RK Nathan J:

The plaintiff won the first prize of RM2,000,000 in the Pan Malaysian Big Sweep Sdn Bhd. He sought the assistance of his brother, Gan Chin Hock, to collect the said prize money and to deposit a sum of RM1.5 million in the name of his daughter, Gan Chye Thing, and for the remaining RM500,000 to be distributed in equal shares amongst his brothers and sisters. The plaintiff now contends that his brother has cheated him of the said sum and that having withdrawn the said sum his brother has absconded with the RM2,000,000. He sued his brother and has obtained an in default judgment against him.

Case For The Plaintiff

The plaintiff contends that the defendant who is his brother's wife, and his brother have utilised part of that money to pay for the purchase of a piece of land held under Geran No. H.S.(D) 10825, P.T. Lot No. 249, Mukim Ampang, Daerah Kuala Lumpur, with a 4-storey shop house therein and wherein a restaurant known as "Ruong Thai Restaurant" was carrying on business, with the defendant as the sole proprietor. The plaintiff entered a private caveat (No. Pers 4202/96) on the said land on 6 May 1996. The plaintiff has also obtained an order from this court on 3 March 1997 for the extension of the said caveat until the hearing and disposal of this originating summons. The plaintiff had served the draft order on the Registrar on 3 March 1997 but the said caveat was removed at about 9.45 a.m. on 3 March 97. However, on 18 April 1998 the plaintiff obtained an order from this court which in essence was an order that the removal or cancellation of the private caveat 4202/96 by the land administrator on 3 March 1997, be expunged from the Land Register and that the said caveat be re-instated in the said Land Registry until this originating summons and Civil Suit No. S4-22-04-95 be heard. The defendant has appealed against that decision of mine.

The Application

This originating summons prayed, inter alia, for the following orders, namely:

(a) That the said caveat 4202/96 be not set aside until the hearing of this action.

(b) That the said caveat be not set aside until the disposal of an action which the plaintiff would be filing against this defendant.

In effect this application is primarily for the extension of the private caveat pursuant to s. 326 of the National Land Code (NLC).

Defendant's Contention

In support of his application the plaintiff filed an affidavit encl. 2 and two other affidavits. In her reply the defendant raised objections to the said 3 affidavits and contended that they were defective in that:

(1) The affidavits were not properly intituled.

(2) That there was no jurat.

(3) That they were not affirmed before the commissioner.

After I had given directions for written submissions with the consent of parties, the defendant submitted that not only did the plaintiff file the written submission but also filed 3 fresh affidavits in a purported attempt to rectify the errors as pointed out by the defendant in respect of the plaintiff's 3 affidavits filed earlier. The contents of the latest 3 affidavits were identical to that of the earlier 3 filed. The defendant now takes the stand that the plaintiff ought to have obtained leave of the court before filing these 3 fresh affidavits.

The Plaintiff's Contention

The plaintiff argued that he had acted bona fide and with no intention of abusing the process of the court. He argued that an application for leave after directions for written submissions had been given, was not a requirement pursuant to the Rules of the High Court 1980 (the RHC). In any event, he argued that, if the defendant had wanted to file a reply she could well have done so, but instead, having chosen not to do so, she cannot now complain.

Court's Findings

Before I proceed to consider the law relating to this case, I have to consider the issues raised by the defendant in relation to the affidavits filed.

Non Intitulement Of The Affidavits

Order 41 r. 1(1) of the RHC provides