Kemayan Construction Sdn Bhd

- vs -

TC Development Sdn Bhd

Judgment[a]

Abdul Hamid Said, JC

1. Before hearing the plaintiff's application to strike out the defendant's amendment to its amended statement of defence (Enclosure 41), the defendant raised two preliminary objections. I have dismissed both objections. The defendant's second objection concerned the form adopted by the plaintiff in its application in (41).[b]

2. I shall now deliver my decision on the objection relating to the plaintiff's non-complying affidavit, in particular the jurat, which was said to have contravened Order 41 r 1(8) of the Rules of High Court 1980, i.e.:

   (8)	A jurat must be in one of the forms in Form 78.

3. And Form 78 in the RHC 1980 says:

   FORMS OF JURAT (Title as in action)
   (a)	To an affidavit by one deponent .................... Sworn (or affirmed) on the ............ day of ...................., 19....., at ...............
   	Before me,   .................................... Commissioner for Oaths

4. The jurat in the supporting affidavit to strike out the defendant's amendment to its defence does not have the following title:

   In the High Court of Malaya At Kuala Lumpur (Civil Division) Suit No.: S2-22-201 Year 1997 Between Kemayan Construction Sdn Bhd. Plaintif And T.C. Development Sdn Bhd Defendant

   This is a repetition of the title to the affidavit that was filed.

5. In the case of Perbadanan Nasional Insurance Sdn Bhd v Pua Lai Ong [1996] 3 AMR 2869 ("the MNI case"), the Court of Appeal decided at p 2883 as follows:-

   Order 32 r 13(2)(b) makes it mandatory for such an affidavit-in-reply to be filed and served within 14 days from the time the affidavit that is seeks to reply is received. The word "must" as opposed to may is used in the rule, and we interpret that to mean as implying a peremptory mandate as opposed to a mere direction or discretion as the word "may" implies. We equate the meaning of the word "must" as that given to the word "shall", and for that reason the choice of the word "must" in the rule does not create the existence of any discretion or empowers to exercise such discretion.

6. The learned Judge in Han Euu Tiam v Phang Kui Fatt [2000] 1 AMR 690; [1999] 4 CLJ 395 decided at p 400 lines c-e (CLJ) and p 695-696 (AMR) as follows:

   In my judgment, there is merit in this preliminary objection. Clearly there has not been compliance with Order 41 r 1(7) and (8) and Form 78. First, there is no title in the jurat used in all four affidavits. A jurat is a certificate and it is clear from Form 78, by the presence of the words: (Title as in action) appearing at the top of the Form, that the title to the action must be stated at the top of the certificate.

7. The learned Judge in that case arrived at the same result as in MNI without referring to the latter. His Lordship merely referred to Jowitt's Dictionary of English Law, 1977 Edn. In his decision at p.4 (CLJ), his Lordship said:

   Strict compliance with the prescribed format is necessary ... and bearing in mind that Order 41 r 1 (7) and (8) uses the word "must", the jurat as used by the plaintiff is not a valid jurat. The affidavits are defective and unacceptable and the interloccutory application must on that ground fail ...

8. In his submission, counsel for the plaintiff drew my attention to the case of Lai Yoke Ngan v Chin Teck Kwee [1997] 3 AMR 2458; [1997] 2 MLJ 565.

   Under held at p 569 (MLJ), per Mohd Azmi, SCJ:

   (1)

   The discretion available to the court to cure irregularities under Order 2 rule 1(1) Rules of High Court 1980 ("RHC") read together with ss. 69(4) and 101 of Courts of Judicature Act 1964 should be undertaken by the court in the absence of prejudice. Thus defects affecting merit or jurisdiction of court ought not be to cured by exercise of the discretionary power.

   In the same case, obiter, his Lordship, Gopal Sri Ram JCA, said:

   Orders and judgment made or entered by such a court, in private litigation, in exercise of its coercive power upon the default of a party to a suit, even when made or entered in breach of a rule of court or of practice, are merely irregular. They are not nullities. Any proceedings commenced, or any order or judgment obtained, in breach of a rule of court is always subject to the curative power of the court available under Ord 2 r 1 of the RHC. The proper approach is for a court to accept that a breach of a rule of court renders the particular proceeding irregular with a power in the court to excuse the non-compliance. That power is to be exercised judicially having regard to the substantial merits of a case and having particular regard to the interests of justice. Ultimately, it is the objective perception of a court as to where the justice in a particular case lies that determines whether the irregularity should be cured. .....

