James Foong J:

Introduction

Enclosure 5 is an application of the plaintiff for summary judgment under O. 81 Rules of High Court (RHC).

The facts of this case is simply this: On 14 September 1998 the plaintiff agreed under a sale and purchase agreement (the S&P agreement) to purchase two industrial lots (the property) in an industrial complex at Bandar Petaling Jaya from the 1st defendant for a sum of RM400,000. Subsequent to the execution of the S&P agreement the plaintiff paid the full purchase price according to the terms and conditions wherein, part of it (RM60,000) was deposited with the 2nd defendant who is a solicitor for the 1st defendant as stakeholder. In consequence of this, relevant deeds of assignment of the property (there being no individual document of title issued) were executed by the parties. They are yet, however, to be perfected with the consent of the developer. The delay in perfecting the documentation was due to withholding of these documents by the defendants for reason that there is a dispute over two parking bays in the industrial complex. According to the 1st defendant the sale of the property does not include these car parks whilst the plaintiff is of a different view. Unable to resolve this dispute, the plaintiff terminated the S&P agreement insisting that the 1st defendant did not perform her part of the obligation in perfecting the deeds of assignment. This was soon followed by the filing of a writ against the defendants seeking a declaration that the S&P agreement is terminated and claiming the return of the purchase price with punitive damages. Enclosure 5 is a sequence of this process.

Preliminary Objection

At the outset of the hearing of encl. 5, 1st defendant counsel raised a preliminary objection that M/s Cheah, Teh & Su (CTS), the firm of advocates and solicitors acting for the plaintiff, should be disqualified from further representing the plaintiff in this case. His ground is that CTS were solicitors for the plaintiff in drawing up the S&P agreement and were actively advocating that the car parking bays were appurtenant to the property. Further, there is a possibility that CTS may be brought in as a party to this proceedings by the defendants or called upon by them to testify. In view of this, CTS has breached ss. 3, 4, 5, 27, 28(a) and 29 of the Legal Profession (Practice and Etiquette) Rules 1978 (the Etiquette Rules).

Miss Khoo, joined subsequently by Mr. Su, of CTS argued strenuously that the facts of this case do not warrant the disqualification of their firm to act for the plaintiff. In any event both Miss Khoo and Mr. Su declared that they were not solicitors involved in this property transaction and thus, will not be called to testify as witnesses. Further, they claimed that the defendants have acknowledged and recognised CTS's role as advocates and solicitors in this case by making no prior protestation and serving on CTS interlocutory applications.

Analysis

It is a well-established principle that lawyers should not act as counsel and witnesses in the same proceedings. The reason, as expounded by Beaumont CJ in Emperor v. Dadu Ramu AIR [1939] Bom 150, is: "An advocate cannot cross-examine himself, nor can he usefully address the court as to the credibility of his own testimony, and a court may feel that justice will not be done if the advocate continues to appear." This rule is expressly accepted by the Federal Court in Wong Sin Chong & Anor. V. Bhagwan Singh & Anor. [1993] 4 CLJ 345. But in the list of authorities combed over by Justice Malik Ishak in Syarikat Pengangkutan Sakti Sdn Bhd v. Tan Joo Khing t/a Bengkel Sen Tak [1997] 3 CLJ 754; [1997] 3 AMR 2947 there are exceptions to this rule. It does not apply if the testimony of the advocate and solicitor so acting relates to matters which are formal and non - contentious such as - identification, attestation, custody of documents and the like. In fact the Etiquette Rules - s. 28(a) only prohibits such advocate an