Note: I gave a talk about affidavits on 21.5.2024 at Jamie Wong’s office with Wan Zafran Pawancheek. These are my notes, which I updated to include some of the other points raised at the talk.
An affidavit is a sworn statement of facts. It is about facts, not opinion, not argument, not fiction.
Purpose: To credibly establish facts. It is sworn, so if it is untrue, action can be taken against a deponent. Because there are penal repercussions for being untrue, the threat of punishment is meant to keep us truthful or ensure the truthfulness of our evidence.
Affidavits are for interlocutory applications only, not trial evidence: section 2 Evidence Act 1950 (EA50). Therefore, Order 41 Rules of Court 2012 is important. It is the procedural rule relating to affidavits.
Order 41 has four aspects: Formalities, Content, Administration and Repercussion. I will give a short description how I approach drafting affidavits.
Formalities
An intitulement is the ‘title’ of the case which appears on the front page of every cause paper we file in court. It comprises the court the matter is in, the case number, and the parties in dispute.
There must be an intitulement to the affidavit: Order 41 r 1(1). We can truncate the intitulement: Order 41 r 1(2). We can use ‘and others’ instead of other parties’ names: Order 41 r 1(3). The Rules encourage truncation for intitulement formalities.
A deponent (the person affirming the affidavit) must depose in first person, state residence and occupation: Order 41 r 1(4). However, if the deponent gives evidence in a professional, business, or occupational capacity, the office address, position, and name of firm/employer can be given instead.
A deponent’s residence and occupation are important matters under the Rules. Security for cost is where a party has to set aside a certain amount as ‘security’ in the event they lose a case. The court usually awards this against a shifty litigant. For example, security for costs can be awarded against a Plaintiff if his address is not stated in the originating process (Writ or Originating Summons) or stated incorrectly, or where he changes address during the case ‘with a view to evading the consequences of litigation.’: Order 23 r 1(c) and (d).
Affidavits must be divided by paragraphs numbered consecutively: Order 41 r 1(5). Each paragraph should be confined to a distinct portion of the subject i.e. What this means is: One fact or issue, one paragraph.
We must use figures, not words, to describe dates, sums and numerical matters: Order 41 r 1(6). Whenever I see affidavits that use words for dates and sums, I infer the writer did not fully appreciate Order 41.
An Affidavit must be signed and contain a jurat (Form 74), signed by a Commissioner for Oaths (CFO) or a Notary Public (NP): Order 41 r 1(7). A jurat is a section for the CFO to confirm the circumstances in which the affirmation was done. The jurat must follow those in Form 74: Order 41 r 1(8). The jurat is supposed to attest to the various capacities of the deponents: blind, illiterate, etc.: Order 41 r 2(2) and r 3.
If the affidavit’s form has any defects, the court may still use it with permission: Order 41 r 4. Please, please do not be that annoying lawyer who raises preliminary objections (PO) for non-compliance with formal matters that do not cause any serious prejudice or miscarriage of justice. You will have few friends at the Bar.
And let me tell you how I would respond if you were such a lawyer.I’d invite the court to read Order 41 r 4 with Order r 1A, Order 2 r 1(1) to (3), and Order 2 r 3. A court should not be interested in non-compliance that does not create or result in injustice that costs cannot compensate. But if it is, it reflects a mind comfortable with formalities (dotting the I’s and crossing the T’s) rather than substance (using the I and T’s meaningfully).
Contents
Affidavits may contain facts the deponent can prove: Order 41 r 5(1).
However, affidavits used in interlocutory proceedings may contain statement of belief information with sources and grounds: Order 41 r 5(2). In short, hearsay is allowed, provided the source and grounds of information are provided. The statements can be struck out or ignored if those are not disclosed. Remember that EA50 does not apply to affidavits. Provisions like section 32 (on hearsay) EA50 do not apply.
Scandalous, irrelevant or oppressive affidavit contents may be struck out: Order 41 r 6. This includes affidavits that contain arguments instead of facts.
A CFO/NP must initial any alternation in the affidavit: Order 41 r 7(1). The purpose of this is to ensure that the CFO/NP had cognisance of the alteration. An alteration not attested to by a CFO/NP may render an affidavit defective.
Alterations cannot be made after an affidavit is filed. However, it may be done and re-sworn before filing: Order 41 r 7(2).
A solicitor cannot attest an affidavit for his client that he intends to rely on in court: Order 41 r 8. CFO-Lawyers like me must refrain from attesting their client’s affidavits. We send ours out.
