JUDGMENT

Abdul Malik Ishak J:

This judgment was an offshoot of a previous judgment which had since been reported in the popular local law journal vide Datin Melati & Ors v. Syed Hassan Syed Salim [1999] 5 CLJ Supp 582 and that judgment revolved on the defendant's application in encl. 11 to extend time to file an affidavit in reply and I had dismissed encl. 11 with costs. That judgment must have gone well with the defendant because he withdrew his appeal and this opened the door for this court to hear encl. 3. When the defendant filed encl. 11, the defendant sought to extend time to file an affidavit in reply that was affirmed by the defendant on 13 February 1998 and filed surprisingly on 11 February 1998 as reflected in encl. 7. So when this court dismissed encl. 11 with costs, it meant that encl. 7 too was not received by this court. In short, encl. 7 fell like a deck of cards together with encl. 11. Enclosure 7 was expunged by this court.

Enclosure 3 was an application by the plaintiffs to remove the defendant as an administrator of the estate of Syed Salim bin Hassan Alattas and encl. 3 was filed on 13 August 1997. Enclosure 3 was supported by an affidavit of Datin Melati binti Abdullah that was affirmed on 11 August 1997 and filed on 13 August 1997 as seen in encl. 2. By way of a rebuttal, the defendant affirmed an affidavit in reply on 13 July 1998 which was filed on the same date and this can clearly be seen in encl. 17.

Miss Fadzilah Mansor, learned counsel for the plaintiffs, in a style of her own objected to the defendant using encl. 17 as a reply to encl. 2. It was her submission, and a correct one at that, that encl. 17 was an exact replica of encl. 7. It was plain and obvious that encl. 17 was filed by the law firm of Messrs Radzuan Ibrahim & Co. knowing fully well that it was an exact replica of encl. 7. Indeed Mr. Joseph Mathews for the defendant agreed that he had no basis whatsoever for using encl. 17 as a reply to encl. 2 for the simple reason that this court had earlier on dismissed encl. 11 with costs. Mr. Joseph Mathews even submitted that the decision of this court in regard to encl. 11 was final and I may add conclusive.

Mr. Joseph Mathews knew that the chips were down but all the same he half-heartedly argued, by way of a preliminary objection, that the jurat in encl. 2 was defective as it contravened O. 41 r. 3 of the Rules of the High Court 1980 ("RHC"). In a surprise move he then withdrew the preliminary objection and left it entirely to this court to decide. Order 41 r. 3 of the RHC states as follows:

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 deponent;

(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.

and if it appears that the deponent is an illiterate and the affidavit sworn by the deponent had not been read over to the deponent in the presence of the Commissioner for Oaths, then the affidavit would be ordered to be taken off the file (Re Longstaffe, 52 LT 681). Should I order the affidavit in encl. 2 to be taken off the file? Enclosure 2 is the joint affidavit of three personalities. All the three plaintiffs affirmed the affidavit in encl. 2 and only Datin Melati bte Abdullah thumbprinted the affidavit. The other two personalities signed the affidavit in encl. 2. The affidavit in encl. 2 was in the National Language - Bahasa Malaysia, and the three personalities who were Malays should understand the language. There is no proposition of law to say that a person who thumbprints an affidavit is said to be an illiterate. The Concise Oxford Dictionary, 9th edn, defines the word illiterate as "unable to