Judgment

Vincent KK Ng J

PREAMBLE

1. On June 14, 2002 the learned senior assistant registrar (SAR) allowed the preliminary objections raised by the sixth defendant's solicitor and struck of with costs the plaintiffs application for summary judgment in Encl. 8.

2. Hence this appeal (Encl.61) before me today.

3. Without going into much detail, suffice to say, the plaintiffs claim against the sixth defendant was for the return of US$617,756.37, being monies received from the plaintiffs customer and wrongfully retained by the sixth defendant and a sum of US$501.37 for goods sold and delivered.

4. Although at the onset, the sixth defendant raised seven (7) preliminary objections to defeat the plaintiffs application for summary judgment, for the purposes of this appeal, only five (5) of them merit discussion, the total effect of which, in my opinion justified the learned SAR's decision.

   FIRST PRELIMINARY OBJECTION — DELAY

5. The following facts are undisputed. The plaintiff commenced this action against the defendants on December 31, 1998. The sixth defendant entered their appearance and filed their defence by March 4, 1999. The plaintiff only took out their summary judgment application 3 months after the sixth defendant entered appearance and 2 months after the filing of the defence.

6. The plaintiffs explanation for the delay was contained in their supporting affidavits (exh DL1, Encl 8A and Encls. 8b & 44A). The plaintiff needed time, not only to instruct their solicitors and forward documents but also to coordinate and prepare the supporting affidavits as the plaintiff was based in the United States of America (USA) whilst the deponents of the supporting affidavits were in both USA and Australia. In light of these circumstances, the plaintiff sought to persuade this court, that the delay was not inordinate. I am mindful that delay in recourse to a summary judgment application is not per se fatal.

7. Aside from the fact that the sixth defendant was disputing the admissibility of the supporting affidavits, the sixth defendant maintained that the explanation on the delay forwarded by the plaintiff was unacceptable.

8. On the delay, I am in agreement with the sixth defendant, as I am bound to follow the decision of the Supreme Court in Krishnamurthi v Malayan Finance Corporation Bhd [1986] 2 MLJ 134. Having commenced the suit against the defendants, presumably with instructions to apply for summary judgment supported by affidavits to be secured from USA, the plaintiff should have prepared all the relevant documents for the expeditious conduct of their case.

9. This is of material consideration in the light of the present day litigation culture which enjoins speedy disposal of cases. The plaintiff had failed to discharge the onus on them to show that the delay was justified under the circumstances of their case. (See McLardy v Slateum (1980) 24 QBD 504; K&N Kenaga Sdn Bhd v Latchman Dass Shewaram [1986] 2 CLJ 136; Standard Chartered Bank (M) Bhd v Eng Song Huat [1993] 1 AMR 726; [1996] 1 MLJ 446 and Perkapalan Shamelin Jaya Sdn Bhd v Alpine Bulk Transport New York [1998] 1 AMR 258; [1997] 3 MLJ 818, CA)

   SECOND PRELIMINARY OBJECTION — ENGLISH AFFIDAVITS

10. What is more pivotal to my decision is the sixth defendant's objection to the admissibility of all the affidavits affirmed by David Lee Kim Meng (Lee), the plaintiffs solicitor, (Encls. 8A, 9, 10, 23, 26, 33C, 35 and 44) and the affidavits of Evert Alan Butters (Butters) exhibited in the former's affidavits (exh 'DL1' of Encl.8A, exh 'DL2' of Encl.9, exh 'DL2' of Encl.10, exh 'DLA' of Encl.23, exh 'DL4 of Encl.26, exh 'DL5' of Encl.33C, exh 'DL6' of Encl.35 and exh 'DLA' of Encl.44).

11. All of Butters' affidavits were affirmed in English with an unaffirmed copy of the same in Bahasa Malaysia attached thereto. These affidavits were annexed to Lee's affidavits as exhibits.

12. The plaintiffs strategy in adducing Butters' affidavits as exhibits seemed to be two pronged.

    • Firstly, through Lee's affidavits, they explained that neither Butters nor the notary public, before whom he affirmed the affidavits, understood Bahasa Malaysia. Hence, the need to file Butters' affidavits in English and the plaintiff — quite cleverly, they thought — in compliance with Ord. 41 r 10(2) of the Rules of the High Court 1980 (RHC), paid the praecipe fee for all of Butters' affidavits.

