The court ruled that an affidavit can be affirmed before the filing of an originating summons without invalidating the summons, and the hearsay rule does not apply to affidavit evidence.

[1] The plaintiff by his originating summons is seeking inter alia, leave of court to commence an action on behalf of the defendant by way of a writ of summons and statement of claim against Dato' Seri S Samy Vellu a/l Sangalimuthu and 8 Others under ss 181A, 181B and 181E of the Companies Act 1965 and O 5 r 4, O 7, O 28 and O 92 r 4 of the Rules of the High 1980 (RHC).

[2] In support of his originating summons, the plaintiff filed and served his affidavit in support (encl. 2) on the defendant on 12 January 2010.

[3] On 25 February 2010 the defendant filed its summons in chambers (encl 12) under O 41 r 6 RHC and/or the inherent jurisdiction of the court for an order to expunge paras 27, 28 to 28.20, 29 to 29.8, 30, 36 to 38 and 51 to 54 (the said paragraphs) appearing in the plaintiff's affidavit (encl 2).

[4] The defendant did not file a separate affidavit in support of its summons in chambers, but relied on matters stated in another affidavit affirmed by Dato' Seri Samy Vellu a/l Sangalimuthu on 24 February 2010 (encl 6) which can be summarized as follows:

(a) The averments made in the said paragraphs to be expunged contravene the rule against hearsay and are contrary to O 41 r 5(1) RHC;

(b) The averments are subjudice as Kuala Lumpur High court Civil Suit No. D22-1189-2009 is pending trial before another court;

(c) The averments are prejudicial to the defendant and do not add any probative value to the issues before the court.

[5] Before the hearing of the summons in chambers, counsel for the defendant raised a preliminary objection against the competency of the originating summons. Counsel contended that the originating summons ought to be struck out as the plaintiff's affidavit in support (encl 2) of the originating summons was affirmed prior to the filing of the originating summons. Enclosure 2 was affirmed one day before the filing of the originating summons.

[6] Counsel for the defendant relied on the decision in the High court case of Arab Malaysian Finance Bhd v. Serajudin Mohd Ismail & Anor, 1999 MarsdenLR 1584 which stated that if an affidavit is affirmed before the filing of an application, the affidavit cannot be said to have been affirmed in a cause or matter because at the time of filing the affidavit, the cause or matter did not yet exist. In that case the affidavit was excluded by the court as it was affirmed a week before the filing of the originating summons which it purported to support.

[7] In his written submission, counsel for the defendant submitted that if the preliminary objection is upheld and encl 2 is excluded the originating summons stands unsupported and must be dismissed in limine. Counsel then proposed that to remedy the situation, the plaintiff should file a further affidavit to adopt and verify the contents of his affidavit (encl 2). The reason for the proposal by counsel was so that the plaintiff cannot escape liability in the event action is taken against him on matters stated in his affidavit, for example contempt of court, on the ground that his affidavit was not properly filed or regularly before the court as at the time of filing the affidavit, the originating summons was not yet in existence.

I dismissed the defendant's preliminary objection and held that the affidavit (encl 2) was properly filed before the court for the following reasons:

(a) I wholly disagree with the contention of counsel for the defendant and his reliance on the rationale in the decision in Arab Malaysian Finance Bhd (supra).

(b) There is nothing in O 41 RHC which requires an affidavit to be filed after an application which sets out the cause or matter has been filed.

(c) O 41 r 9(