APRIL 18 — Affidavit is a written statement, made by a person before another person who is authorised to administer the oath that the contents of the statement are true. The person making an affidavit is called a deponent. An affidavit is used to support certain legal applications or as a substitute for oral testimony in court proceedings.

An affidavit therefore is an oath in writing which is affirmed or sworn before a person who has authority to administer oaths — a Commissioner for Oaths or a Public Notary.

An affidavit must be made in some cause or matter which is actually pending in the court. This differentiates an affidavit from a statutory declaration — commonly referred to as SD — which is also a sworn statement in writing before an authority to administer oaths made under the Statutory Declaration Act 1960, and which can be used in various legal, administrative, and official contexts.

An affidavit differs also from a deposition. The distinction is that the former is ex parte and voluntary, and the latter is made after notice and is compulsory.

A deposition further differs from an affidavit, in that the opposite party has an opportunity to cross-examine the witness who makes the former.

A deposition, it is said, is “evidence given by a witness under interrogatories, oral or written, and usually written down by an official person, while an affidavit is the mere voluntary act of the party making the oath, and may be, and generally is, taken without the cognizance of the one against whom it is to be used”. (Stimpson v Brooks 23 Fed Cas No 13, 454)

The law on affidavit is trite. Among others, a deponent can make an affidavit in his personal capacity for the purpose of giving evidence which is within his personal knowledge to support or deny any particulars deposed in other affidavits affirmed on behalf and with the authorisation of a party to any cause or matter.

In the case of Ringgit Exoticka Sdn Bhd v Pengarah Tanah & Galian Selangor & Ors [2014,High Court Judge Vernon Ong (as he then was) ruled that an affidavit relied upon as evidence in support of an application should only contain facts which are within the personal knowledge of the deponent.

Personal knowledge may be derived from records or documents seen by the deponent. An affidavit which is based on information and belief but is not stated to be so and which fails to disclose the sources and grounds will be disallowed in evidence.

Hearsay evidence which does not disclose the sources and grounds will not be accorded any probative value. Accordingly, the relevant statements and the documents contained in the applicant’s affidavits in that case were expunged.

In a more recent case of Tiffany Chau v Jabatan Imigresen Malaysia & Anor [2020] 8 MLJ 503, the applicant’s affidavit in support was made in contravention with O 41 r 5(1) of the Rules of Court 2012, which requires that an affidavit is to contain only such facts as the deponent is able of his own knowledge to prove.

High Court Judge Hashim Hamzah said:

“An affidavit must contain facts that the deponent to his own knowledge is able to prove. The facts deposed therein can only be verified by [another person] since the applicant has no direct knowledge regarding what actually transpired. This evidence is purely hearsay.

“Failure to observe the abovementioned requirement will discard the particular deposition or evidence of any probative value and the impugned statement may be expunged by the court (see Ringgit Exoticka Sdn Bhd v Pengarah Tanah & Galian Selangor & Ors [2014]).” (See also the case of Sangeet Kaur Deo v Chief Justice of The Federal Court of Malaysia [2019])

Thirty years ago, in the case of Kassim Bin Sulong & Anor V Guthrie Estates Holdings Ltd & Ors [1993], High Court Judge Zakaria Yatim (as he then was) ruled as follows:

1. Where a deponent averred that he was “advised and verily believed” but did not disclose the source of his information or the person who had advised him, the averment was bad. This was hearsay evidence. Where the proceeding was a final matter and not an interlocutory matter, hearsay evidence was inadmissible.

2. Where an affidavit contained hearsay evidence or extrinsic evidence, it was inadmissible. An affidavit was not a place for submissions.

3. Where exhibits to the affidavit state an opinion of law, that opinion of law is not admissible. It is the function of the court to decide on questions of law.

Clearly, where the legal proceeding is a final matter and not an interlocutory matter, hearsay evidence is not admissible.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.