YOUNG YEAN CHIN & ORS v QUEK YAK KANG & ORS [2016] MLJU 1737

Court of Appeal (Putrajaya)

Affirmation of Affidavit

2.     The Respondent had appointed a land surveyor to make measurement for the purpose of partitioning the Land between the Respondent and the Appellant accordingly.

3.     Unfortunately, the Appellant and some other co-proprietors were not agreeable to Respondent’s plan.

4.     On 7 July 2014, the Respondent filed an originating summons together with an affidavit in support averting that it was a collective intention that the Land is to be partitioned accordingly.

5.     The purpose of the application by way of originating summon (“OS”) was to get a court order to partition the Land and terminate the co-proprietorship.

6.     The Appellant, in opposing the OS filed an afidavit balasan affirmed by himself representing the other co-proprietors as the deponent.  Paragraph 1 of the afidavit balasan read out as follows:

“1. Saya adalah merupakan salah seorang Defendan menurut prosiding ini dan sesungguhnya saya mengikrarkan affidavit ini bagi pihak Young Yean Khang, Young Yean Ning, Young Yean Yee & Khoo Kee Chen sebagai balasan kepada Afidavit Sokongan Quek Yak Kang, Lim Yok Lang & Quek Xiu Yi bertarikh 07.07.2014. Segala fakta-fakta yang dideposkan di sini adalah dalam pengetahuan saya dan adalah benar berasaskan kepada rekod-rekod yang berada dalam milikan dan simpanan saya yang mana saya mempunyai akses di mana keesahan dan kesahihannya adalah disahkan oleh saya hanya kecuali jika sekiranya dinyatakan sebaliknya oleh saya.”

7.     During the trial in the High Court, the Respondent alleged that the Appellant has no authority to affirm the afidavit balasan for the other co-proprietors, therefore, the Appellant had failed to raise any ground to challenge the OS.

8.     The learned High Court judge accepted the argument by the Respondent as there was no evidence purporting that the Appellant was empowered to file the afidavit balasan on behalf of the other co-proprietors.

9.     The Appellant then filed an appeal on the ground that the learned High Court judge had erred in dismissing the afidavit balasan without any judicial appreciation of the afidavit balasan presented by the Appellant.

2.     As a procedural legal requirement, the deponent of the affidavit must be able to prove the matters that he/she had averred in the affidavit.

3.     According to Syed Ahmad Idid JC in Sabah Bank Bhd v Pemborong Keningau Sdn Bhd & Ors [1991] 3 CLJ (Rep) 677, the principle regarding an affidavit is as follows:

“Affidavits are personal to those who depose them and if statements therein are incorrect, the deponents must be held liable (and in appropriate cases, punishable under the Penal Code).  So, it is not the business of anyone unless he is so authorised to depose to facts and much less for counsel to include contentions materials in their affidavits.  Though in that case the deponent is a solicitor, the principle is the same.”

4.     The Court also highlighted the same in Bank Utama (Malaysia) Bhd v Seri Mayhua Sdn Bhd & 2 Ors [2001] 2 AMR 1264 when his lordship held as follows:

“The deponent of an affidavit for any party in respect of any matter related to the party’s affairs, business or dealings which is within the party’s exclusive knowledge, and which is  filed in support of any cause or matter must be authorised by the party to affirm such affidavit.”

5.     The Court is of the view that the consideration taken by the Appellant  was not enough as he had only affirmed the afidavit balasan on behalf of the other co-proprietors to be sufficient to cloth him with the authority.

6.     The Court held the correct way in deposing and affirming an affidavit as follows:

“To depose and affirm an affidavit on behalf of another and to be authorised to depose and affirm an affidavit on behalf of oneself as well as on behalf of the other party are two different things.  In this appeal the Appellant merely affirmed the afidavit balasan on behalf of the other co-proprietors but he was not authorised to do so.  Therefore, the learned judge was right not to rely on the affidavit. Without the afidavit balasan, there is no evidence for the learned Judge to consider in answer to the Appellants’ application.

[Emphasised added]

7.     In conclusion, the Court held that is not accurate to say that the learned High Court judge had held the dismissal of the afidavit balasan without any judicial appreciation pertaining to the afidavit balasan.

2.     During the legal proceedings, affidavit mainly served the functions as follows:

(a)  the deponent is asserting that the information in the affidavit is true and it is within the personal knowledge of the deponent; and

(b)  the affidavit shall be admissible as evidence that the deponent is competent to testify in the court as per the content of the affidavit.