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Attempting to improve one’s claim via affidavit evidence
A common feature of civil litigation would be a party “topping-up” their claim (or defence) via affidavit evidence.
An everyday example of this would be O. 14 (Summary Judgment) or O. 18 (striking-out) applications. A litigant may, at times, “top-up” their pleaded case via additional averments and/or documents in their affidavit(s) in support. Oftentimes, this is unsupported by their underlying pleaded claim.
A simple analogy of this comes from the realm of botany. A Writ and Statement of Claim are the “seed” from which the tree (claim) sprouts. All fruit (interlocutory applications) which sprout of the seed must be of the same species. A murungakai tree (moringa, for those unaccustomed) cannot put-forth durians. The same holds true inversely.
Case analysis
A recent example of this may be seen in Itramas Technology v Maju Holdings [2021] MLJU 1174. Here, His Lordship Amin Yahya allowed an application to strike the Plaintiff’s claim.
The High Court, adhering to a strong lineage of precedent, noted that the Plaintiff had deposed an affidavit which was unsupported by its pleaded claim:
[41]From the above submissions advanced on behalf of the Plaintiff, it is quite clear that:
i) The Plaintiff is relying on facts and issues that were not pleaded in the Statement of Claim but by way of the exchange of affidavit in this Application.
[42]The above arguments raised by the Plaintiff through its Affidavit In Reply is in effect an attempt to make good a defect or omission in the Statement of Claim. The Plaintiff cannot and should not be allowed to do so and the following cases make this principle clear:
i) United Malayan Banking Corp. Bhd. v. Palm & Vegetable Oils (M) Sdn. Bhd. & Ors. [1983] 1 MLJ 206 where Raja Azlan Shah (as he then was) held:
“As we have said earlier the deposit of the shares as security was not disclosed in the statement of claim when the action was instituted nor was the fact that the security had been realised in a series of sales of the shares between January and September 1980, and these matters were only disclosed for the first time in June 1981 in the affidavit in support of the O. 14 summons. This omission is surprising, to say the least, and we cannot but observe that any defect or omission in the statement of claim cannot be made good by affidavit evidence : Gold Ores Reduction Co. v. Pain [1892] 2 QB 14 where Mathew J said that –
it is most important that a defendant should know from the writ what the exact claim against him is.”
ii) The case of United Malayan Banking Corporation Berhad v. Datin Theresah Bte Abdullah & Anor. [1994] 2 MLRH 366 applied the above case of Palm & Vegetable Oils (supra) and held:
“These issues were never pleaded in the statement of defence. It is trite law that parties are bound by their own pleadings. This further affidavit cannot be used as an improved version of the statement of defence: UMBC v. Palm and Vegetable Oil [1983] 1 MLJ 206, as followed in Pembinaan V-jaya Sdn. Bhd. v. Binawisma Development Sdn. Bhd [1987] 1 MLRH 287; [1987] CLJ (Rep) 823.”
[43]It appears to be a somewhat common trend for parties, especially when confronted with a summary judgment or a striking out application to attempt to make good an omission or defect in the pleadings or otherwise improve on them through affidavit evidence. Respectfully, I find this trend is unacceptable and should not be encouraged.
[46]However, at no point before or after this Application was filed did the Plaintiff consider it necessary to amend its Statement of Claim.
[47]That being the case, the Plaintiff cannot now be allowed to improve on its claim through its Affidavit In Reply especially when it had every opportunity to do so.
[49]The Plaintiff’s failure to plead these new alleged facts and issues are fatal to its claim against the 1st Defendant.
Would such a scenario always be applicable?
There are situations where an affidavit would go outside the boundaries of a party’s pleaded claim. This may be seen in scenarios involving injunctions or an application to commit.
An urgent application for injunctive relief may sometimes be necessary to preserve the sanctity of the proceedings. The SOC may not always disclose this relief but the power of the Court to grant the same is provided-for by O. 29, r. 1(1) ROC 2012:
Application for injunction (O. 29, r. 1)
1. (1) An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party’s originating process, counterclaim or third party notice, as the case may be.
Similarly, a committal application would certainly not be a part of a pleaded claim in a civil suit.
These would be exceptions. As a general rule, it would be of the imperative for parties to ensure that the facts deposed-to in the affidavits are consonant with the facts contained in the pleadings.
Conclusion
Parties must be circumspect when pleading and drafting affidavits. Relying upon factual material that does not form a part of one’s pleaded case would be embarrassing. The same would also leave one open to an application to strike.
As put by His Lordship Amin Yahya, this trend appears to be on the rise. It would be best for practitioners to carefully consider their pleadings and to take all adequate factual instructions before the same is filed.
To expound-upon the analogy above, only then would one be entitled to enjoy a hearty dish of murungakai leaves and drumsticks (recipe available here, for those interested).
GAVIN JAYAPAL
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