By Puthan Perumal*
In Ng Hee Thoong v Public Bank Bhd (1995) 1 MLJ 281, Gopal Sri Ram JCA at page 281 had this to say:-
I am conscious of the more robust approach to applications for summary judgment that has been adopted by our courts more recently. (See the majority judgment in Bank Negara Malaysia v Mohd Ismail & Ors (1992) 1 MLJ 400). But I think that in the process the cautionary words of Thompson CJ in Syn Lee (1961) MLJ 87 to which emphasis has been supplied may have been overlooked.
It is my respectful view that the passage in the opinion of Lord Diplock in Eng Mee Yong v Letchumanan (1980) AC 331; (1979) 2 MLJ 212 that was quoted by Macdonald J in Bank of British Columbia (1985) 57 BCLR 350 and relied upon by the majority in Bank Negara is entirely irrelevant to an application for summary judgment. Although the majority decision of the Supreme Court may plainly bind us, I cannot escape the feeling that the minority judgment of Gunn Chit Tuan SCJ (later CJ (Malaya)) and the approach taken by him truly represents the law. It is neither open to me nor is it my place to say anything more about the rather novel decision in Bank Negara, but the time may come when the approach there adopted by the majority may have to be reconsidered by the Federal Court in an appropriate case.
The cautionary words of Thomson C.J in Syn Lee & Co Ltd v Bank of China (1961) 27 MLJ 87, referred to by Gopal Sri Ram JCA appear at page 87 as follows:-
With great respect it seems to me there may have been some slight misapprehension on the part of the Assistant Registrar and on the part of the trial Judge as to the proper approach. It is not quite the same as the problem with which we are always being faced in the Chancery side of the Court of trying issues on affidavit evidence. In a case of this sort it is not a case of trying the issues on affidavit evidence, it is rather a question of deciding on affidavit evidence whether there is a moral improbability of a very high degree that the defendant can possibly succeed.
It would seem that Thomson CJ in Syn Lee has made a clear demarcation between matters that are disposed off on affidavit evidence and matters that are not, and an application for summary judgment, according to Thomson CJ, would fall under the latter category.
The case of Eng Mee Yong v Letchumanan (1979) 2 MLJ 212 was an appeal to the Privy Council from a judgment of the Federal Court of Malaysia in proceedings brought in the High Court in Malaya at Seremban under Section 327(1) of the National Land Code, claiming the removal of a private caveat which had been entered on the register document of title to land under section 322 of the said Code.
Lord Diplock, at page 217, held:-
Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be. In making such order on the application as he “may think just” the judge is vested with a discretion which he must exercise judicially. It is for him to determine in the first instance whether statements contained in affidavits that are relied upon as raising a conflict of evidence upon a relevant fact have sufficient prima facie plausibility to merit further investigation as to their truth.
Now, beside the fact of the nature of proceedings in Eng Mee Yong being worlds apart from that of a summary judgment application, it is clear that an application for removal of a caveat is a case of trying issues on affidavit evidence.
Therefore, the question that arises is this: is an application for summary judgment a case for trying issues on affidavit evidence?
Mohamed Azmi SCJ, delivering the majority judgment of the Supreme Court in Bank Negara v Mohd Ismail & Ors  1 MLJ 400, seems to answer that questions in the positive.
At page 408, Mohamed Azmi SCJ held:-
In our view, basic to the application of all those legal propositions, is the requirement under O 14 for the court to be satisfied on affidavit evidence that the defence has not only raised an issue but also that the said issue is triable. The determination of whether an issue is or is not triable must necessarily depend on the facts or the law from each case as disclosed in the affidavit evidence before the court.
At this juncture, the approach adopted by Mohamed Azmi SCJ, seem to be the proper one. However, he goes on to say:-
On the treatment of conflict of evidence on affidavits, Lord Diplock speaking in the Privy Council on Eng Mee Yong & Ord v Letchumanan had this to say at p 217:
Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.
Although Lord Diplock was dealing with an application for removal of caveat in that particular case, we are of the view that the above principle of law is relevant and applicable in all cases where a judge has to decide a case or matter on affidavit evidence.
Under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertions, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertions or denial, thereby rendering the issue not triable. In our opinion, unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O 14 application.
The words “Although Lord Diplock was dealing with an application for removal of caveat in that particular case, we are of the view that the above principle of law is relevant and applicable in all cases where a judge has to decide a case or matter on affidavit evidence” in Bank Negara (supra) seem to contradict the words of Thomson CJ in Syn Lee (supra) which states “In a case of this sort it is not a case of trying the issues on affidavit evidence, it is rather a question of deciding on affidavit evidence whether there is a moral improbability of a very high degree that the defendant can possibly succeed…..”.