    • Secondly, the plaintiff sought to rely on the proviso to Ord. 92 r 1 of the RHC which is as follows:

    Provided that any document in the English language may be used as an exhibit, with or without a translation thereof in the national language.

13. Ingenious as the plaintiffs approach was, I found it flawed and misconceived for several reasons.

14. Lee's affidavits served no greater purpose other than to circumvent Ord. 92 r 1 of the RHC which provided that any document required for use in pursuance of the RHC shall be in Bahasa Malaysia. (See Syarikat Telekom Malaysia Bhd v Business Chinese Directory Sdn Bhd [1993] 2 AMR 2154; [1994] 2 MLJ 420 and s 8 of the National Language Act 1965/6.)

15. Ord. 92 r 1 of the RHC is a mandatory provision. The proper way for the plaintiff to adduce Butters' affidavits would have been to:

    1. have the affidavits affirmed in Bahasa Malaysia before a Malaysian consular officer, who would have been able to explain the contents of the said affidavits to Butters; pursuant to Ord. 41 r 12 of the RHC; or

    2. have the affidavits affirmed in English with the Bahasa Malaysia translation of the same annexed to an affidavit by a translator verifying the translation.

16. The RHC has no provision that allows affidavits to be adduced in the form of exhibits, and neither is there any provision to permit a plaintiff to move the court in an Ord. 14 application through exhibits in support of the application, albeit clothed as affidavits. To allow such affidavits to be read in support of the plaintiffs summary judgment application would run counter to the grain of the pertaining provision itself.

17. It is trite law that a summary Judgment application must be supported by an affidavit, verifying the facts on which the claim was based. As such, it should not be allowed to be converted from a contest of affidavits to a contest of exhibits.

    THIRD PRELIMINARY OBJECTION —  JURAT

18. The sixth defendant also maintained that the plaintiffs affidavits, namely, exh 'DL1' of Encl.8A, Encl.8a, Encl.28 and exh 'DL5 averment.

19. I had occasion to express the following view in respect of this issue in Voon Mow Chen v Menteri Dalam Negeri [1993] 2 AMR 38 2199 at 2204:

    It is this court's view that the reason that the jurat of an affidavit should not begin and end on a fresh page but rather should immediately follow the end of a substantive or spill over of the last substantive averment of the deposition, is in order to ensure that there is sufficient indication that the jurat relates directly to the deposition. This is to obviate the possibility of abuse by any party ...

20. I find no reason to change that view. The onus was on the plaintiff to ensure the authenticity of the affidavits before any dispute arose, and this they failed to do.

21. Though, in respect of the aforesaid defect in form or format it is open to the plaintiff to apply for leave of the court under Ord. 41 r 4 to use such defective affidavit in evidence, yet the onus rests on them to make out a cogent case for such leave, which could be granted, depending on the nature and number of and the reasons for such non compliance of form or format. In my opinion, r 4 of this provision may not be invoked to cure a defect or error in the substantive averments of the affidavit which go to the root of the affidavit, as this rule does not empower the court with any such discretion.

22. The proper recourse in such cases is to apply for leave (if time has expired) under Ord. 3 r 5(1) to file a further or corrective affidavit, as recommended in Perbadanan Nasional Insurance Bhd v Pua Lai Ong [1996] 3 AMR 2869; [1996] 3 MLJ 85, CA.

    FOURTH PRELIMINARY OBJECTION — RESIDENTIAL ADDRESS

23. The sixth defendant also drew the court's attention to Encls. 8A, 8b and exh 'DL1' of Encl.8A; that is, the first supporting affidavits for the plaintiffs summary judgment application affirmed by Lee, Bruce Moore (Moore) and Butters respectively.

24. The deponents failed to state their residential addresses as required under Ord. 41 r1 (4) of the RHC. This requirement is mandatory and the plaintiffs submission that the deponents had stated their residential addresses in subsequent affidavits did not find favour with me. This defect delivers a fatal blow to the legal integrity of the affidavits, considering that Lee's affidavit was being used as a vehicle to adduce Butters' affidavit. (See Perbadanan Nasional Insurance Sdn Bhd v Pua Lai Ong, supra; Zamrud Properties Sdn Bhd v Pang Mooi Gaid [1999] 5 MLJ 180 and Ngoi Thiam Who v CTOS Sdn Bhd [2001] 4 AMR 4564; [2001] 4 MLJ 510).