9. His Lordship Mohd Azmi FCJ, at that time, restricted the court's discretion under Order 2 r 1(1) RHC 1980 to remedying non-compliance with the rules of court that does not cause prejudice. However, defects that affect merit or jurisdiction of the courts ought not to be cured.

   Whilst Gopal Sri Ram, JCA in his obiter statement, not the ratio decidendi of the case, stated that the power of court to excuse contravention must be discharged in the interest of justice. Finally, it is a matter for the court's objective assessment to determine where the justice of a case lies in deciding whether a non-compliance ought to be cured.

10. I understand that MNI is limited to non-compliance with Ord 32 r.13(2)(b) of the RHC 1980. I came to this conclusion after reading the case of Pemunya Kapal MV Brihope v Emmanuel E Okwuosa [1996] 3 AMR 3917 (the "MV Brihope") at 3952:

    Order 32 r13(2) of the RHC was specially enacted to eradicate the rampant abuse of process by malevolent, indolent or unpaid practitioners who had devised a fail-safe method of causing unwarranted delays by piling affidavits at the last minute. The rule is mandatory. (per Mahadev Shanker, JCA)

11. In my view, the case of MV Brihope and the case MNI arrived at the same result. Both decisions are limited to cases concerning Ord 32 r 13(2) RHC 1980. And in my opinion, it is consistent with the decision of his Lordship, Mohd Azmi FCJ, who at that time ruled that the curing of irregularity under Ord 2 r.1(1) RHC 1980 may only be undertaken in the absence of prejudice.

12. In my view, the form used in a court application is like the skin of a seed. If the skin is defective, the seed may still be planted and grow. However, without its skin, the seed will not live.

13. Ord 2 RHC 1980 carries the title "Effect of Non-compliance". Ord 2 r.1(1) RHC 1980 provides as follow:

    ... failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

    Ord 2 r.2(1) says:

    An application to set aside for irregularity any proceedings, ..... or any document, .... shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step ...

    The whole philosophy behind non-compliance has changed by restricting non-compliance to "irregularity". Striking out no longer exist. Nevertheless, an application to set aside for irregularities "shall not be allowed unless it is made within a reasonable time".

14. In the case before me, the objection is about the absence of a title to the jurat. To my mind, in view of the fact that a jurat is not a document that is seperate from the affirmed affidavit, it would be meaningless to attach to the jurat a title as in the action. In other words, a jurat will share the same title as in the affidavit that was filed together with the application. The absence of a title did not prejudice the opposing party or cause injustice to any party. It will not be categorised as having an adverse effect on the merit of the case or on the jurisdiction of the court.

15. Therefore, I dismiss the preliminary objection with costs. 

Cases

Perbadanan Nasional Insurance Sdn Bhd v Pua Lai Ong [1996] 3 AMR 2869; Han Euu Tiam v Phang Kui Fatt [2000] 1 AMR 690; [1999] 4 CLJ 395; Lai Yoke Ngan v Chin Teck Kwee [1997] 3 AMR 2458; [1997] 2 MLJ 565

Legislations

Rules of High Court 1980: Ord.41 r 1(8)

Representation

KL Pang (Cheah Teh & Su) for the plaintiff.

Allan Chan (Peter Goh & Partners) for the defendant.

Notes:-

[a] This is a translation of the decision by Abdul Hamid Said JC delivered in the Malay language.

[b] The objection concerned the validity of the affidavit filed by the plaintiff in support of its application to strike out the defendant's amendment to its statement of defence. The defendant's argument of invalidity stemed from the fact that the plaintiff's affidavit did not have a proper jurat clause as required by the Rules of High Court 1980. The defendant said that the jurat clause in the affidavit did not carry with it a seperate title (of the action).

This decision is also reported at [2000] 3 AMR 2857.