Let us then look into a series of cases which have dealt with an application for summary judgment and determine the approach that the Courts have taken over the years.
In Ford v Harvey & Ors (1893) 9 TLR 328, it was reported at page 3298, with Mr. Justice Hawkins concurring with Lord Coleridge:-
Lord Coleridge, in giving judgment, said some portions of the case had struck him. It was sufficient, however, to say that there was a bona-fide complaint on the part of the defendants of the conduct of the late Mr. Ford. Whether, or how far, those were well founded, it was not necessary to inquire. It was enough to say that it was clear that there was a bona-fide counter-claim and defence; and that very serious questions might arise which ought to go before a jury.
In The Electric and General Contract Corporation v The Thomson-Houston Electric Company 10 TLR 103, it was reported at page 103, with Mr. Justice Wright concurring with Mr. Justice Wills:-
Mr. Justice Wills said he came to the conclusion that the order at Chambers was right. He did not think that Order XIV., providing for summary judgment, applied to cases like this, raising what might turn out to be a difficult question of law. It was never intended to throw on the Judge as Chambers such a burden. It was impossible that such questions could be satisfactorily be dealt with summarily at Chambers. This very case has been so argued as to occupy about two hours, and yet no time was wasted. Such questions were not meant to be dealt with summarily at Chambers. And on that ground alone he should uphold the order, allowing leave to defend.
In Manger and Another, Syndics Under the Bankruptcy of N Rodrigues Et Cie v Cash (1889) 5 TLR 271, it was reported at page 271, with Mr.Justice Manisty concurring with Mr.Justice Denman:-
Mr. Justice Denman, in giving judgment, said the action was rather a peculiar nature, not like an ordinary action, but one which might involve some consideration of difficulty. It was an action on a foreign judgment for a very large amount, and the defence in substance was that it had been obtained by fraud…..Now, his opinion was that a plaintiff’s right to have summary judgment under Order XIV was not absolute merely because the defendant’s affidavits as to his defence are not completely satisfactory. The jurisdiction was one to be exercised with great care, so as not to preclude a party from raising any defence he may really have. The Judge was not to make the order if either he was satisfied that there was a defence, or that the defendant should be allowed to defend.
In the English Court of Appeal case of Cow v Casey (1949) 1 KB 474, the legal question contended by the defence to be reasonably arguable was the point of law on sub-tenancy and the protection of the Rent Restriction Acts. Lord Greene M.R said at page 481:-
If a point taken under the Rent Restriction Act is quite obviously an unarguable point, the court has precisely the same duty under O 14 as it has in any other case. It may take a little longer to understand the point and to be quite sure that one has seen all round it in a case under the Rent Restriction Acts than in other cases, but when the point is understood and the court is satisfied that it is really unarguable, then the court has the duty to apply the rule, and, in my opinion, the master was perfectly right, and the appeal should be dismissed.
In the Court of Appeal case of Ho Chooi Soon v The Indian Overseas Bank Ltd (1961) 27 MLJ 86, Thomson CJ held at page 87:-
For myself I fail to detect any special circumstances in the present case, and in thinking that they are certainly no such circumstances which would justify us in interfering I am fortified by the observations of Mr. Justice Wills in the case of The Electric & General Contract Corporation v The Thomson-Houston Electric Co where his Lordship said that he did not think Order 14 applied to cases raising what might turn out to be a difficult question of law. Such questions could not be satisfactorily dealt with at Chambers.
In my view, in the present case, there were not only certain issues of fact on which the parties were far from being agreed but there was also a question of law on which I would express no opinion whatsoever beyond the opinion that it was not a simple straightforward question of law.
In Miles v Bull (1968) 3 All ER 632, Megarry J held at page 637 para G:-
Under r.3 and r.4 of the present R.S.C., Ord.14, the defendant can obtain leave to defend if (and I read from r.3(1)) the defendant satisfies the court “that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial”. These last words seem to me to be very wide. They also seem to me to have special significance where (as here) most or all of the relevant facts are under the control of the plaintiff, and the defendant would have to seek to elicit by discovery, interrogatories and cross-examination those which will aid her. If the defendant cannot point to a specific issue which ought to be tried, but nevertheless satisfies the court that there are circumstances that ought to be investigated, then I think those concluding words are invoked. There are cases when the plaintiff ought to be put to strict proof of his claim, and exposed to the full investigation possible at a trial; and in such cases it would, in my judgment, be wrong to enter summary judgment for the plaintiff.
