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DO IT YOURSELF AFFIDAVITS
e-Mail: I have been sued in the Court by my business associate. I attended the court hearing and the judge told me to file an affidavit. This sounds Greek to me. What is an ‘affidavit’? How can i prepare an affidavit to reply to the claim against me? I am too broke to engage a lawyer.
F. E. DAVID
LEX-BORNEO:
An affidavit is a statement or declaration in writing made on oath or solemn affirmation setting out certain facts and sworn or affirmed before a person having the authority to administer oath or affirmation. Affidavits are required for filing in judicial proceedings before courts or in proceedings before other authorities. Usually the rules of courts or the rules governing the proceedings before the authorities prescribe the form and contents of affidavits.
The ordinary rule is that the decision of a court on facts must be based on evidence recorded in court and the court is empowered to permit any particular fact or facts to be proved by affidavit.
Contents of affidavits
An affidavit must be on A4 paper and should be produced by printing and the pages should be numbered consecutively.
Affidavits usually consist of 6 parts, namely, the heading the introduction, the averments, the swearing or affirmation, the indorsement, and the certificate for exhibits.
(i) HEADING
The heading contains a description of the court or authority before which the affidavit is to be filed and a description of the case or proceedings in which the affidavit is to be filed. An affidavit must be entitled in the cause or matter in which it is sworn.
Example:-
STATE OF SABAH MALAYSIA
IN THE MAGISTRATES COURT AT KOTA KINABALU
SUMMONS NO MC 72-549 OF 2009
B E T W E E N
KEWANGAN BANYAK DUIT BERHAD … Plaintiff
A N D
ARIFIN BIN SU (NRIC NO 5555-77) … Defendant
ii) INTRODUCTION- After the heading follows the introduction of the person making the affidavit, who is known as the deponent. The affidavit should be expressed in the first person.Thus it begins with the name of the deponent; “I , Joe Beruang” followed by his place of residence and his occupation or, if he has none, his description.
Example:-
I, F. E. DAVID [NRIC NO 7777-55] of Ground Floor, Lot 32, Kolam Centre, Luyang, 88300 Kota Kinabalu, Sabah, and General Manager of the Plaintiff make oath and say as follows:-
iii) AVERMENTS
Averments contains the statement of facts made on oath or affirmation set out in serially numbered paragraphs. This is the body of the affidavit.The body of the affidavit must be divided into paragraphs, numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject. Dates, sums and other numbers must be expressed in an affidavit in figures and not in words.
Those who are responsible for drawing affidavits should be circumspect and should not make statements when there is no basis in fact for making them. Whenever a person makes a statement in court on oath or affirmation, whether oral or in an affidavit, he is bound to state the truth. The Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive
Example Of The Body Of An Affidavit
1 I am the family physician of the family of Judith Lim.
2 I have on 7th August, 2006 medically examined the following children of Judith Lim in my clinic known as Clinic Dr Ali Hassan located at Ground Floor, Lot 22, Sejati Centre, Luyang, 88300 Kota Kinabalu, Sabah.
i. John Arthur aged 8 years
ii. Jerome Jude aged 6 years
3 As a result of such examination, I have found both children to be of sound mind, good health and not suffering from any known physical or mental disorder or illness.
iv) SWEARING OR AFFIRMATION
This contains an endorsement by the court, or Commissioner of Oaths to the effect that the deponent (i.e. the maker of the affidavit) has duly sworn affirmed the contents of the affidavit. Every affidavit must be signed by the deponent and the jurat must be completed and signed by the person before whom it is sworn. The jurat usually appears at the left hand side of the page immediatedly below the last paragraph of the affidavit. The signature is written on the right hand side of the jurat. The signature of the person before whom the affidavit is sworn must be legible or repeated below the signature in block letters or rubber stamp. It looks something like this:-
AFFIRMED BY YONG SWEE PIN )
this 20th day of March 2003 )
Before me, ) ……………………………………….. )
)
)
)
………………………………………………………
Commissioner for Oaths
Usually an affidavit is executed by a single person but it is permissible for two or more persons to jointly execute an affidavit. The affidavit can either be affirmed or sworn. Certain persons such as those of the Muslim faith take objection to swearing on religious grounds. Therefore they only affirm an affidavit.
