Sample Affidavit In Support Messrs. Izat Hazzail & Co..docx

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORIES OF KUALA LUMPUR HIGH COURT 3 (CIVIL DIVISION) CIVIL SUIT NO. WA-22NCVC-94-09-2018

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BETWEEN DATO’ NAZIR RAHMAN BIN RAZAK (NRIC NO: 620131-14-4627) PLAINTIFF

…1ST

SOLIDOR SDN BHD (COMPANY NO: 427493- K) PLAINTIFF

…2ND

AND MKINI DOT COM SDN BHD (COMPANY NO: 676595 - T) …1STDEFENDANT LEE WENG KEAT (NRIC NO: 681130-89-5013) …2NDDEFENDANT WONG TECK CHI (NRIC NO: 711218-07-2793) …3RDDEFENDANT

PLAINTIFFSAFFIDAVIT IN SUPPORT (in support of the Plaintiffs’ striking outOrder 18 r19 a application) I, DATO’ NAZIR RAHMAN BIN RAZAK (NRIC No.: 620131-14-4627), a Malaysian citizen of full age with an address at No.246, Lorong Setia Alam, Taman Royale Eco, Seksyen13, 40000 Shah Alam, Selangor Darul Ehsan do hereby solemnly and sincerely affirm and state as follows:

1. I am the 1st Plaintiff named in this suit 2. I have been duly authorized by all the Plaintiffs to affirm this affidavit on their behalf the

authorization letter by all

plsintiff are

is exhibited as

:NRR 1”

3. Unless stated herein, the facts deposed herein are within my personal knowledge and/or from the records and documents of the Plaintiffs to which I haveunrestricted access thereto. 4. The purpose of this Affidavit is to support the Plaintiffs’ Notice of Application to strike out the Statement of Defence dated on 5th of October 2018 filed by the Defendants. 5. I have been advised by the Plaintiff’s solicitors and verily believe pursuant to Order 18 Rule 19 (1)(a), (b), or (c) of the Rule of Court 2012, that the Defendants’ Statement of Defence discloses no reasonable defence, is scandalous, frivolous or vexatious or it may prejudice, embarrass or delay the fair trial of the action. 6. I crave leave of this Honourable Court to refer the following cause papers: a. Plaintiffs’ Writ and Statement of Claim dated 30th of September 2018 (hereinafter will be referred as “Plaintiff’s Writ and Statement of Claim”); and b. Defendants’ Statement of Defence dated 5th of October 2018

A copy of the Plaintiffs’ Writ and Statement of Claim, both dated 30 th of September 2018 are now produced, shown to me and collectively marked as Exhibit NRR“A-1”.

A copy of the Defendants’ Statement of Defence, dated 5th of October 2018 are now produced, shown to me and collectively marked as Exhibit “A-2”.

Parties 7. Based on paragraph 1 of the Statement of Claim, the first Plaintiff is Dato’ Nazir Rahman Bin Razak (NRIC NO: 620131-14-4627) a Malaysian citizen is and was at all material times the Director for SolidorSdn Bhd. His place of residence is at No.246, Lorong Setia Alam, Taman Royale Eco, Seksyen 13, 40000 Shah Alam, Selangor Darul Ehsan. 8. The second is Plaintiff, SolidorSdnBhd (COMPANY NO: 676595 - T) is and was at all material time a company incorporated under the Companies Act 1965; having its registered address at Suite D-08-02 Plaza Mont' Kiara, No. 2 Jalan Kiara, Mont' Kiara 50480 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur having the business consultation with regards to national and international business and finance.

9. The first Defendant is Mkini Dot Com SdnBhd (COMPANY NO: 676595 - T) is and was at all material time a company incorporated under the Companies Act 1965 and is a licensed media registered under the Communications and Multimedia Act 1998; having its registered address at BalaiBerita, 31, Jalan Riong, 59100 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur. The first defendant owns and operates an online news portal known as Malaysiakini which website is www.malaysiakini.com.

10. The second Defendant, Lee Weng Keat (NRIC NO: 681130-89-5013) a Malaysian citizen is and was at all material times the assistant news editor of Malaysiakini. His place of residence is at No. 88, Jalan Binjai, 50450 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur. 11. The third Defendant, Wong Teck Chi (NRIC NO: 711218-07-2793) a Malaysian citizen is and was at all material times the senior journalist of Malaysiakini. His place of

residence is at No.23, Jalan Cindai, 50450 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur. A copy of the company search on Mkini Dot Com SdnBhd conducted with with Companies Commission of Malaysia is now produced, shown to me and collectively marked as Exhibit “A-3”.

12. On 19th March 2018, the Defendants had authored and authorized the publication of the first (1) Article that defames the Plaintiffs. A copy of particulars of the impugned part in the 1st Articleis now produced, shown to me and collectively marked as Exhibit “A-4”.

13. On 2nd August 2018, the Defendants authored and authorized the publication of the second (2) Article. A copy of particulars of the impugned part in the 2nd Article is now produced, shown to me and collectively marked as Exhibit “A-5”. 14. Based on paragraph 3(a)(i), the Defendants submittedthat they had exercise their duties for a proper purpose, good faith and with balance in the best interest of the readers and the Plaintiffs reputation on these grounds; a. The two (2) Articles were published pertaining to matters of public interest on a national and international scale as the Defendants online news portal were relied by the national and international community for independent media information.

