Judgment

Shaik Daud, JCA

(delivering the judgment of the court)

1. This is an appeal against the decision of the High Court which had allowed an application by the respondent to cross examine one Harunarashid Salleh who had affirmed an affidavit dated 6 December 1994, in support of the appellants' application for leave to intervene in a suit between the respondent, the Railway Co-operative Multi- Purpose Society Ltd (‘ROMPS’), and Koperasi Belia Nasional Bhd (‘KOBENA’).

2. The background leading to the filing of the said affidavit are that RCMPS had filed a suit against KOBENA in 1989, claiming a sum of RM3,200,731.63 with interest owed by KOBENA.

3. On 1 April 1992, a consent judgment for this sum was entered against KLOBENA.

4. When KOBENA failed to settle the judgment sum, RCMPS applied to the court to enforce the judgment dated 1 April 1992, by attaching certain shares belonging to KOBENA. The application was heard by the senior assistant registrar and was dismissed.

5. Thereupon, RCMPS applied exparte and obtained a Mareva injunction against KOBENA on 17 October 1994. The Mareva injunction was served on the appellants as the appellants held shares and other assets belonging to KOBENA.

6. On 6 December 1994, the appellants applied for leave to intervene and that application is still pending before the High Court.

7. It was in support of this application that Harunarashid Salleh affirmed and filed the affidavit in question. He affirmed the affidavit in his capacity as one of the representatives appointed by Bank Negara for both appellants under regulation 9(1)(b) of the Essential (Protection of Depositors) Regulations 1986.

8. It was contended firstly by counsel for the appellants that the respondent's application to cross-examine the deponent of the said affidavit is premature as the application for leave to intervene is still pending before the High Court. He contended that once the application for leave to intervene is granted, then it would be proper for the respondent to apply to cross examine the said deponent. Secondly, the said affidavit was filed on 6 December 1994 and the application to cross-examine was only filed on 7 July 1995, some seven months later. Furthermore, the truth of the facts deposed to in the said affidavit had not been denied or challenged by the said respondent. The respondent merely construed those facts differently. Therefore, there is no basis to cross examine the said deponent.

9. Learned counsel for respondent conceded that in order to intervene, a party must persuade the court that it has some interest and affidavit in support of such an application must show this.

10. He, however, contended that if the affidavit in support is unsatisfactory and is in general terms without condescending to particulars, the court would need further questions to be answered. Hence, the need to cross examine the deponent of such affidavit becomes important.

11. Now, whether to grant or refuse leave to intervene is in the discretion of the court. It is trite law that where any party intends to intervene in a suit pending before the court, it must show it has some interest in the suit.

12. The court will rely on the affidavit in support to determine whether there exist such interest or otherwise. If as is conceded in this case, the affidavit in support is in general terms without condescending to particulars and therefore unsatisfactory, then in all probabilities, the court will reject the application.

13. For the court to order cross-examination of the deponent of an affidavit in support, the respondent must challenge the truth of the averments in the affidavit. In the present case, no where has the affidavit-in-support of the application to cross examine specifically deny or challenge the facts deposed to in the said affidavit. For instance, the circumstances by which the appellants came to hold shares, particularly, the shares in United Merchant Group, belonging to KOBENA, was explained in the said affidavit in support affirmed by Harunarashid but nowhere has the affidavit in support of the application to cross examine affirmed by one Lim Say Hock, the secretary of RCMPS, denied or challenged this.

14. On the contrary, it would appear that the purpose of the cross-examination is to further their attempt to attach the shares. The matters averred to in Lim Say Hock's affidavit can be questioned after the appellants had been made interveners.

15. It appears to us that by their application, the respondent is embarking on a fishing expedition.

16. We are satisfied that, the respondent has not shown that there are disputes or facts in issue in the affidavit of Harunarashid to warrant him to be cross examined and as the application for leave to intervene is pending before the court, it is premature to apply to cross examine the deponent of the affidavit in question. We allowed the appeal with costs here and below and ordered the deposit to be refunded to the appellant.

Legislations

Essential (Protection of Depositors) Regulations 1986: Reg.9(1)(b)

Representations

Murali Achan (Vijendran & Co) for the appellants.

A Kanesalingam (Kanesalingam & Co) for the respondent.

Notes:-

This decision is also reported at [1999] 2 MLJ 673