(v). THE INDORSEMENT
Every affidavit must be filed in the Registry of the particular court and every affidavit must be indorsed with a note showing on whose behalf it is filed and the dates of swearing and filing.
The Indorsement looks something like this:-
“THIS AFFIDAVIT is affirmed on the 10th day of August, 2003 and is filed on the 11th day of August, 2003, by the Plaintiff Verimoney Jaya whose address for service is at Suite No. 2008, East Wing, Level 2, WISMA KOLASA Kota Kinabalu, Sabah, Advocates for the abovenamed Petitioners.”
(vi) THE CERTIFICATE FOR EXHIBITS
The Affidavit may refer to documents which the deponent wishes to rely on an exhibit to the Court. Any document to be used in conjunction with an affidavit must therefore be exhibited and a copy thereof annexed to the affidavit. Any exhibit to an affidavit must be identified by a certificate of the person before whom the affidavit is sworn. The certificate must be entitled in the same manner as the affidavit.
Example of the Certificate:-
IN THE MAGISTRATES COURT OF TAWAU
SUMMONS NO 52-555 OF 2005
BETWEEN
KINGSWEAR SDN BHD …PLAINTIFF
(COMPANY NO. 1000-b)
AND
LAWRENCE JOSEPH … DEFENDANT
(NRIC NO. H10000200)
C E R T I F I C A T E
I hereby certify that the documents attached hereto marked as "LJ-1 and “LJ-2”" are the exhibits referred to in the Affidavit of LAWRENCE JOSEPH (NRIC NO. 1000002000) affirmed to before me on 10th day of January, 2005.
Before me,
…………………………………………….
COMMISSIONER FOR OATHS
Affidavits by illiterate or blind person.
Where it appears to the person administering the oath that the deponent is illiterate or blind, he must certify in the jurat that:-
(a) the affidavit was read in his presence to the depondent;
(b) the deponent seemed perfectly to understand it; and
(c) the deponent made his signature or mark in his presence;
and the affidavit shall not be used in evidence without such a certificate unless the Court is otherwise satisfied that it was read to and appeared to be perfectly understood by the deponent.
Alterations in affidavits.
An affidavit which has in the jurat or body thereof any interlineation, erasure or other alteration shall not be filed or used in any proceeding without the permission of the Court unless the person before whom the affidavit was sworn has initialled the alteration and, in the case of an erasure, has re-written in the margin of the affidavit any words or figures written on the erasure and has signed or initialled them.
No alteration shall be made in any affidavit after it has been filed, but, before an affidavit is filed alterations may be made therein and the affidavit must be re-sworn with a further jurat commencing with the word "re-sworn", added.
Affidavit taken outside Malaysia
An affidavit affirmed or sworn before Court, judge, notary public or person having authority to administer oaths in a Commonwealth country and in the case of any other country the seal or signature of a consular officer of a Commonwealth country is valid for Court proceedings in Malaysia.
A SAMPLE AFFIDAVIT
When all the requirements for an affidavit spoken of above are satisfied, it would look something like this:-
IN THE HIGH COURT IN SABAH AND SARAWAK AT SANDAKAN
DIVORCE PETITION NO 10 OF 2000
JENNY ASPIRIN … PETITIONER
AND
TONY ASPIRIN … RESPONDENT
AFFIDAVIT
I, JENNY ASPIRIN, of Ladang Dua, East Road, Sandakan, Sabah do solemnly and sincerely affirm as follows:
1. I am the above named Petitioner and make this affidavit in support of my application for orders restraining the Respondent from molesting myself and the children of the family Ted and Sweetie.
