Hishamudin Yunus J:

This originating summons (encl. 4) is an application by the plaintiff for an order that the defendant do deliver to him the issue document of title of a piece of land, in respect of which the plaintiff is a co-proprietor, so as to enable him to transfer his share in the land to his son.

This application is supported by an affidavit (encl. 3) affirmed by one Hong Tuai King on 8 February 1999. This supporting affidavit together with the originating summons (encl. 4) was filed in court 1 March 1999.

At the commencement of the hearing of this originating summons, the learned counsel for the defendant, Encik Richard Bong, raises a preliminary objection. The objection taken is against the supporting affidavit (encl. 3). It is contended by Encik Bong that the affidavit is defective and should be disallowed. The learned counsel argues that the affidavit is defective because it was affirmed before the originating summons was filed. According to Encik Bong, the supporting affidavit could only be affirmed after the originating summons has been filed in court.

Encik Bong relies on O. 41 r. 1(1) and (2) of the Rules of the High Court ('RHC'), which stipulates -

(1) Subject to paras. (2) and (3), every affidavit sworn in a cause or matter must be entitled in that cause or matter.

(2) Where a cause or matter is entitled in more than one matter, it shall be sufficient to state the first matter followed by the words 'and other matters', and where a cause or matter is entitled in matter or matters and between parties, that part of the title which consists of the matter or matters may be omitted.

Ban Hin Lee Bank v. Pang Lai Hin [1999] 2 MLJ 234 was cited in support of the contention. In this case cited, the supporting affidavit was affirmed on 22 June whereas the originating summons was filed on 24 June. Kamalanathan Ratnam J was of the view that the affidavit should be disallowed. The learned judge based his decision on a previous decision of his in Arab Malaysian Finance Bhd V. Serajudin Mohd Ismail & Anor [1999] 6 CLJ 405 . In the latter case, the affidavit was affirmed one week before the originating summons was filed. The learned judge, referring to O. 41 r. 1 of the RHC, disallowed the affidavit on the grounds that (to quote what was said, at p. 240 E-F):

In other words, an affidavit affirmed in a cause or matter must be intituled in that cause or matter.

For a cause or matter to be properly entitled or intituled, the case number relating to that cause or matter is vital factor that must be present ... the said affidavit cannot be said to have been affirmed in a cause or matter because, properly speaking, there was no cause or matter that had been registered at the Registry.

The learned judge went on to hold -

... in the present case, where the affidavit forms the evidence on which the application is to be launched, and if the affidavit has not been affirmed in an existing cause or matter, then the filing of such an affidavit cannot be treated as an irregularity that can be cured.

In my view, it is a nullity as it supports a non-existent cause or matter.

Encik KC Wai for the plaintiff, on the other hand, maintains that the supporting affidavit is proper, although it was affirmed earlier than the filing of the originating summons. He maintains that what is important is that the supporting affidavit should be filed together with the originating summons as was duly done in the present case. In support of his argument, he cites Hongkong Bank (M) Bhd v. Nor Harizan bte Mohd Ali [1999] 6 CLJ 466; [1995] 5 MLJ 629. There, Azhar J took a view different from that of Kamalanathan Ratnam J in Ban Hin Lee Bank. The learned judge held:

Swearing of an affidavit that bears no registration number of the case as the originating process has not begun does not violate any provision of the law as it stands.

To hold otherwise would undoubtedly result in grave hardship and unnecessary inconvenience to the parties conc