QUESTION 1

State how the followings are named as parties in a civil proceeding:

i. An individual

● Order 5 Rule 6(1) provides the right to sue in person whereby it states
that subject to paragraph (2) and order 76, rule 12, any person, whether
or not he sues as trustee or personal representative or in any other
representative capacity, may begin and carry on proceedings in the Court
by a solicitor or in person.

ii. Company

● Order 5 Rule 6(2) states that a body corporate may not begin or carry on
any proceedings otherwise than by a solicitor unless there is any written
law that provides otherwise.
● Section 16(5) of Companies Act 1965 : On and from the date of
incorporation specified in the certificate of incorporation but subject to this
Act the subscribers to the memorandum together with such other persons
as may from time to time become members of the company shall be a
body corporate by the name contained in the memorandum capable
forthwith of exercising all the functions of an incorporated company and of
suing and being sued…
● Section 21(1)(a) Companies Act 2016: A company shall be capable of
exercising all the functions of a body corporate and have the full capacity
to carry on or undertake any business or activity including to sue and be
sued.

iii. Society

● Section 9(c) of Societies Act 1966: a society may sue or be sued in the name
of such one of its members as shall be declare to the Registrar and registered by
him as the public officer of the society for that purpose, and, if no such person is
registered, it shall be competent for any person having a claim or demand
 against the society to sue the society in the name of any office-bearer of the
society.
● Mohd Latiff v Tengku Abdullah &Ors [1995]:

iv. Minor

● Rule 1: "person under disability" means a person who is a minor or a patient.

● Rule 2 ss (1): Person under disability shall sue a litigation representative – his
litigation representative on his behalf will be the one that can commence civil
proceedings.
● Rule 2 ss (3): A litigation representative of a person under disability shall act by a
solicitor.
● Rule 3 ss (7) (iii): Litigation representatives can be any person who is capable of
instituting proceedings and is not connected with the defendant or has any
interest adverse to the person under disability. (Preference will be given to the
parent or guardian, or to some other relatives or connections of the person under
disability or their nominee)
● Case: Pang Wee See & Anor (memohon untuk pihak mereka sendiri dan sebagai
wakil litigasi bagi Pang Cheng Chuen, seorang kanak-kanak) lwn Pendaftar
Besar Kelahiran dan Kematian, Malaysia (2016)

v. Person of unsound mind

● Rule 1: "Patient" means a mentally disturbed person within the meaning of the
Mental Health Act 2001.
● Rule 2 ss (1): Person under disability shall sue a litigation representative – his
litigation representative on his behalf will be the one that can commence civil
proceedings.
● Rule 2 ss (3): A litigation representative of a person under disability shall act by a
solicitor.

vi. A partnership

● Rule 1: a partnership may sue or be sued in the name of the firm or trading
name.
 ● Rule 2 ss (1): Disclosure of partner’s name - Any defendant to an action brought
by partners in the name of a firm may serve on the plaintiffs or their solicitor a
notice requiring them or him to furnish the defendant with a written statement of
the names and places of residence of all the persons who were partners in the
firm at the time when the cause of action accrued without delay.
● Rule 4 ss (1): Where persons are sued as partners in the name of their firm,
appearance may not be entered in the name of the firm but only by the partners
thereof in their own names, but the action shall nevertheless continue in the
name of the firm.
● Rule 9: an individual carrying on business within jurisdiction in a name or style
other than his own may be sued in that name or style as if it were the name of a
firm or the name which he carries on business but may only sue in his own
name. - E.g: ‘XY (a trading name)’.
● Case: Wee Tiang Kheng v Ngu Nii Soon & Ors

(5 marks each)

QUESTION 2

James, an American was employed by the United State Embassy as a chauffeur. His status as
a diplomat was pending. He recently was appointed as an executor of the estate of his
deceased girlfriend, Judy Lai who was a Malaysian. Lai Kong, the late Judy Lai’s son, now
wishes to sue James as the executor of the estate of his deceased mother to revoke his
appointment as executor. James’s argument was that being a foreigner he was not subjected to
the Malaysian Court.

Advise Lai Kong. Would your advice be different if James was a Diplomat? (10 marks)

ANSWER:

The issue is whether Lai Kong can sue James as the executor of the estate of his mother, Judy
Lai?
Upon death of the deceased, action against the estate of the deceased shall vest on the
appointed personal representatives upon obtaining the grant of representation namely the
executor or the Administrator.

Order 80 of the Rules of Court 2012: An administration action can be commenced against the
personal representative at the High Court to obtain directions on questions that arose during the
administration of an estate.

An executor can sue with his cause of action even if the grant of probate has not been extracted
because he derives his title and authority from his will of testator and not from any grant of
probate. His right to sue arose at the time of the testator’s death. However, an executor cannot
be sued before the grant of probate is extracted.

Case: Mohamidu Mohideen Hadjiar v Pithey [1894], it was held that a creditor cannot sue the
executor unless he had obtained a grant of probate.