2. I was married to Tony Aspirin, the Respondent herein, at the registry of marriages on the 1st day of April, 2001 A copy of our marriage certificate is now shown to me marked as exhibit 'JA-1'.
3. The Respondent and I have two children from the marriage namely Ted and Sweetie and a copy of each of their birth certificates are now shown to me in a bundle marked as exhibit 'JA-2'.
4. There is now produced and shown to me marked 'JA-3' a copy of my petition for divorce, the contents of which are true.
5. I was separated from the Respondent on the 9th day of September, 2001 and it was mutually agreed between us that he should have rights of access to the children who are now living with me in a rented house at No. 15, Taman Tiga, West Road, Sandakan.
6. The Respondent's visits are irregular but during these visits he would occasionally show his temper by being rude and abusive towards me.
7. Lately, the Respondent's behaviour has become worse. He has taken to coming by when he is drunk and inevitably, he would create a row by shouting and hurling abuses at me and showing his brute force by banging walls and hurling household items around.
8. The Respondent's unruly behaviour of late is not only highly embarassing and emotionally upsetting to my children and I but also disrupts the place of the neighbourhood.
9. I am also extremely worried over the emotional well being of my children as they have been witnessing the Respondent's violent behaviour. They are both very nervous and afraid whenever the Respondent's comes on his visits due to an incident two months ago when the Respondent slapped my elder son Ted on his face while I was out.
10. The Respondent has in the past beaten me up. A copy of the medical report from the General Hospital where I sought treatment at are now shown to me in a bundle marked exhibit 'JA-4'.
11. I genuinely fear that if the Respondent is not prevented from coming to my home, he will start to beat me up again. As it is, his constant harassment and intimidation is very distressing.
12. The last occasion when the Respondent came to my home to create a scene was on the 9th day of September, 204 As he was then drunk, I dare not risk retaliation for fear that he would harm my children and I. I have however lodged a police report against him. A copy of the police report is now shown to me marked as exhibit 'JA-5'.
13. I verily believe that it is for the benefit and well being of my children if the Respondent is prevented from coming to see us at my home. Unless an injunction in the terms which I am seeking is granted, he will continue to harass and intimidate us.
14. I respectfully ask this Court to accord me relief as prayed.
Affirmed at Sandakan )
the 21st day of April, 2005 )(Deponent's signature)
…………………………………….
Commissioner of Oaths
This affidavit is filed by Jenny Aspirin the Petitioner whose address for service is at Ladang Dua, East Road, Sandakan, Sabah, Malaysia.
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LEX BORNEO MAIL-BAG- Crimes of Passion- Murderous love in Borneo
SMS 1. ; Yes I disagree with the decision of the Singapore Court in Sunny Ang’s trial. In fact although Sunny may have had evil intentions towards Jenny he did not force her to make the dive. The only evidence that points to Sunny’s guilt in this affair is that he probably may have cut Jenny’s flipper but even then she could have checked her gear before she took the plunge. ………..Dressed to Kill
SMS 2: Jenny trusted Sunny totally. She was not as smart as Sunny so her absolute trust in Sonny cost her her life.However Sunny was plain stupid in not covering his tracks. He should have renewed the insurance on his own life and he did not show any emotions after Jenny went missing. He may have been a cruel and evil man but that doesn’t mean he deserved the death sentence………..E KUIH TI
E-MAIL : “The conduct of the appellant after the disappearance of Jenny was described by Yusof and other witnesses. It was open to the jury to find that there was a lack of urgency in the conduct of the appellant at the relevant time”.
Eventhough there is no act of killing (actus Reus) but "act" includes ommission...Sunny has duties "not to injured his neighbours" ...Jenny based on the testimony of the sole witness yusof at the scenery of the crime infect had refused to dive twice but forced by Sunny ......Sunny is a murderer ....a very stupid murderer at his time.
Immanuel Joseph