In the Federal Court case of Voo Min En & Ors v Leong Chung Fatt (1982) 2 MLJ 241, Salleh Abas FJ held at page 243 para E:-
That being the case, it is not enough for the respondent in answer to the appellants’ application to sign final judgment, to raise an issue, or any issue. He must, however, raise such issue as would require a trial in order to determine it. In other words, the issue raised must be an arguable issue. But where the issue raised is irrelevant and ineffective, or to use the words of Lord Greene M.R. in Cow v Casey “ when the point is understood and the court is satisfied that it is really unarguable”, the appellant should be entitled to what they prayed for in the summons-in –chambers.
In the English Court of Appeal case of European Asian Bank AG v Punjab and Sind Bank (1983) 2 All ER 508, Robert Goff LJ held at page 516 para a:-
Moreover, at least since Cow v Casey (1949) 1 All ER 197, (1949) 1 KB 474, this Court has made it plain that it will not hesitate, in an appropriate case, to decide questions of law under Ord 14, even if the question of law is at first blush of some complexity and therefore takes ‘a little longer to understand’. It may offend against the whole purpose of Ord 14 not to decide a case which raises a clear-cut issue, when full arguments has been addressed to the court, and the only result of not deciding it will be that the case will go for trial and the argument will be rehearsed all over again before a judge, with the possibility of yet another appeal. The policy of Ord 14 is to prevent delay in cases where there is no defence; and this policy is, if anything, reinforced in a case such as the present, concerned as it is with a claim by a negotiating bank under a letter of credit.
In the Federal Court case of United Malayan Banking Corporation Bhd v Palm & Vegetable Oils (M) Sdn Bhd (1983) 1 MLJ 206, Raja Azlan Shah Ag L.P., held at page 208 para G:-
We have not dealt in any detail with the facts and particulars of the several allegations made on both sides as it is not our province to touch on the merits of the issues involved. We only need to consider whether or not there are issues or questions in dispute which ought to be tried. Summary judgment is only given in a plain and obvious case. This is certainly not one. We find as we have indicated that there are in fact triable issues and this is substantiated by the necessity for applications for the admission of Queen’s Counsel in this appeal on the grounds of the complexity of the case which involves difficult questions of fact and law and also the voluminous affidavits and exhibits put in and the arguments presented before us over a period of two days.
In the Privy Council appeal case of Syarikat Bunga Raya Timor Jauh Sdn Bhd & Anor v Tractors Malaysia Bhd (1983) 1 MLJ 121, Lord Fraser of Tullybelton held at page 122 para H:-
The application for summary judgment was resisted on the ground inter alia that the agreements were in reality hire purchase agreements. In support of that contention the first appellant (defendants) relied on a letter dated August 21, 1975 from the respondents to them. Koh Kim Chai, who is a director of both appellants, swore an affidavit dated September 11, 1978 in which he stated his belief that they had a good defence.
And further at page 123 para I to 124 para A, it was held:-
The affidavit is somewhat lacking in particularity, and it unfortunately does not give a full explanation of the reasons for the various provisions in the agreements and the letter, but their Lordships are of the opinion that it gives just enough to show that a triable issue exists.
In Percetakan Solai Sdn Bhd v Kin Kwok Daily News Sdn Bhd & Anor (1986) 1 MLJ 240, George J held at page 244 para I:-
Now, on a general principle where a defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence he ought to be given leave to defend (Saw v Hakim). A defendant should not be shut out from defending unless it is a very clear indeed that he has no case in the action under discussion (Sheppards v Wilkinson). The power to give summary judgment under Order 14 is “intended only to apply to cases where there is no reasonable doubt that a plaintiff is entitled to judgment and where therefore it is inexpedient to allow a defendant to defend for mere purposes of delay” (Jones v Stone).Where there is any serious conflict as to matters of law arises, summary judgment under Order 14 should not be granted. (Electric & General Corpn v Thomson-Houston Electric). But, however difficult the point of law is, once it is understood and the Court is satisfied that it is really unarguable it will give final judgment (Cow v Casey).
In the instant case the claim based on the agreement of November 20, 1980 turns on the true construction of the provisions of the agreement which boils down to the question whether the defendants can be allowed to rely on their contention that their accounts had not been audited. All the necessary evidence necessary to adjudge the issue was before the Court and the law to be applied is really trite.
