Procedural compliance with court rules is essential; delays in entering appearance and filing defenses can undermine a defendant's position and result in injury to justice.

GROUNDS OF JUDGMENT

This was an application by the plaintiff by way of a summons-in-chambers in enclosure 9 for the following prayers:

"(1) That the plaintiff be at liberty to obtain judgment against the defendant under Order 18, rule 1 (1) of the Rules of the High Court, 1980 ["RHC"] for the following reliefs:

(i) specific performance of an understanding dated November 19, 1986;

(ii) surrender of the following land titles:

(a) H.S. (D) 27859 PTD 10406;and

(b) H.S.(D) 27885 PTD 10432 both of which were located at Mukim Tebrau, Johor Bahru, Johore to the plaintiff.

(iii) a new transferform vide Form 14A under the National Land Code, 1965 to be signed by the defendant and in the event the defendant refused to sign, the Senior Assistant Registrar of the High Court, Johor Bahru will sign the said form on behalf of the defendant;

(iv) damages; and

(v) costs.

(2) The costs of the said application be costs in the cause.

(3) Any otherorders which the court feel constrained to order which are fair and reasonable."

The application was supported by an affidavit of Chan Hwa Yik that was affirmed on June 9, 1997 as reflected in enclosure 8. By way of a responsethe defendant through Ng Piak Yeow affirmed an affidavit-in-reply on July 18, 1997 as seen in enclosure 19. It must be emphasised that enclosures 9 and 8 were filed on June 16, 1997 while enclosure 19 was filed on July 29, 1997.

Onthe date of hearing of enclosure 9, Miss Zainab Jan of counsel for the plaintiff raised three potent preliminary objections. This judgment is centred on these three preliminary objections.

The delay in entering anappearance

By way of an affidavit of service in enclosure 4, Shahrudin bin Moideen deposed that he had served the sealed copy of the writ of summons dated February 3, 1997 and the Statement of Claim (as seen in enclosure 3) byAR Registered post to Ng Pyak Yeow, the liquidator of the defendant's company, on March 24, 1997 at suite 6.13, 6th floor, Plaza Imbi, 28 Jalan Imbi, 55100 Kuala Lumpur. There was an acknowledgment of receipt of those documents by Ng Pyak Yeow, the liquidatorof the defendant's company, on March 26, 1997 as seen in exhibit marked "SM 1" of enclosure 4. Since the plaintiff's address was listed at no: 7. Jalan Teluk, Taman Tanjong, 83000 Batu Pahat, Johore and the defendant's address wasin Kuala Lumpur, the time for entering an appearance would run from March 26, 1997 as envisaged under Order 12, rule 4(a) of the RHC till April 6, 1997 - exactly 12 days after the service of the writ, including the day of service. The defendant filed their memorandumof appearance on April 14, 1997 even though the memorandum of appearance was dated April 7, 1997 and this can clearly be seen in enclosure 6. There was thus a delay of 8 days before the defendant entered the memorandum of appearance.

TheRHC provides the mode of entering an appearance. It is by completing the memorandum of appearance in Form 15 and must be signed by the person, and in this case, it was signed by the defendant's solicitors within the meaning of Order 12, rule 2 of the RHC.It is germane to note that the court in Tan Lian Hong v. Min Ngai Knitting (M) Ltd & Anor [19/4] 1 MLJ 76 held that the solicitor must act with the authority of the defendant and mere instruction by the defendant's insurers will not validate the entryof appearance.

What is an appearance? It is said to be the process by which a person against whom a suit has been commenced to show, firstly, his intention to defend the suit and, secondly, to submit to the jurisdiction of the court.Jeffrey Pinsler in his book entitled "Civil Procedure", 1974 edition at page 135 said that:

"The rationale of the process of appearance is to enable the defendant to officially communicate his intentionto defend or challenge the action."

Once an appearance has been entered, whether conditional or otherwise, it automatically prevents a judgment in default from being signed. Until an appearance has been duly entered, the defendantis prevented an