Ramly Ali JC:

Background

The plaintiff filed his summons-in-chamber (SIC) on 28 July 2001 (encl. 4) for an injunction to restrain the defendants from entering and working on his 4,327 sq. ft. land at H.S.(M) 3709, PT 4369, Mukim Pelangai, Daerah Bentong, Pahang Darul Makmur. To support his application, the plaintiff filed two affidavits, namely: affidavit-in-support sworn by the plaintiff personally on 13 July 2001 and affidavit tambahan, also sworn by the plaintiff on 24 August 2001.

Preliminary Objections By The Defendants

Before hearing the said SIC, the defendants raised preliminary objections to the effect that:

(i) the affidavits do not comply with O. 41 r. 1(4) of the Rules of the High Court 1980 (RHC 1980), as the deponent's occupation or description is not stated therein;

(ii) the affidavits do not comply with O. 41 r. 1(7) and (8) of the RHC 1980 in that the jurat therein is defective;

(iii) the affidavits do not comply with O. 41 r. 3 of the RHC 1980 in that the jurat used is inapplicable as the deponent is or is deemed to be illiterate.

Issues To Be Determined

After going through the relevant affidavits and submissions by both counsels for the plaintiff and defendants, I found that there are several issues that need to be considered and determined by the court. The issues are as follows:

(i) whether failure to state the deponent's occupation or description in the affidavits as required under O. 41 r. 1(4) of the RHC 1980, is fatal or just a mere irregularity which can be cured;

(ii) whether failure to insert the name of the interpreter twice in the relevant columns in Form 78(d) of the RHC 1980 amounts to an irregularity. If so, whether it can be cured;

(iii) whether the interpreter named in Form 78(d) of the RHC 1980 need to sign the jurat therein;

(iv) what is the apprepriate form of jurat to be used in cases where the affidavit is in Bahasa Malaysia and the deponent does not understand the language used;

(v) whether a certificate under O. 41 r. 3 of the RHC 1980 is required where the deponent is illiterate; and whether such affidavit without the certificate can be accepted by the court.

Findings Of The Court

I shall now deal with all the issues raised.

Order 41 r. 1(4) Of The RHC 1980

Order 41 r. 1(4) states:

(4) Every affidavit must be expressed in the first person and must state the place of residence of the deponent and his occupation or, if he has none, his description,and if he is, or is employed by, a party to the cause or matter in which the affidavit is sworn, the affidavit must state the fact.

The defendants argued that the deponent has failed to state his occupation in both the affidavits or his description as required under O. 41 r. 1(4). The defendants submitted that if the deponent has no occupation, he must state his description and the "description" must refer to "his occupation" ie, whether he is "a pensioner" "un-employed" or "housewife", etc. With respect, I cannot agree with this submission. The words "his description" in O. 41 r. 1(4) is only applicable when the deponent has no occupation. If he has an occupation, he must state so, and thus "his description" does not arise at all. If he has no occupation, then he must state "his description". "His description" is different from "its description". In the proper context of O. 41 r. 1(4), "his description" must refer to the description of the deponent, not description of the occupation. If it is meant to be description of the occupation, then the words used should be "it's description". In any event, it is illogical for the deponent to "describe his occupation" when he has none. In the present case, the deponent has deposed in both the affidavits that:

1. Saya adalah Plaintif dan seorang Tuanpunya tanah dalam tindakan ini.

2. ...

3. Saya adalah Tuanpunya tanah yang dikenali sebagai H.S.(M) 3709, P.T. 4369, MUKIM PELANGAI, DAERAH BENTONG, PAHANG DARUL MAKMUR dengan keluasan sementara sebanyak 1.214 hektar.

With the above description, I a