Administration
Affidavits must be filed with the court registry: Order 41 r 9(1). Maybe we need to update the language on this. Court server perhaps?
Affidavits must be endorsed about (i) on whose behalf it is filed (ii) the dates of swearing and filing of the affidavit. If not so endorsed, it may not be filed or used except with court’s leave: Order 41 r 9(2). In CIMB Bank Berhad v Consobiz Ventures SB & Ors [2018] CLJU 1336, HC Mohd Nazlan J considered the affidavits notwithstanding the non-compliance with Order 41 r 9(2) in the interest of justice. Invoked Order 1A and Order 2 r 3. Please don’t take POs on such matters. POs should either go towards jurisdiction or where a miscarriage of justice happened. It should not be taken for pedantic non-compliance (dotting our I’s and crossing our T’s).
Even though an affidavit was not filed, it may be used with leave of court even if it has not been filed with the registry: Order 41 r 10(1). But it must at least be stamped with the appropriate fee, i.e., the fee was paid: Order 41 r 10(2). I am not sure how this is supposed to work but it doesn’t matter. For practical purposes, Order 41 r 10 has become unnecessary because of the e-filing system.
Documents referred to in an affidavit should be referred to by attaching copies of the exhibits: Order 41 r 11(1). Such documents must be identified by the CFO/NP: Order 41 r 11(2). The Rules are not clear how such documents should be identified. Can they be all lumped together in one exhibit, or must they be individually exhibited? As a CFO that gets paid RM 5 per exhibit (RM 2.50 for the copy), you can guess how I think documents should be exhibited.
For documents affirmed in Commonwealth countries can be used without proof of the seal or signature: Order 41 r 12. That means, we don’t have to prove the authenticity of the CFO/NP seal or the deponent’s signature if the document is affirmed in a Commonwealth country. One of the few privileges of being part of the Commonwealth.
Affidavits must be affirmed in Malay unless it is affirmed overseas (out of Malaysia), then it can be done in English without the need for a Malay translation: Order 41 r 13. This is why I enjoy foreign clients. It spares us the need to prepare the unused Malay translation, which is required under the Rules for domestic affidavits.
Repercussions
A person that signs an affidavit is said to affirm or take an oath on it. Any person that affirms an affidavit is bound to state the truth: see section 13 of the Oaths and Affirmations Act 1949 (Act 194).
If the affidavit contains a false statement which causes a decision maker to form an opinion on such evidence resulting in an erroneous opinion the deponent would have committed the offence of fabricating false evidence under section 192 of the Penal Code (PC), punishable by a maximum of seven years imprisonment and a fine if done in a judicial proceeding, a maximum of three years and a fine in a non-judicial proceeding under section 193 PC. The same punishment applies if we use an affidavit known to be false: see section 196 PC.
A CFO that fails to carry out his duty as prescribed by the Commissioner for Oath Rules 2018 commits an offence which is punishable with a fine not exceeding RM 1,000 or imprisonment not exceeding six months or both: section 20, Commissioner for Oaths Rules 2018 (PU(A) 67/2018).
Drafting a Supporting Affidavit (SA)
The SA will be in support of an application.
First, I need to know what is the test to succeed with the application.
Let’s take an injunction application: (1) Serious Issues to be Tried (2) Damages Sufficient Remedy (3) Balance of Convenience. There are subsidiary matters such as: (a) Full and Frank Disclosure (b) Undertaking as to Damages.
I use those as headers and put the facts of the case I am working on into these respective categories. Some facts can go under more than one category. The purpose is to find and group together those facts to satisfy each of those headings.
Once I have worked that out, I will sit with all the documents, emails, agreements, written statements, interview transcripts, text messages, the pleadings and documents, to ensure that they relate to and support the facts. I am constantly to and froing between the draft affidavit and these matters to ensure that I am accurate and correct.
When drafting the affidavit, I have at least three iterations.
The first iteration is to make sure all of it is included in the affidavit and there is a basic structure to the affidavit. It is ugly and messy. That is fine for the initial draft. They are never perfect. Don’t aim for perfection on the first draft. Just aim to put down the basics which I have worked out in the worksheet earlier.
The second iteration is to make sure the narrative reads smoothly, rearranging the paragraphs to suit either chronology or narrative and to refine the writing or to make it more authentic. Grammatical and punctuation errors are caught.
The third iteration is to make sure it is fit for the Judge and is an optimal an expression of the affidavit in terms of substance and form.
