JUDGMENT

Abu Mansor Ali J:

By their writ - Encl. (1) - dated 8 July 1986 the plaintiffs sued the defendants for RM241,250 being alleged loss sustained by the plaintiffs by reason of defendants' failure to take delivery of 1000 metric tons of palm oil and 500 tons of palm kernel alleged to be duly sold by plaintiffs to defendants. On 4 September 1986 the defendants filed the statement of defence - Encl. (4) - denying alleged contract, plaintiffs' loss and that they owe the sum of RM301,250. On 29 October 1986 the plaintiffs filed an application under O. 18, r. 19, praying for an order that the defendants' amended defence be struck out on the ground that the defence discloses no reasonable defence, abuse of the process of Court and meant to delay the fair trial of the matter and praying for judgment be entered for the whole of plaintiffs' claim, or part thereof and costs.

I ordered that arguments be heard in open Court and after hearing both parties on 23 January 1987 I dismissed plaintiffs' application with costs.

In support of the application the applicants filed an affidavit -Encl. (7A) - and this was replied to by the defendants by filing affidavit - Encl. (8).

At the commencement of open Court argument Mr. Yapp Hau Pehn Would appear to have anticipated the defendants'/respondents' objection to the use of affidavits in his application under . He argued that affidavit evidence is admissible for the purpose. If I understand him correctly the evidence referred to in O. 18, r. 19(2) is as provided for in the Evidence Act 1950.Section 2 of that Act says the Act applies only to oral evidence but not to affidavit evidence. Hence such affidavit is admissible, he submitted. He further submitted that the case of New Straits Times (M) Bhd. v. Kumpulan Kertas Niaga Sdn. Bhd. & Anor.[1984] 1 MLRA 771; [1985] 1 MLJ 226 would, therefore, appear to have been wrongly decided as no reference was ever made to s. 2 of the Evidence Ordinance and O. 1, r. 4 of the High Court Rules contains no definition of the word "evidence". With due respect to Counsel I think it is well established law that in an application under O. 18, r. 19(1)(a), Rules of High Court, the applicant is disallowed the use of affidavit evidence. O. 18, r. 19(2), Rules of High Court, is quite specific for it says: "(2) No evidence shall be admissible on an application under para. (1)(a)".

While saying that the Evidence Act 1950 dos not apply to affidavits filed in Court to say that affidavit may be used in an application under O. 18, r. 19(1)(a) is another thing altogether. In Davey v. Bentinck [1893] 1 QB 188 it had been decided that long ago that no such affidavit evidence is admissible. Before a statement of claim or defence can be struck out it must be apparent from the statement of claim or defence itself. In respect of the use of a affidavit in such an application the case of the New Straits Times v. Kumpulan Kertas Niaga case above only reaffirms that principle by the Federal Court and this Court is by the doctrine of stare decisis bound. The Court therefore rejected applicants' affidavit in considering whether the defence discloses any reasonable defence under O. 18, r. 19(1)(a) and for the purpose of considering the first ground looked for what is apparent from the statement of defence itself.

The affidavit was, however, referred to in considering the remaining two other grounds of abusing the process of the Court under and considering the allegation meant to delay the proper trial for this action under O. 18, r. 19(1)(c) thereof in that order.

As regards the amended defence the plaintiffs/applicants applied to strike out Para. 2 thereof denying that there was a concluded contract between the parties in terms alleged in para. 3 of the statement of claim. In para. 3 the defendants pleaded alternatively the plaintiffs were estopped from saying there was a contract reached as at all material times the parties were at negotiation stage subject to entry of agreement. The defe