(delivered the judgment of the court)

1. By writ of summons dated 26th January, 1969 the plaintiff/respondent commenced this action against the defendant/appellant, seeking, inter alia, an order that the transfer to the appellant of land, Lot No: 2550, Mukim Padang Embong, Daerah Kubang Sepat, Pasir Mas, held under N.E.M.R.207 (“the said land”), be declared null and void and that the register be rectified accordingly and the plaintiff be declared as the proprietor of the said land. The suit was settled and a consent order was entered before Abdul Razak J on 6th of January 1976 wherein it was ordered that:–

   (1)	the plaintiff shall pay the defendant the sum of $3,350.00 inclusive of costs within the period of one month from the date thereof;
   (2)	the defendant shall execute a valid and registerable transfer of the said land to the plaintiff upon receipt of the said sum of $3,350.00;
   (3)	in default on the part of the plaintiff to pay defendant the said sum of RM$3,350.00 within the said time the plaintiff shall forfeit his right to the said land.

   The respondent did not pay the said sum within the stipulated time. However, he alleged that he did attempt to make the said payment within the stipulated time but was rebuffed by the appellant.

2. By summons in chambers (“SIC”) dated 29th of May 1976 the respondent made the present application seeking leave of court to issue execution against the appellant of the order dated 6th of January 1976.

3. The application was, for some reasons, adjourned on a number of occasions, and it was not until 1st of August 2000, the SIC was finally heard and disposed of by Suriyadi J. He made an order in terms of the respondent’s application. The appellant is dissatisfied with the decision of the learned judge and hence this appeal.

   PRELIMINARY OBJECTIONS

4. At the hearing before Suryadi J the learned counsel for the appellant made an oral application to strike out the respondent’s application for want of prosecution on the ground of inordinate delay, laches, and for taking a fresh step whilst this application was still pending. This did not find favour with the learned judge. However, no reason was given in rejecting the respondent’s application. The same application was again made to this Court. Having considered the matter, we are of the view that procedurally the application ought to have been made by way of summons in chambers to be supported by affidavit. (See Negara Properties Sdn Bhd v Akitek Bersekutu Malaysia (1995) 2 MLJ 184; Samy Vellu v Karpal Singh (1989) 3 MLJ 493.) Relying on the above authorities, clearly the application could not properly be made by way of a preliminary objection supported by statements of counsel from the Bar. In the circumstances, we hold that the application was not properly before the learned judge and further there was no material before him in support of the application. For those reasons we hold that the learned judge had properly exercised his discretion in rejecting the application. As we see it, this is nothing more than just an attempt by the appellant to short cut or truncate the entire proceedings. For the above reasons, the said application by the appellant is dismissed.

   THE MERITS

5. Principally the complaint by the appellant is that the learned judge, after hearing the oral testimonies of the respondent’s witnesses, ought to have given the appellant the same opportunity. By failing to do so it is contended that the appellant had been deprived of his right of hearing. In considering this issue it should be borne in mind that this is an application by SIC. The respondent filed affidavits in support of the application, and the appellant filed his affidavit in opposition. When the matter came up for hearing before Suriyadi J the deponent of the affidavits supporting the application were called for cross-examination, except for the respondent, who had since passed away. The appellant, though still alive at that the material time, was not call for either examination-in-chief or cross-examination. In the record of appeal the learned judge noted thus:

   Defendant not required to be called as nobody made that application. No necessity. I will depend on affidavits to ascertain and decide.

6. The right to cross-examine the deponent of an affidavit is governed by O.38 r. 2(3) of RHC which provides, inter alia, that the court may, on the application of any party, order the attendance for cross-examination of the deponent of an affidavit and when, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the court. In the present case no application was made by the respondent’s counsel to cross-examine the appellant, nor was there any application for the appellant to give evidence on oath. The learned judge did not think it necessary to call the appellant to the stand. Thus, in the circumstances the learned judge is perfectly entitled to make his finding based on the evidence before him. Having done so, he held that the respondent had, on balance of probability, made out a case against the appellant. We do not see any procedural impropriety in that. In support, we would refer to the case of D.B. Brace, Ex Parte The Debtor v H. Gabriel (1966) 1 WLR 595. Briefly the facts of the case taken from the head note are as follows –

   A petitioning creditor presented a petition based on the debtor’s failure to comply with a bankruptcy notice. The petitioning creditor’s solicitors’ articled clerk swore a formal affidavit of service of the petition on the debtor. After a receiving order was made on the petition, the debtor applied, pursuant to section 108(1) of the Bankruptcy Act 1914, to rescind it on the ground that he had not been served with the petition. He swore an affidavit in support of his application deposing that he had not been served with the petition; he also filed a like affidavit by the secretary of a company of which he was managing director. Both the debtor and his supporting deponent were present on the hearing of the application for rescission of the receiving order and were tendered for cross-examination. The registrar indicated, having read the affidavits, that he would like to hear evidence of the service of the petition, and, accordingly, the petitioning creditor’s solicitors’ articled clerk gave oral evidence of the service of the petition; he was subjected to a searching cross-examination by counsel for the debtor, at the end of which the registrar said that he was satisfied as to the service of the petition and dismissed the application. The debtor appealed on the ground that the registrar was not entitled to form a view without hearing the cross-examination on his and his deponent’s affidavits.