    FIFTH PRELIMINARY OBJECTION — DEFECT IN SUBSTANCE

25. More importantly, defects of substance and not of form only were also detected. The plaintiffs solicitor filed several affidavits, affirmed on May 5, 1999 (Encl.8A), June 24, 1999 (Encl.9), October 1, 1999 (Encl.26), December 21, 1999 (Encl.33C) respectively and another affidavit which bore no affirmation date but was filed on July 21, 1999 (Encl.10). The date in paragraph 3 of Encl.8A was rubber stamped as May 5, 1999 without being endorsed with any initials.

26. Further, the dates in paragraphs 4 and 19 of exh 'DL1' (affidavit of Butters) of Encl.8A were also rubber stamped April 30, 1999 with neither the initials of the deponent nor the notary public appended thereto. Similarly, the date in paragraph 4 of exh 'DL5' (affidavit of Butters) of Encl.33C had been amended by hand without such endorsements.

27. I am also mindful of another affidavit sworn by Moore, filed on October 25, 1999. This affidavit bears an illegal amendment and appeared to have been tampered with, as the figure 5 in the date 25th was altered by hand but was not initialed by the deponent and the commissioner for oaths, as is required. This being so, even if an application had been made for leave to use this affidavit under Ord. 41 r 4 of the RHC it should not be allowed by the court due to the gravity of its culpability and the fact that it is a defect in substance rather than form. Thus, it may be observed that a truly kaleidoscopic patchwork of errors has occurred in the getting up and management of the application for summary judgment.

    OTHER CONSIDERATION

28. The fact that the plaintiff-went to the trouble of affirming a corrective affidavit (Encl.44A), clearly showed that the plaintiff had sufficient notice of the preliminary objections raised by the sixth defendant. In light of the number of preliminary objections raised by the sixth defendant, to say the least, the plaintiffs failure to make any application under Ord. 41 r 4 of the RHC, for leave of the court to use the defective affidavits (except in passing, as an afterthought, in the written submission before me) or to apply for an extension of time under Ord. 3 r 5(1) of the RHC, to file further or corrective affidavits, was a glaring omission of recognised procedures. Without such application, this court is not empowered to cure the defects, particularly at its own instance. (See Perbadanan Nasional Insurance Sdn Bhd v Pua Lai Ong [1996] 3 AMR 2869; [1996] 3 MLJ 85, CA; Re CHS [1997] 3 MLJ 152 and Banque Nationale De Paris v Wong Hai Ong [2000] 5 MLJ 156.)

29. The plaintiff could not rely on Ord.1A or Ord.2 r 3 of the RHC (Amendment) 2002 which came into effect on May 16,2002 as the plaintiffs defects in form or format predated the amendments. (See Sim Seoh Beng v Koperasi Tunas Muda Sungai Ara Bhd [1995] 1 AMR 501; [1995] 1 MLJ 292, CA.)

    CONCLUSION

30. The end result of the sixth defendant's various challenges was not favourable to the plaintiff. On its own, perhaps some of the defects in form or format pointed out by the sixth defendant could be explained away or treated as an irregularity. But when the same were considered as a whole, they had the cumulative fatal effect on the plaintiffs summary judgment application as they have occasioned prejudice to the due administration of justice.

31. I reiterate the view I expressed in Othman Puteh v Ku Azman Ku Bahan [2002] 7 CLJ 64 at 67:

    I am conscious of the approach that I should take in a preliminary objection on matters of form or procedure. Such preliminary objections should not normally be held to prevail over the merits of the case unless there is blatant infringement of the rules and such infringement has occasioned prejudice to the adverse party or to the due administration of justice ... if the infringement is significant and the culpability is of a high degree, the court cannot overlook such conduct without also condoning it and thereby encouraging non-observance and total disregard of clearly expressed rules in general which are meant to be observed. [Emphasis added]

    (See Ratnam v Cumarasamy [1965] 1 MLJ 228; Arbuthnot Latham Bank Ltd v Trafalgar Holding Ltd, Chishty Coveney & Co v Raja [1997] TLR 698 and Public Bank Bhd v Heng Weng Chin [2002] 6 MLJ 49.)

32. The crux of my ratiocination is as follows.

33. The plaintiff had attempted to use what were essentially exhibits, as affidavits in support of their application, which is not permissible under the RHC. The sole affidavit tendered in support of the Ord. 14 application was the affidavit sworn by the lawyer, albeit the 3 affidavits of the plaintiff sworn in English were put in as exhibits but purported to be affidavits in support.

