CIVIL PROCEDURE 1I

Chapter 1
O.41 ROC 2012: AFFIDAVIT

INTRODUCTION
Almost

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 1

The 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 state
the deponent`s place of residence
and 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
dates,

into numbered paragraph: r. 1(5)

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

JURAT
JURAT

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

Evidence

Hearsay

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

Deponents
O.

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

Person

O.

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 Affidavit

O.

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 Affidavit

Mohd

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.5
May

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. 6
The

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.7
An 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.8
The

affidavit cannot be sworn

before the solicitor or member of
the firm acting for the deponent

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 Affidavit
An

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.11

Document

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.11

OUL

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

Malaysia
O. 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
language
O.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.
9

Every

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.13

Any

party

a) filing an affidavit intended to be used in any

application; or
b) 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

affidavits
Affidavit

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 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 nonexistent 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 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

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