   His appeal was dismissed by the Court of Appeal, Sellers L.J. in dismissing the appeal at pg.597 stated thus:

   It is said before this court that there was some misconduct in those proceedings, based on the remarkable contention that there was no cross-examination on the two affidavits which the debtor had put in. There was no occasion for any cross-examination. Oral evidence was given by the one witness whom the court desired to be cross-examined on his affidavit, on oath, and that was convincing evidence which overbore the evidence on oath of the other two deponents, the debtor and his other witness. I can see no ground whatever for saying that that matter was not perfectly conducted. There was no request on behalf of the debtor that he or his witness should give evidence on oath. All that is said is that the witnesses were there and were offered for cross-examination. I can see no occasion for any cross-examination at all. The affidavits on their face were not very convincing, they were equivocal; and the evidence of Lowe had been convincing. That was the simple issue for the registrar, and he decided against the debtor.

   In the present case the learned judge held that the circumstances warrant the court to exercise its discretion in favour of the respondent. He gave his reasons, which read as follows –

   How could I not have been convinced of the plaintiff’s case when PW2, the wife of the late plaintiff in clear terms testified that she personally went to the defendant’s house with her late husband, to make the alleged payment but was rebuffed. The defendant instead told her husband to make the necessary payment at his office. Likewise the same thing happened there. She took a “beca” (a form of public transport) to reach the house, ridden by one Zali Berahim. The latter (PW4), confirmed all the salient facts, even to the extent of knowing the purpose of the visit to the defendant’s house. He also saw the money brought by the plaintiff. PW3 also testified that she loaned RM1000 to the late plaintiff for purpose of the impugned payment. If I may add, there is nothing available before me to show that the witnesses were not credible, had been coached or their evidence had been tainted by some reason or other.

7. In short he said, after considering the affidavits filed by both parties and after hearing the oral testimonies of PW2, PW3 and PW4 he is convinced that PW2, PW3 and PW4 were witnesses of truth. He then came to his finding that the respondent did go to the appellant’s house to make the necessary payment pursuant to the court’s order and the appellant rebuffed the payment. In the circumstances, we are of the view the learned judge was entitled to come to that finding. This is a finding of facts and since the learned judge had heard and seen the witnesses he would be in a better position to assess their credibilities, and, it is not open to us at the appellate level to interfere with the said finding. This is in line with the established principle laid down in a long line of authorities that, the appellate court is always slow to interfere with the finding of facts made by the trial judge as he had the advantage of hearing and seeing the witnesses and, would therefore, be in a better position to assess their credibilities. (See Choo Tiong Hin v Choo Hock Swee (1959) MLJ 67; Luh Din Chong v Ngu Een Ngouk (1966) 1 MLJ 1129; Tan Chow Soo v Ratna Ammal (1969) 2 MLJ 49; Chong Sooi Chuen v Yuen Lai Chan (1988) 2 MLJ 443).

8. For the above reasons we hold that there is no merit in this appeal and the appeal is accordingly dismissed with costs to the respondent, and the deposit to be paid to respondent towards account of taxed costs.

Cases

Negara Properties Sdn Bhd v Akitek Bersekutu Malaysia (sued as a firm) (1995) 2 MLJ 184; Samy Vellu v Karpal Singh (1989) 3 MLJ 493; D.B. Brace, Ex Parte The Debtor v H. Gabriel (1966) 1 WLR 595; See Choo Tiong Hin v Choo Hock Swee (1959) MLJ 67; Luh Din Chong v Ngu Een Ngouk (1966) 1 MLJ 1129; Tan Chow Soo v Ratna Ammal (1969) 2 MLJ 49; Chong Sooi Chuen v Yuen Lai Chan (1988) 2 MLJ 443.

Legislations

Rules of High Court 1980: O.38 r.2(3)

Representations

SG Foo for appellant (instructed by Messrs Foo Say Ghee & Zamzuri)

Zainal Abidin Mustaffa for respondent (instructed by Messrs Zainal & Mariani)