15. Based on paragraph 3 (a)(iii), the Defendants relied The Defendants submitted that the two (2) Articles relied on the defence of fair comment based on these grounds;

Commented [WL2]: So far very good well done umar and group

a. The words in the two (2) Articles are made in the form of comment and not a statement of fact as the Defendants had commented on the financial difficulties faced by the 2nd Plaintiff under the 1st Plaintiff’s leadership b. The comment made in the two (2) Articles was based on true facts as the 2nd Defendant went into financial difficulties due to the 1st Plaintiff’s directorship as stated in Paragraph 9 of the Statement of Claim

16. Based on paragraph 3(a)(iv)(1), the Defendants contended that the two (2) Articles were made to safeguard the interest of profession of consultation in financial and business on national and international level by giving information to the national and international community on the mismanagement of the Plaintiffs.

17. The Defendant also submitted in paragraph 3(a)(iv)(2), the intention for the publication of the two (2) Articles is to protect the credibility, integrity and interest of trade and business industry in Malaysia as corruption and mismanagement by the Plaintiffs would hinder investors to invest in Malaysia

18. Based on paragraph (7)(a)(i), the Defendants denies the Particulars of Special Damages AS the loss of economic opportunities are too remote as the Defendants had no knowledge of the training services agreement to be entered between the Plaintiffs and Viera Bank Co. Ltd and Government of Turkey

19. Based on paragraph 7(a)(ii), the Defendants also stated that the cost of treatment in Pantai Hospital Kuala Lumpur by the first Plaintiff could be reduced by going to the Government Hospital as psychiatric treatment provided by the Government Hospital is cheaper.

The Application to Strike Out the Defendants’ Defences

20. I am advised by the Plaintiff’s solicitors and verily believe that the Defendants’ defences in this action ought to be struck off on the following grounds: a. Since the publication of the Two(2) Articles (refer to “A-4” and “A-5”), the Plaintiff had been prejudiced since the second Plaintiff, SolidorSdnBhd to this date has already suffered economic losses amounting to RM 475,000.00

i. The said articles contain malicious intention to the Plaintiffs’ reputation, trade and business; ii. The articles were posted on the Defendants website, that means the two (2) Articles are accessible by anyone and it had caused the Plaintiffs’ reputation to be tarnished in this country and it includes the international level as well; and iii. the Defendants had maliciously posted defamatory remarks against the Plaintiffs’ credibility, integrity and efficiency.

b. The Plaintiff have forwarded four (4) letters to the Defendants requesting them to make a public apology and withdraw the two (2) Articles posted on Malaysiakini website.

i. The Plaintiff sent to the Defendants the first letter on the 29th of March 2018

ii. The Plaintiff additionally sent to the Defendants 3 more letters of reminder dated 20th April 2018, 3rd August 2018 and 10th August 2018respectively.

iii. The Defendants however, still had failed to respond to the forwarded letters and failed to withdraw and apologize for the (2) Articles published on the first Defendant’s website.

A copy of the four (4) letters that has been sent to the Defendantsis now produced, shown to me and collectively marked as Exhibit “NRRA-6”.

c. It is the Plaintiffs’ rights and liberties and the Plaintiffs provided that the Plaintiff had a reasonable reason to go to a Private Hospital for the treatment.

i. The first Plaintiff is unable to work efficiently due to the Psychological and Mental disorder suffered from the two (2) articles that have been published by the Defendants

ii. Due to the lacks of services that were provided in the General Hospital the Plaintiff need to obtain the treatment from a Private Hospital for a better service in psychological treatment and medications; and

iii. The first Plaintiff is the Director to the second Plaintiff and the First Plaintiff requires immediate medical attention as the first Plaintiff have the responsibility to efficiently run the second Plaintiff (a Company).

A copy of the first Plaintiff’s Medical Reports is now produced, shown to me and collectively marked as Exhibit “A-7”.

A copy of the first Plaintiff’s Medical Billsis now produced, shown to me and collectively marked as Exhibit “A-8”.

d. The Defendants failed to prove that the comments stated in the two (2) Articles were fair and not malicious i. The Defendants did not prove that the comments made in the two (2) Articles (refer to “A-4” and “A-5”), had been done with a thorough research and based on concrete evidences. ii. Thus, making the comments made in the two (2) articles were malicious and have a defamatory weightage towards the Plaintiffs. 21. I am further advised by the Plaintiffs’ Solicitors, for the reasons stated above, the Statement of Defence file by the Defendants discloses no reasonable defenceas the casemay be, that the Defences given were in fact scandalous, frivolous and vexatious or it may prejudice, embarrass or delay the fair trial of the actionthus is unsustainable in law and should be struck out. 22. In the circumstances, the Plaintiffs therefore humbly pray that the PLaintiffs’ Notice of Application filed herein be allowed with costs and costs to be paid by the Defendant to the Plaintiff immediately.

Affirmed by the abovenamed deponent

)

DATO’ NAZIR RAHMAN BIN RAZAK

)

(NRIC No.: 620131-14-4627)

)

At Messrs IzatHazzail& Associates

)…………………………………………………….

In the State of Kuala Lumpur

)DATO’ NAZIR RAHMAN BIN RAZAK

This 9th October 2018

)(NRIC No.: 620131-14-4627)

Before me,

…………………………………………………………………… (Commissioner for Oaths)

This AFFIDAVIT IN SUPPORT is filed by MESSRS IZAT HAZZAIL & ASSOCIATES of 5th Floor, Wisma IH, No. 12, Jalan Dang Wangi, 50100 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur solicitor acting on behalf of the Plaintiffs. [Ref: IHA/CI/DF/0345/18]