MOHAN A/L PARAMSIVAM V SEPANG OMNIBUS COMPANY SDN BHD

(HC KL)
The director in this case has affirmed that he does not write or speak
English and his affidavit does not contain any jurat and under O 41 r3 so
his affidavit could not be used as evidence. However, under r 4 of the
same Order, such a defective affidavit may be used in evidence with the
leave of the court. In exercising the discretion, the main consideration lies
in the bona fides or otherwise of the directors when they unanimously
decided to reject the applicant's request. Since the refusal to register was
made for the sole interests of the respondent company, and there is no
evidence to the contrary, the directors had therefore exercised their
discretion bona fide and to that end, originating summons is dismissed
with cost.

DYNACAST (S) PTE LTD V LIM MENG SIANG & ORS [1989] 3 MLJ 456
(HC Sg.)
In this case, it is clear that the affidavit of Mr Wilson who is the managing
director of the plaintiff does not identify the sources of the information.
Therefore, without identifying the source, affidavit made is entirely
inadmissible as it is purely hearsay evidence. However, O41 r4 provides
that 'an affidavit may with leave of the court, be filed or used in evidence
notwithstanding any irregularity in the form thereof'. Now the question is:

is an omission to state the source a matter of form? The court decide in

the negative that the examples cited in para 41/4/1 of the Supreme Court
Practice 1988 do not appear to support the contention that such an
omission is a matter of form. Leave cannot be granted as it amounts to an
abuse of the rules.

O41 r5 ROC - Content

facts within knowledge of deponent

deponent must identify source of information

LEE MEOW LIM v LEE MEOW NYIN

(HC)

In this case, the allegation in the affidavit of Lee Siew Beng, for the
intervener, that the landlord and the tenant were brothers and that there
was no landlord-tenant relationship should have been rejected by the
learned sessions court judge since the deponent based his allegation on
purely hearsay evidence. Since this is a serious allegation, Lee Siew Beng,
the deponent of the affidavit, should disclose who the business associates
were and how the business associates had come to know that there was
no landlord-tenant relationship.
Held: An affidavit founded merely upon information and belief without
giving the source of such information and belief, is irregular.
DATUK BANDAR KUALA LUMPUR v. ZAIN AZAHARI ZAINAL ABIDIN
(CoA)
The affidavit, in order to amount to a satisfactory rebuttal, must be
affirmed by the person who has personal knowledge of the facts in issue.
An affidavit by a deponent who has no personal knowledge of the
consideration upon which the decision was based is pure hearsay and is
worthless as evidence & no Court can be expected to pay the slightest
attention to it.

O41 r6 ROC scandalous affidavit

MUI BANK BHD v. ALKNER INVESTMENTS PTE LTD (HC Singapore)
There was an application for final and not interlocutory order in this case.
It was held that this was not a case where O 41 r 5(2) of the RSC applies.
Under r 5(1), subject to certain exceptions, an affidavit may contain only
such facts as the deponent is able of his own knowledge to prove. Rule
5(2) provides that an affidavit sworn for the purpose of being used in
interlocutory proceedings may contain statements of information or belief
with the sources and grounds thereof.
Rossage v Rossage
The mother of a child applied to strike out certain affidavits, filed on the
child's father's application to suspend her access to the child, on the
ground that the affidavits were scandalous and irrelevant. Three of the
affidavits contained much hearsay evidence as well as some relevant
material. The trial judge ruled that the hearsay was irrelevant and
inadmissible, but refused the application to strike out on the ground that
he was quite capable of shutting his mind to the irrelevant matter. On
appeal by the wife the husband contended, inter alia, that as the
proceeding was interlocutory an affidavit might contain, by virtue of the
proviso to RSC, Ord 38, r 3a, statements of information or belief with the
sources and grounds thereof.
Held As the application to suspend access, although interlocutory in
form, was an application to decide the rights of the parties, it was not an
interlocutory proceeding within the meaning of the proviso; the hearsay
evidence was therefore inadmissible and irrelevant, and, as the proportion

of that material to the relevant material was so high, the three affidavits
should be removed from the file.

O41 r7 ROC - Alterations

to be initialed by the commissioner for oath

only allowed before filing

O41 r9 ROC - Filing

to be filed in the Registry

should be indorsed showing on whose behalf it is filed & dated
(swearing & filing)

Lee Thye v Tan Sri Ngan Ching Wen [1999] 6 MLJ 390 (HC)
one of the preliminary objections raised by def to strike the originating
summons is that the plaintiff's affidavit-in-support affirmed prior to
commencement of the plaintiff's action is materially irregular.
Appeal dismissed. It was held that there is no requirement in the rules for
the affidavit to be dated subsequent to its filing, as the word dates in
O41 r 9(2) of RHC interpreted as any date. (before or after filing)

O41 rr10 & 11 ROC exhibits and copies

TSH industries s/b v Thong Fook Chong (text book)
The service copy of affidavit in support of application was undated and
unsigned by the commissioner of oaths. The court held that, pursuant to
rule 21 of the Commissioners of Oath Rules 1993, a copy of an affidavit
would mean either a duplicate or photostate copy of the original for the
purpose of leving fees. There is no provision in O 53 r3(1) of the RHC to
the effect that the copy of the said affidavit must be either a duplicate or a
photostate copy.

On the facts, the copy of the affidavit that was served on the respondent
bore the seal of the commissioners with the mark against the
commisoners signature while the original of the same bore the
commissioners seal with his signature attested. In the circumstances, the
copy of the affidavit that was served on the respondent without the actual
signature of the commissioner was acceptable for the purpose of O53
r3(1). Although an undated copy of the statutory statement was served on
the respondent, the content of the same were never disputed. In the
circumstances, the applicants contention that was due to an oversight on
their part that such an undated copy was served was acceptable bearing
in mind that the original thereof that had been filed in court was
unimpeachable.

Palaniappa Chettiar v Tan Jan & Anor

(FC)

(An affidavit of merits must be supported by an application to set aside a

regular judgment. However, if the purported defence is exhibited to an
affidavit, it in effect forms part of the affidavit, and should be accepted as
part of an affidavit of merits. )
Appellant brought an action to realise his security by way of originating
summons and the summons was supported by an affidavit setting out the
necessary facts and having exhibited to it the moneylender's account and
the certificate required by section 21 of the Moneylenders Ordinance. The
certificate was not signed by the appellant. The learned judge dismissed
the application on the ground that there had not been compliance with
section 21 of the Ordinance as there was no certificate signed by the
applicant or his agent.
Held: exhibits to an affidavit formed part of the affidavit as if they had
been copied out in the affidavit and therefore in this case there was
compliance with section 21 of the Moneylenders Ordinance as the
certificate was part of the affidavit and the signature attached to the
affidavit as a whole and to every part of it

In re HINCHLIFFE
When a person makes an affidavit, and states therein that he refers to a
document marked with the letter A, the effect is just the same as if he had
copied it out in the affidavit. It is only made an exhibit to save expense.