RK Nathan J:

The plaintiff loaned a sum of RM500,000 to one Danar Engineering Sdn Bhd (the borrower). The said loan was secured by a third party charge on the defendants' property known as H.S.(D)5114 Lot No. 29696, Mukim of Kuala Lumpur (the property). The borrower defaulted in the repayment of the said loan and the plaintiff filed this originating summons (OS) to foreclose the said property and to sell the same by way of a public auction to recover the outstanding loan. The sum outstanding as at 13 January 1998 is RM605,551.95.

Court's Findings

The defendants argued that since the OS is dated 28 August 1997 and the affidavit in support affirmed by one Seow Swee Eng (encl. 2) is dated 21 August 1997, the affidavit being affirmed earlier to the filing of the OS, must be rendered inadmissible. The defendants relied on H Stacey v. Diamond Metal Products Co, Ltd & Anor [1935] MLJ 248. In that case Terrell J said at p. 250:

... The argument however that no affidavit can be sworn in an action which has not yet been commenced is on a different footing. This is more than an irregularity and makes the affidavit qua affidavit, entirely inadmissible. Certainly there may be cases in which an affidavit sworn a day or two previously, or even affidavits which have not even been sworn, have been used on interlocutory application, on counsel's undertaking that the affidavit shall be resworn, or sworn and filed as the case may be. But when the strict rules are relaxed in such instances the principle is not sacrificed, as the Court acts on the assumption that counsel's undertaking will be honoured, and when that has been done the requirements of the Court's practice have been fully complied with. Apart from such cases affidavits to be used in court proceedings can only be sworn and filed in proceedings that are actually pending.

In reply the plaintiff relied on Kewangan Bersatu Berhad v. Metropolitan Property Holdings Sdn Bhd [1996] 1 MLJ 79. In that case too, objection was taken that the affidavit supporting the originating summons was affirmed earlier than the date of the originating summons. In fact the affidavit was affirmed on 17 May 1994 whereas the originating summons was dated 30 May 1994, there being a difference of 13 days between the affirmation of the affidavit and the dating (or filing) of the originating summons. The learned judge held that in the absence of any requirement of law for the affidavit to be affirmed on the same date as that on which the originating summons is filed or later, an affirmation which precedes the filing of the affidavit is in order and that there is also no requirement for the affidavit to be affirmed at the same time that the originating summons is filed. The learned judge went on to hold that O. 83 r. 2(2) of the Rules of the High Court 1980 (the RHC) which is applicable to charge actions, as in that case, in the same way that O. 28 r. 3(3) of the RHC is applicable to originating summonses generally, only requires the plaintiff to serve a copy of the affidavit in support of its application on the defendant not less than four clear days before the hearing of the originating summons.

With respect, I am of the view that specific attention ought to be given to O. 41 r. 1 of the RHC which reads:

(1) Subject to paragraphs (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 a matter or matters and between parties, that part of the title which consists of the matter or matters may be omitted.

(3) ...

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 a vital factor that must be present; and bef