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2026 MarsdenLR 2024
HIGH COURT SABAH & SARAWAK TAWAU
STEVE RITIKOS, JC
MY COVE SDN BHD – Appellant
Versus
EL NUTRITION SDN BHD & ORS (ENCL 187 259 294 295 302 & 305) – Respondent
[Suit No: TWU-23NCvC-1/4-2019]
An application for a stay of execution requires proof of special circumstances and comes under the clean hands doctrine. Failure to properly execute a mandatory jurat renders an affidavit invalid, and inordinate, unexplained delays in seeking a stay are fatal to the application.
Headnote:(A) Rules of Court 2012 - Order 41 rule 1(7) and (8) - Civil Procedure - Affidavit - Jurat requirement - Failure to comply with requirements for interpreted affirmations renders an affidavit defective and invalid, as they must be translated and the interpreter must take an oath, otherwise the affidavit cannot be accepted. (Paras 9, 12, 13, 16)
(B) Civil Procedure - Stay of Execution - Special circumstances - Mere existence of an appeal does not constitute a special circumstance for a stay. A stay is not a matter of course and the applicant bears the burden to show distinct, extraordinary factors justifying such a relief. (Paras 27, 28, 29, 35)
(C) Civil Procedure - Equity - Clean hands doctrine - Applicants seeking equitable relief must demonstrate they have acted in good faith; failure to disclose material facts or engaging in illegal activities constitutes conduct that justifies dismissal of an application. (Paras 23, 24, 37)
Facts of the case:
An applicant sought a stay of execution of a judgment requiring them to vacate and deliver possession of lands, pending the outcome of an appeal. The application was filed over two years after the initial judgment. The responding party challenged the validity of the supporting affidavits due to defective jurats and argued that the applicant failed to demonstrate special circumstances, exhibited inordinate delay, and lacked clean hands due to non-disclosure and illegal operational activity.
Findings of Court:
The court found that the affidavits were procedurally defective because the interpreter failed to affirm the translation in the jurat, rendering them invalid. Furthermore, the court held that the two-year delay in seeking a stay constituted laches and was fatal. The court also determined that the applicant failed to meet the burden of proving special circumstances and had engaged in conduct disentitling them to equitable relief.
Issues: Whether the supporting affidavits were valid under procedural rules, whether there was an inordinate delay in filing the application, and whether the applicant demonstrated special circumstances and clean hands to warrant an equitable stay of execution.
Ratio Decidendi: The court ruled that a mandatory, valid jurat is essential for the admissibility of an affidavit. Additionally, since an appeal does not automatically operate as a stay of execution, the applicant must provide proof of 'special circumstances' that are distinctive and out of the ordinary, rather than relying on the mere existence of an appeal. An application filed with inordinate, unexplained delay and tainted by the non-disclosure of material facts demonstrates a lack of bona fides.
Result: Application for stay of execution dismissed with costs.
| Table of Content |
|---|
| 1. overview of the application for stay of execution and relevant records. (Para 1 , 2 , 3 , 4) |
| 2. defendant's contentions regarding proprietary interests and alleged special circumstances. (Para 5 , 6 , 7) |
| 3. failure to properly execute a jurat renders an affidavit defective and invalid. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 4. inordinate, unexplained delay acts as a fatal bar to a stay of execution. (Para 17 , 18 , 19 , 20 , 21 , 22) |
| 5. he who seeks equity must come with clean hands; illegal activities preclude equitable relief. (Para 23 , 24) |
| 6. burden of proving 'special circumstances' rests on the applicant; mere pendency of an appeal is insufficient. (Para 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37) |
| 7. dismissal of the application for stay of execution. (Para 38) |
JUDGMENT
[On Enclosure 294]
The Application
[1] Enclosure 294 is the 1st Defendant's application for an order, inter alia, that the execution of the High Court Judgment dated 16 May 2023 [Enclosure 187] ("said Judgment") against the 1st to 3rd Defendants to vacate and deliver possession of the lands held under titles CL105343324 and CL105343315 ("said Lands") be stayed pending disposal of the appeal by the 1st Defendant under Civil Appeal No S-02(IM)(NCvC)-961 06/2023.
[2] Briefly, encl 187 required the 1st Defendant to vacate and deliver possession of the said Lands to the Plaintiff.
Cause Papers
[3] 1st Defendant's cause papers:
i) The Stay Application [Encl 294];
ii) Affidavit In Support of Aco Bin Samsudin affirmed on 17 June 2025 [Encl 295]
iii) Affidavit In Reply of Aco Bin Samsudin affirmed on 16 July 2025 [Encl 305]
[4] Plaintiff's Cause Papers:
i) Affidavit In Opposition of Wong Wah Peng affirmed on 9 July 2025 [Encl 302];
ii) Affidavit In Reply of Wong Wah Peng affirmed on 21 July 2025 [Encl 308].
1st Defendant's Contentions
[5] That the Plaintiff knew of and is aware of the physical presence of the 1st Defendant on the said Lands before and after the auction.
[6] The Plaintiff failed to disclose that Wong Wah Peng is also a director of Prolific Expansion Sdn Bhd which had executed similar unregistered sub-leases over the said Lands. By reason thereof, Wong Wah Peng, as director of Prolific Expansion Sdn Bhd, knew that the 1st Defendant was also holding an unregistered sub-lease over the said Lands and had proprietary interest relevant to the said Appeal.
[7] There are special circumstances in this application, based on the following factors:
(i) said Appeal may be rendered nugatory as execution of the said Judgment will deprive the 1st Defendant of possession of the said Lands including the fruits of the oil palm trees therein and the said Appeal raises a novel legal issue.
(ii) 1st Defendant had improved the value of the said Lands as can be seen from the increase in the area of planted oil palm based on the Report & Rental Valuation In Respect Of The Areas Planted With Oil Palms dated 4 January 2023.
(iii) there is a good chance of success of the said Appeal because of the novel issue of law involved.
Preliminary Issue
[8] At the outset, the Plaintiff raised the issue of whether the Affidavits filed by the 1st Defendant are defective and cannot be used, namely, the Affidavit In Support affirmed by Aco Bin Samsudin (encl 295) and the Affidavit In Reply affirmed by Aco Bin Samsudin (encl 305) (Collectively referred to as "the 1st Defendant's Affidavits").
[9] Plaintiff contended that the 1st Defendant failed to comply with O 41 r 1(7) and (8) of the Rules of Court 2012 in this respect. As the 1st Defendant adopted the jurat in Form 74(d), and since there is no affirmation by the said interpreter Vivien Thien Shin Ying that she "had truly, distinctly, and audibly translated the contents of his affidavit to the deponent", the said affidavit is therefore defective and invalid.
[10] The purported jurat in encl 295 is reproduced herein:
[11] Likewise, the jurat in encl 305:
Findings On The Preliminary Issue
[12] Order 41 r 1(7
