JUDGMENT

1. There are two applications this morning; one, an application for summary judgment under O 14 of the Rules of the High Court 1980 by the plaintiff (Encl. 10) and the other, an application by the 2nd defendant to strike out the plaintiff's claim under O 18 r 1 of Rules of the High Court 1980 (Encl. 30), on the ground that the claim is scandalous, frivolous or vexatious. As the two applications relate to the same issue, I will deal with them together. (No appearance was entered by the 1st defendant.)

2. First, I will deal with the plaintiff's application (encl. 10), which is supported by the plaintiff's counsel, Mdm. Chanderiga Suppiah's affidavits affirmed on 12th October, 1998 and 16th November, 1998. The application is opposed by the 2nd defendant, by his two affidavits [3] affirmed on 4th and 18th November, 1998, and of Mr. Louis Ng, the counsel's affidavit affirmed on 27th November, 1998.

3. The application against the 2nd defendant is for the following:-

a) ;A declaration that the 2nd defendant is under duty to compensate the plaintiff for trespass and damages;

b) ;Damages for trespass and nuisance;

c) ;Special damages of RM56,650.00;

d) ;Mense profit at RM2,500.00 p.m. from 31st January, 1997 until judgment; and

e) ;General damages and costs,

on the ground that the 2nd defendant has no defence.

Brief Facts of Case

4. On 27th January, 1997 by a Sale & Purchase Agreement (Exhibit D) the 1st defendant purchased the plaintiff's house, Lot 40 Section 41, KTLD known as no. 73, Bampfylde Heights, Kuching (the said property), at a price of RM300,000.00. He took possession of the said property and carried out renovations on the said property.

5. The curious fact is that on the same day, i.e. 27th January, 1997 the 2nd defendant a next door neighbour, deemed to have executed a Sale & Purchase Agreement (Exhibit E) with the 1st defendant whereby the said property was sold by the 1st defendant to the 2nd defendant at a price of RM380,000.00.

6. On 18th June, 1997 the plaintiff terminated the Sale & Purchase Agreement (Exhibit D) which was communicated to the 1st defendant, through the plaintiff's lawyers M/s Battenberg & Talma on 27th June, 1997. Subsequently, on 24th September, 1997 the plaintiff evicted the 1st defendant from the said property, and the 1st defendant handed the keys thereto to M/s Tang & Tang, Wahap & Ngumbang, the joint solicitors fo both the 1st and 2nd defendants. [4]

7. Now, the plaintiff alleged that the 2nd defendant himself, or by his agents or servants, had wrongfully trespassed on the plaintiff's property. The 2nd defendant denied that he had taken possession of the said property. The keys to the said property were kept by the 1st defendant who, on being evicted, handed them to his solicitors on 24th September, 1997.

8. At the hearing, learned counsel for the 2nd defendant raised two preliminary objections: (a) the affidavits of the counsel in support of the application were in contravention of O 41 r 5 Rules of the High Court 1980, and (b) the photographs in the affidavits were inadmissible evidence.

9. Learned counsel of the plaintiff explained that as her client (i.e. the plaintiff) had been under detention, she was not able to get him to write an affidavit, and she argued that as she had been engaged by the plaintiff earlier and she had been personally handling the matter, all the things deposed in the affidavits were within her knowledge.

10. Order 41 r 5 states:-

"5. (1) Subject to Order 14 rules 2(2) and 4(2), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.

(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof."

11. There are a number of authorities on the operation of O. 41 r. 5. In Alliance (Malaya) Engineering Co. Sdn. Bhd., Singapore v San Developmen