Compliance with language requirements in legal documents is mandatory, and failure to adhere to established timelines for submitting affidavits affects their admissibility in court proceedings.

ABDUL MALIK ISHAK J

The defendant filed a summons-in-chambers in encl 39 on 18 September 1997 to, inter alia, set aside the judgment in[1998] 6 MLJ 511 at 514 default of appearance obtained by the plaintiff on 1 August 1995 against the defendant as reflected in encl 22. The defendant's application in encl 39 was supported by an affidavit of Wong Tin Kai affirmed on 17 September 1997 and filed on 18 September 1997 as reflected in encl 38.

The unsealed copies of encll 39 and 38 were served on the plaintiff on 18 September 1997. The plaintiff responded and served their affidavit-in-reply in encl 44, that was affirmed by Lim Chiap Chuan @ Lim Chiap Chuah on 24 October 1997, to the defendant on 29 October 1997. At the hearing of the summons-in-chambers in encl 39 before the senior assistant registrar (‘the SAR’) on 4 November 1997, the defendant raised two preliminary objections couched in the following words:

(1)that the plaintiff's affidavit-in-reply in encl 44 did not comply with O 32 r 13(2)(b) of the Rules of the High Court 1980 (‘the RHC’) and consequently, should not be considered by the court; and

(2)that the exhibits in encl 44 especially the exhibits in ‘LCC 2’ and ‘LCC 3’ from pp 24 to 375 were not translated in the national language and for this very reason, they ought not to be taken into account as evidence.

The SAR heard the arguments on 4 November 1997 and dismissed the two preliminary objections with costs in favour of the plaintiff. Being aggrieved, the defendant lodged an appeal to the judge in chambers as reflected in encl 43, focusing entirely on the two preliminary objections.

I heard encl 43 as an actual rehearing and considered the whole matter afresh, as though it came before me for the very first time. I am not fettered by the arguments advanced before the SAR and new arguments will certainly be heard and entertained. These propositions were advanced by Edgar Joseph Jr SCJ (now FCJ) in Seloga Jaya Sdn Bhd v Pembenaan Keng Ting Sabah) Sdn Bhd 1994 MarsdenLR 1428 Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd 1995 MarsdenLR 623

Mr Clarence Edwin, learned counsel for the plaintiff, complained that he received the notice to raise these two preliminary objections just one day before encl 39 was fixed for hearing before the SAR. It was not a notice issued within a reasonable time. In Gurbachan Singh v Seagrott & Campbell (No 2) [1962] MLJ 370 , CJ, speaking for the Court of Appeal, said at p 371 of the judgment:

Before departing from the case I should observe that the procedure followed by the respondents, that is to say giving the other side notice at the earliest possible moment and then dealing with the matter when the appeal comes on for hearing seems to be the course that was followed and certainly not disapproved of in the case of Re Helsby [1894] 1 QB 742

The effect of the failure of one party to give written notice of a preliminary objection to the opposite party was also considered by Low Hop Bing J in Bukit Melita Sdn Bhd v Lam Geok Hee & Ors [1997] 4 AMR 3160 . In that case, his Lordship had this to say (at p 3163):[1998] 6 MLJ 511 at 515

It is obvious that the whole purpose of the notice is to promote good etiquette amongst members of the Bar and more importantly to remove the element of surprise. It is necessary that the party against whom an objection is intended to be raised should not be taken by surprise and that both parties are given equal opportunities to prepare their submissions in order to ventilate all the relevant issues; being forewarned is being forearmed. Although it is true to say that the element of surprise in the instant case is completely non-existent since the parties herein are given adequate equal opportunity and time to prepare their respective written submissions, it must be immediately emphasized that the notice of objection must at all times be given to the other side. There can be no excuse for any delay, intentional or otherwise, in giving notice to the appellant.