JUDGMENT

MALAYSIA

IN THE HIGH COURT IN SABAH AND SARAWAK AT SIBU

SUIT NO. 20-2242 OF 1997

Between

Government of Malaysia . . . Plaintiff

And

Malarang Lumber Sdn. Bhd. ... Defendant

BEFORE THE HONOURABLE JUSTICE DATO' TEE AH SING IN CHAMBERS

JUDGMENT

The plaintiff claimed, by way of a especially endorsed writ of summons, a sum of RMl,469,619.85 being the alleged amount of tax, the ten percent and five percent increases for the years of assessment 1985 additional, 1987 additional, 1988 additional, 1989 additional, 1990, 1992 additional, 1993 additional, 1994 additional, 1993 additional, 1994 additional, 1995 additional and 1996 under the provisions of the Income Tax Act, 1967.

The writ of summons was issued on 1 October, 1997.

The writ of summons together with the statement of claim was served on the defendant on 8 October, 1997. The memorandum of appearance was filed on 13 October, 1997. The defence was filed on 24 October, 1997 and served on the plaintiff on 30 October 1997.

On 6 November, 1997 the plaintiff filed an application by summons in chamber for summary judgment under Order 14 of the Rules of the High COURT ("the RHC').

The learned counsel for the defendant raised a preliminary objection. He submitted that an Order 14 application has to be made before defence was served provided that it was made after service of defence, the applicant must explain the delay in applying. In this case there is no explanation given for the delay. On this ground alone the application should be dismissed with costs. In support the following cases were cited, namely:

(1) Loo Sze Kin v. Cheong Choy Teik (1997) 4 MLJ 537;

(2) Standard Chartered Bank Malaysia Bhd. v. Eng Song Huat (1996) 1 MLJ 446;

(3) Ng Hee Thoong & Anor. v. Public Bank Bhd. (1995) 1 MLJ 281.

Any explanation for the delay has to be made under an affidavit. An oral statement from the Bar cannot be accepted. (See Loo Sze Kin v. Cheong Choy Teik (1997) 4 MLJ 537 and Ng Hee Thoong & Anor. v. Public Bank Bhd. (1995) 1 MLJ 281).

Mr. Richard Foo for the plaintiff submitted from the Bar that the delay in filing this application was due to the fact that they needed time to trace the record of the case.

Since the explanation for the delay was given from the Bar and not by way of affidavit the explanation cannot be accepted. In Ng Hee Thoong & Anor. v. Public Bank Bhd. (1995) 1 MLJ 281 His Lordship Gopal Sri Pam JCA at page 287 said:

....... The only reference to the delay point is to be found in the address of counsel for the respondent in the COURT below and the explanation is in reality that of counsel and not of his client under oath. It is a principle fundamental to our system of adversarial litigation that evidence upon a matter must be given on oath. The practice of counsel giving evidence from the Bar, as was done in this case, is to be deprecated. To act as the learned judicial commissioner did in this case, is to ignore the very basic tenets of the law of evidence that is applied by our courts. Here was a positive assertion on oath by the appellants that there had been inordinate delay. The proper way in which that was to be met was by way of an affidavit in answer, explaining the delay. Once this is done, then it is up to the judicial arbiter to accept or reject the explanation proffered. But to ride roughshod over such an important point, as was done here, does little to advance the course of justice according to the law."

However, I have still to decide whether the issue of delay when no explanation is given for the delay in making an Order 14 application is fatal to the plaintiff's application.

I wish to emphasis that I was aware of the case of Perkapalan Shamelin Jaya Sdn. Bhd. & Anor. v. Alpine Bulk Transport New York (1997) 3 MLJ 818 before the plaintiff faxed a copy of the said case (reported in (1998) 1 CLJ 424) on 12 March 1998 at 1420 hours to the Senior Assistant Registrar.

In Perkapalan Shamelin Jaya Bhd. & Anor. v.Alpine Bulk Transport New York (1997) 3 MLJ 818 Lordship Gopal Sri Ram J