In the Supreme Court case of Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd (1987) 2 MLJ 183, the late Hashim Yeop A. Sani SCJ held at page 184 para D:-
What is involved in the present appeal is the other principle considered I European Asian Bank by Goff LJ (as he then was) that is, what happens when a legal issue is raised by the defence in an Order 14 application. In this regards several principles are involved. First, the court hearing an Order 14 application should work within the framework of Order 14 and not embark on an exercise under Order 33 rule 2 which empowers the court to determine any question or issue arising in a cause or matter whether of fact or law or partly of fact or partly of law before trial of the cause or matter. Order 33 rule 2 is entirely for a different purpose. Secondly, where the issue raised is solely a question of law pure and simple without reference to any facts or where the facts are clear and undisputed the court should exercise its duty under Order 14 as in any other cases and decide on the question of law. This is so even if the issue of law raised is a difficult one. If the court after considering the argument is satisfied that it is really unarguable then the court should grant summary judgment.
At page 186, it was further held:-
The underlying philosophy in the Order 14 provision is to prevent a plaintiff clearly entitled to the money from being delayed his judgment where there is no fairly arguable defence to the claim. The provision should only be applied to cases where there is no reasonable doubt that the plaintiff is entitled to judgment. Order 14 is not intended to shut out a defendant. The jurisdiction should only be exercised in very clear cases.
In the Supreme Court case of Gunung Bayu Sdn Bhd v Syarikat Pembinaan Perlis Sdn Bhd (1987) 2 MLJ 332, Wan Suleiman SCJ, held at page 336 para E:-
What is clear to us is that there appears to be a plentitude of triable issues. It is trite law that leave to defend must be given unless it is clear that there is no real substantial question to be tried (Codd v Delap) or unless there is no dispute as to facts or law which raises a reasonable doubt that plaintiff is entitled to judgment.
Finally, for the purposes of discussion here, let us look into the dissenting judgment of Gunn Chit Tuan SCJ in the case of Bank Negara (supra). The relevant portion of the judgment is found at page 414 to 415, which states:-
The scope of O 14 proceedings meant for cases which are virtually uncontested or uncontestable is now determined by the Rules of the High Court 1980. Generally where a defendant shows that he has a fair case for defence, or reasonable grounds for setting up a defence, or even a fair probability that he has a bona fide defence, he ought to have leave to defend. Order 14 is not intended to shut out a defendant. The jurisdiction should only be exercised in very clear cases (Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd, Gunung Bayu Sdn Bhd v Syarikat Pembinaan Perlis Sdn Bhd). It was held in the well known House of Lords’ case of Jacob v Booths’s Distillery Co that a complete defence need not be shown. The defence need only show there there is a triable issue or question or that for some other reason there ought to be a trial, and leave to defend ought to be given. In fact, even though the defence is not clearly established, but only reasonable probability of there being a real defence, leave to defend should be given (Manger v Cash).
From a reading of all the abovementioned cases and their relevant passages in relation to the principle applicable in approaching an application for summary judgment, it would appear, now, that the majority judgment in Bank Negara has departed from a long line of cases and the principles set forth therein whereas the minority judgment seems to be in accordance with them. Surely, we must now take cognizance of what was said by Gopal Sri Ram JCA in Ng Hee Thoong.
The principle applicable in summary judgment applications are trite. The Courts do not have the room to delve into the truth of assertions in conflicting affidavits which raise conflicting evidence. This is because it is not within the scope of the Courts to decide a case or matter outright through an application for summary judgment. The Courts must decide whether the defendants should be given leave to defend or not.
However, the mere production of conflicting affidavits does not automatically raise a triable issue. Issues are not triable if they are irrelevant, unarguable, ineffective or do not require further investigation OR they do not raise any difficult or arguable points or questions of law. In such circumstances, summary judgment should be allowed.
It is important here to reproduce and reiterate the relevant passage by Raja Azlan Shah Ag L.P in United Malayan Banking Corporation Bhd v Palm & Vegetable Oils (M) Sdn Bhd (supra) :-
We have not dealt in any detail with the facts and particulars of the several allegations made on both sides as it is not our province to touch on the merits of the issues involved. We only need to consider whether or not there are issues or questions in dispute which ought to be tried. Summary judgment is only given in a plain and obvious case.
To conclude, it is now safe to say that an application for summary judgment is not a method for a case or a matter to be decided and disposed off on affidavit evidence. It is a method to ascertain and determine whether a defendant in a particular claim ought to be given leave to defend that claim or not. In deciding that, the Courts must see whether there exist issues that ought to be tried, in other words, issues that can only be determined at full trial.
* Advocate & Solicitor of the High Court of Malaya