JUDGMENT

Ramly Ali JC:

Introduction

This is an appeal by the appellant (plaintiff) to the judge-in-chambers against the decision of the learned Senior Assistant Registrar (SAR) made on 4 April 2001 whereby the learned SAR had allowed the defendant's preliminary objection and subsequently dismissed the appellant's application to amend the name of the plaintiff in the writ of summon (encl. 1) by way of summon-in-chambers dated 16 February 2001 (encl. 20).

Originally the name of the plaintiff cited in the title of the writ was "Malayan Banking Berhad". Subsequently, the appellant filed an application by way of a summon-in-chambers dated 16 February 2001 (encl. 20) to substitute the name "Malayan Banking Berhad" with "Aseambankers Malaysia Berhad" as the plaintiff. The said application was supported by an affidavit-in-support deposed by Shaikh Abdul Saleem on 15 February 2001 (encl. 21). The said Shaikh Abdul Saleem is an advocate and solicitor attached to Tetuan Shearn Dalemore & Co, solicitors for the plaintiff (appellant). When the said application came up for hearing on 4 April 2001 before the learned SAR, the counsel for the defendant raised a preliminary objection that the affidavit-in-support of the application should not be deposed by the solicitors for the appellant, but must be deposed by the appellant itself. The defendant contended that since the affidavit-in-support of the appellant's application was deposed by its solicitors, then the affidavit is defective and thus the application should be dismissed. The learned SAR rejected the affidavit and dismissed the appellants application and hence the appeal.

Appellant's Submissions

The learned counsel for the appellant submitted that the application (as in encl. 20) to amend the name of the plaintiff in the title of the writ (encl. 1) from "Malayan Banking Berhad" to "Aseambankers Malaysia Berhad" is not a contentious matter. It is purely based on clerical error, on part of the solicitors office in preparing the writ. There is nothing to be disputed on the issue. As such it is only proper for the solicitors, who was responsible to prepare the relevant papers to be filed in respect of the action, to depose the said affidavit-in-support. The appellant also submitted that the said clerical error was only in respect of the title of the writ but not the statement of claim. It was also argued by the appellant that the error was not intentional and did not prejudice the defendant as the name of the plaintiff as stated in the notice of demand was "Aseambanker Malaysia Berhad". The appellant is willing to bear the costs of the application before SAR and this appeal, to be paid to the respondent.

Respondent's Submission

The respondent, on the other hand, submitted that the amendment to be applied by the appellant (encl. 20) involved a question of fact. As such the affidavit-in-support must be deposed by a representative of the plaintiff, who has knowledge of the matters, but not the solicitors. To support it's submission the respondent cited the following authorities:

i) Kaplands Sdn Bhd v. Lee Chin Cheng Dengkil Oil Palm Plantations Sdn Bhd[2000] 4 CLJ 281

ii) Tan Pow & Anak-Anak Sdn Bhd v. Pelasari Sdn Bhd[1999] 1 CLJ 165

iii) Sabah Bank Bhd v. Pemborong Keningau Sdn Bhd[1991] 3 CLJ 2590; [1991] 3 CLJ 677 (Rep)

iv) Samsuri Welch Abdullah v. Ong Liang Hee[1999] 3 AMR 2955.

For the purpose of this appeal, which shall be by way of re-hearing, I shall first consider and determine the issues raised in the preliminary objection by the respondent and subsequently the application of the appellant as in encl. 20.

Preliminary Objection By The Respondent

The only question to be asked for the preliminary objection is: Can a solicitor depose an affidavit for and on behalf of a litigant?

There is no express provisions of law relating to this matter. There is also no provision of law to say that such as affidavit could not be accepted by court. Rule 28, of the Legal Profession (Practice and Etiq