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Avoiding the Hearsay Trap: Why Your Court Affidavit Must Be Based on Personal Knowledge

Avoiding the Hearsay Trap: Why Your Court Affidavit Must Be Based on Personal Knowledge

When you are involved in a commercial or civil lawsuit in Malaysia, the evidence you present can make or break your case. In many court applications, evidence is submitted through a written document called an affidavit. However, a common mistake many litigants make is including information they heard from someone else—otherwise known as hearsay evidence.
If your legal rights are being finally decided in a specific court application, using hearsay can cause the court to reject your evidence entirely.
The General Rule: Personal Knowledge Only
Under Malaysian court rules (formerly Order 41 rule 5(1) of the Rules of High Court 1980, now reflected in the Rules of Court 2012), an affidavit must only contain facts that you can personally prove.
This means you cannot say, "My manager told me that the contractor breached the agreement." Instead, the person who actually witnessed the breach must be the one to sign the affidavit.
What the Malaysian Courts Say: The Dream Property Case
This strict legal requirement was robustly affirmed by the Malaysian Court of Appeal in the landmark case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2008].
In this case, the court clarified a crucial legal boundary:
  • The Ruling: When a specific court application will conclusively determine the legal rights of the parties, the general rule applies strictly.
  • The Outcome: The affidavit must completely exclude hearsay. The person signing the document (the deponent) must speak strictly from their own first-hand, personal knowledge.
Why This Matters for Your Business or Legal Claim
Filing a defective affidavit filled with second-hand information can lead to severe consequences for your legal strategy:
  1. Evidence Struck Out: The opposing party can apply to strike out the hearsay paragraphs, leaving your case weak.
  2. Lost Applications: If your core evidence is dismissed as hearsay, the court may rule against you in that specific application.
  3. Increased Legal Costs: Correcting these mistakes or losing applications results in unnecessary delays and higher legal fees.
How a Law Firm Helps You Navigate Affidavit Drafting
Protecting your business interests requires precision. A qualified litigation lawyer ensures your court documents are airtight by:
  • Identifying the correct individuals (deponents) who have direct knowledge of the events.
  • Reviewing drafts to systematically remove any phrases that constitute inadmissible hearsay.
  • Structuring your evidence to clearly align with current Malaysian judicial precedents.

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