34. If the 3 exhibits were intended to be used as affidavits they were invalid as affidavits, for being made in breach of Ord. 92 r 1 of the RHC. Yet, the plaintiff had sought to use such exhibits as affidavits in support of the Ord. 14 application. The only proper affidavit filed in connection with the Ord. 14 application by the plaintiff is the affidavit by Moore, the managing director in Australia, affirmed in Malaysia on November 23, 1999 (Encl.30); but this affidavit was not an affidavit in support of the application for summary judgment but merely an affidavit in reply to one or two points raised by the sixth defendant in their affidavit affirmed on November 9, 1999.

35. After careful consideration of all the affidavits and submissions put in by both sides and for all the above various and variegated reasons, I decided to dismiss the plaintiffs appeal in Encl.61 with costs.

36. A final observation which I wish to make is that, to my amazement, against its own vital interests, the plaintiff has now filed an appeal to the Court of Appeal against this eminently interim decision, which merely involves affidavits to be used in an Ord. 14 application. The plaintiff could not have been unmindful, if well advised, that a very substantial delay in the prosecution of its claim would result, considering that that appeal would, after considerable time lapse, only resolve the question as to whether the said impugned affidavits could be used in the Ord. 14 application. Then, should the plaintiffs appeal be allowed by the Court of Appeal and summary judgment is also allowed by the SAR, an appeal by the sixth defendant to the judge in chambers is envisaged, and (if dismissed) yet another appeal to the Court of Appeal would follow. This, surely, would work to the unexpected benefit and utter joy of the sixth defendant. It is rather, a strange situation, where a defendant is continually happy to be consistently unsuccessful on interlocutories, since the legislative amendment on the word 'decision' has yet to be implemented in civil proceedings. The nation would not survive as a financial entity if the administration of justice grinds to a halt through being clogged up by the sheer weight of unnecessary and frivolous appeals. Thus, the right of every subject to have recourse to the courts must be placed in the scales with the legitimate expectation that the nation shall survive economically for the subject.

Cases

Arbuthnot Latham Bank Ltd v Trafalgar Holding Ltd, Chishty Coveney & Co v Raja [1997] TLR 698; Banque Nationale De Paris v Wong Hai Ong [2000] 5 MLJ 156, HC; CHS, Re [1997] 3 MLJ 152, HC; K&N Kenaga Sdn Bhd v Latchman Dass Shewaram [1986] 2 CLJ 136; Krishnamurthi v Malayan Finance Corporation Bhd [1986] 2 MLJ 134, SC; McLardy v Slateum (1980) 24 QBD 504; Ngoi Thiam Who v CTOS Sdn Bhd [2001] 4 AMR 4564; [2001] 4 MLJ 510, HC; Othman Puteh v Ku Azman Ku Bahari [2002] 7 CLJ 64, HC; Perbadanan Nasional Insurance Sdn Bhd v Pua Lai Ong [1996] 3 AMR 2869; [1996] 3 MLJ 85, CA; Perkapalan Shamelin Jaya Sdn Bhd v Alpine Bulk Transport New York [1998] 1 AMR 258; [1997] 3 MLJ 818, CA; Public Bank Bhd v Heng Weng Chin [2002] 6 MLJ 49, HC; Ratnam v Cumarasamy [1965] 1 MLJ 228; Sim Seoh Beng v Koperasi Tunas Muda Sungai Ara Bhd [1995] 1 AMR 501; [1995] 1 MLJ 292, CA; Standard Chartered Bank (M) Bhd v Eng Song Huat [1996] 1 AMR 726; [1996] 1 MLJ 446, HC; Syarikat Telekom Malaysia Bhd v Business Chinese Directory Sdn Bhd [1993] 2 AMR 2154; [1994] 2 MLJ 420, HC; Voon Mow Chen v Menteri Dalam Negeri [1993] 2 AMR 38 2199, HC; Zamrud Properties Sdn Bhd v Pang Mooi Gaid [1999] 5 MLJ 180, HC

Legislations

National Language Act 1965/6: s.8

Rules of the High Court 1980: Ord.3 r 5(1), Ord.14, Ord.41 rr 1 (4), 4, 10(2), 12, Ord.92 r 1

Rules of the High Court (Amendment) 2002: Ord.1A, Ord.2 r 3

Representations

Haslina Hassan (Zaid lbrahim & Co) for appellant/plaintiff

Richard Lee & PG Lake (Cheah Teh & Su) for respondent/sixth defendant

Notes:-

This decision is also reported at [2003] 3 AMR 555.