JUDGMENT

1. There are three applications set down for hearing this morning. An Originating Summons dated 29.6.94 (encl. 2) made under O. 7 r.2 of the Rules of the High Court 1980 (hereinafter referred to as "RHC"), for an order for sale under Section 148(2)(c) of the Sarawak Land Code (Cap. 81), of the defendant's land charged to the plaintiff. The application was supported by the affidavit of Josephine Chin affirmed on 13th June, 1994. [2]

2. The second is a Summons In Chambers dated 17.3.95 (encl. 19) made under O. 18 r.19 and O. 92 r. 4 RHC, of the defendant for an order to strike out the plaintiff's Originating Summons on the following grounds:-

a) it discloses no reasonable cause of action;

b) it is scandalous, frivolous or vexatious; or

c) it is an abuse of the process of court.

The application was supported by the affidavit of Goh Chua Kee affirmed on 17.3.95, and opposed by the affidavit in opposition of Josephine Chin affirmed on 18.10.95 (encl. 27). At the hearing of the Summons In Chambers on 24.10.95 the defendant raised a preliminary objection as to the admissibility of the affidavit in opposition, and the trial judge ruled that the said affidavit was inadmissible and rejected it. The plaintiff did not appeal against the ruling.

3. At today's hearing, it is agreed that the third application, Summons In Chambers dated 16.11.95 (encl. 38), be heard first. In this application the plaintiff applied to strike out the defendant's Summons In Chambers (encl. 19) made under O. 41 rr.5 and 6 and O. 29 r. 4 RHC and the affidavit of Goh Chua Kee affirmed on 17.3.95 in support of the summons. This application was supported by the affidavit of Josephine Chin affirmed on 13.11.95. At the onset of the hearing, the plaintiff raised a preliminary objection that the affidavit of Josephine Chin affirmed on 13.11.95 in support of the application is in para materia with the affidavit in opposition of Josephine Chin affirmed on 18.10.95, the impugned affidavit. Learned counsel for the defendant, Mr. Ernest Chua, in a written submission contended that the affidavit of Josephine Chin affirmed on 13.11.95 in support of this application is inadmissible on the ground of res judicata. He contended further that having failed to have [3] the impugned affidavit admitted under O. 32 r. 2 RHC, the plaintiff cannot circumvent the Rules by bringing it this time around under another rule, i.e. O. 41 rr. 5 and 6 RHC. He cited Kassim bin Sulong v. Guthrie Estates Holdings (1993) 3 MLJ 303; MUI Bank Alkner Investments Pte Ltd (1990) 3 MLJ 385; Ramachandran v. Perwira Habib Bank Malaysia Bhd & Anor (page 900, Mallal's Digest 4th Edition, 1994 Reissue); Tengku Azmi bin Tengku Yusoff & Anor. v. Tengku Ahmad bin Tengku Abdul Ghaffar & Ors (1982) 1 MLJ 78; Mensa Mercantile (Far East) Pte Ltd v Eikobina (M) Sdn Bhd (1991) 2 MLJ 258; and Superintendent of Pudu Prison & Ors v Sim Kie Chon (1986) 1 MLJ 494 to support his contentions.

4. On close comparison both affidavits of Josephine Chin, one affirmed on 18.10.95 and the other affirmed on 13.11.95; they are identical in every way except perhaps the numbering of the paragraphs which varies slightly; paragraph 2, the last sentence(s) in paragraphs 8, 9 and 10 of the impugned affidavit, omitted. The two affidavits are reproduced below:-

"MALAYSIA

IN THE HIGH COURT OF BORNEO AT KUCHING

ORIGINATING SUMMONS NO.KG. 122 OF 1994/II

In The Matter of Memorandum of Charge Instrument No. L. 3922/90, registered at the Kuching Land Registry Office on the 2nd day of April 1990

And

In The Matter of an Application for an Order for Sale under Section 148(2) of the Land Code (Cap. 81)

BETWEEN

NEWTON ENGINEERING &

MANUFACTURING (PTE) LTD

No. 246 MacPherson Road,

02-02 Betime Building

Singapore .. Plaintiff [4]

AND

SAM AIK INDUSTRIES SENDIRIAN BERHAD

No. 132, 1 1/2th Mile,

Jalan Tun Haji Openg,

93000 Kuching,

Sarawak .. Defendant

AFFIDAVIT-IN-OPPOSITION

I, JOSEPHINE CHIN (BIC.K. 711433) of 1005, Lower Delta Road, #13-03 Teresa Vill