Two tricks in dealing with an opponent’s Affidavit

There are two sure techniques in dealing with affidavits. One is a move of offence, the other is defence.

[1] Flying Affidavits

There comes a time when the registrar or the judge or the court of appeal is confronted with a pile of affidavits – each party saying the opposite thing.

[2] There are two ways of dealing with it:

[3] The First Method

The first is to see whether you can credibly attack the allegations of the other side.

For example, the other person says he has been oppressed as a shareholder in a shareholder’s dispute and that the majority shareholders have treated him in an abominable manner.

Here, you have to show that that is not so.

What do you do?

You can say the obligation of the company and the majority shareholders is set out by company law and common law. You could say that have taken time and effort to ensure that all those legal obligations have been informed to the petitioner.

For example, you might say that notices, agenda and other relevant content of all general meetings were notified to him in good time, that minutes of meetings were sent to him, that he was informed of the allotment of shares; and he was granted a reasonable an opportunity to purchase the extra allotted shares, etc.

That is a credible attack. That is decided in a 1980s Privy Council case of the Tay Bok Choon v. Tahansan Sdn Bhd [1987] 1 MLJ 433 where a person attacks another person’s allegations credibly then the deciding magistrate or the judge cannot make a decision on the point and issue.

The magistrate has to abandon the point in issue and move on to another point because there are opposing pieces of evidence that say opposing things.

The magistrate cannot come down to the one side or to the other.

[4] The Second Method 

This is something everybody is lazy to do, but should do more.

This is to apply, by using the Rules of Court 2012, to cross examine the deponent of an affidavit who is saying opposing things to what you are saying. You must be sure that he is not telling the truth.

For example, he has made a previous statement which is inconsistent with the current statement or there are documents which completely contradict what he says.

If you do that and you bring him forward to the court then you can discredit him in open hearings.

It is not usually done but it is better to do it. This is because it is better to challenge an allegation against you by an application to cross-examine.

If you do not and you carry on with your hearing then the judge has no choice but to make a qualitative assessment of which evidence, he or she thinks is more favorable to the one side or the other.

Only then the judge can come down on that side of it.

Therefore, do not let a situation arise where that risk occurs.

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