Application: Lai Kong may be able to sue James as an executor of the estate of his deceased
girlfriend if James has already obtained a grant of probate. Order 80 of RC 2012, enables Lai
Kong to commence an administration action against James at the High Court.

The second issue is whether Lai Kong can revoke James’s appointment as executor.

Section 34 of the Probate and Administration Act 1959: the removal of the personal
representative by applying to the High Court for the revocation of the Grant of Probate or Grant
of Letters of Administration issued - “Any probate or letters of administration may be revoked or
amended for any sufficient cause.”

To invoke the High Court’s jurisdiction under Section 34 PAA 1959, you will have to establish
that there is sufficient cause for the revocation. Further, you will need to adduce sufficient
evidence to raise a strong suspicion of the personal representative’s inaction, want of diligence
and dishonesty, or that there is a conflict of interest. These are mostly questions of facts which
will depend on the circumstances of your case.

In the case of Ligar Fernandez v Eric Claude Cooke [2002], the High Court held that so long
as it can be objectively determined that there is a reasonable suspicion in the executor or
administrator’s conduct, the plaintiff would have a reasonable chance in the revoking or
amending the Grant of Probate or Grant of Letters of Administration.
Application: Lai Kong may apply to the High Court by virtue of section 34 of PAA for revocation
of James’s appointment as executor provided there is a reasonable/sufficient cause. As in the
case of Ligar Fernández, if Lai Kong can prove to the court that there is reasonable suspicion
that James’s conduct is

If James was a diplomat, according to Vienna Convention on Diplomatic Relation 1961 which
was rectified and incorporated as Malaysian law (Diplomatic privileges (Vienna convention) Act
1966),

Article 37 Para 2: Members of the administrative and technical staff of the mission in the
receiving State shall enjoy the privileges and immunities.

Article 31(1): enjoy immunity from the Criminal jurisdiction, civil and administrative jurisdiction
except in the case of— an action relating to succession in which the diplomatic agent is involved
as executor, administrator, heir or legatee as a private person and not on behalf of the sending
State.

Application: Will still be subjected to the Malaysian Court. By virtue of the Vienna convention of
article 37, a if James’s status as diplomats has been approved he may be immune from being
sued in the Malaysian Court. However, such immunity is not to the extent where the cause of
action is relating to succession. James is a diplomat agent and an executor of Judy Lai’s estate.
Thus, by virtue of article 31(1), he may be subjected to Malaysian court.

QUESTION 3

Chan applied for the grant of administration of the estate of deceased Ah Moi and on 18
October 2019 obtained an order for the grant of administration to him. In his capacity as an
administrator he issued a writ against Choy for an order to vacate a premise belonging to the
estate on 4 November 2019. But up to the date of the issuance of the writ Chan had not
extracted the letter of administration. It is the defence, Choy contention was that Chan had no
capacity to sue on behalf of the estate. Advise Chan.

Would your answer be different if Chan was an executor? (20 marks)

ANSWER:
The issue is whether Chan can issue a writ against Choy for an order to vacate a premise
belonging to the estate before the letter of administration is extracted.

Upon death of the deceased, action against the estate of the deceased shall vest on the
appointed personal representatives upon obtaining the grant of representation namely the
executor or the Administrator.

Section 8(1) CLA: subject to this section, on death of any person all causes of action subsisting
against or vests in him shall survive against, or for the benefit of his estate.

Section 8(3): no action shall be maintainable in respect of cause of action in tort against the
estate of the deceased person, UNLESS proceedings against him: 1) pending at the time of his
death; 2) it is taken later not later than 6 months after his personal representative took out
representation.

A writ may be issued in the name of the deceased’s plaintiff or defendant. However, a writ
issued in the name of the deceased plaintiff is legally void.

Case: Dawson v Dove [1971], in this case, writs were issued in the names of each of the
plaintiffs claiming damages against Defendant. Defendant had, unknown to the plaintiffs, died
on July 28, 1967, appointing the defendants as his executors. By the time that the plaintiffs
heard of Defendant's death, the limitation period for suing executors in tort had expired. The
plaintiff, upon realizing this, applied to amend the writ to substitute the deceased’s name with
the defendants. However the defendant objected and appealed against the decision of the
registrar allowing the amendment.

Held: Writs in the three actions and all subsequent proceedings be set aside on the ground that,
at the dates when the writs were issued, Frederick William Dawson was already dead.

An administrator cannot sue or be sued before letters of administration are extracted.

Case: Ang Hoi Yin v Sim Sie Hau [1969], in this case letters of administration had been
granted to the plaintiff in the estates of S.C.K. and S.K.M. but it had not been extracted. The
plaintiff in her capacity as administratrix brought an action against the defendant. The defendant
entered conditional appearance and applied to the court to set aside the writ for want of
qualifying status on the part of the plaintiff.
Held: As the plaintiff had not extracted the grant of letters of administration, she had no power to
sue as administratrix and therefore the suit was a nullity and must be set aside.

Case: P Govindasamy Pillay v Lok Seng Chai [1961], the court had granted the order for the
grant of administration. The issue in this case is whether a person who has obtained an order
from the Registrar for the grant of letters of administration to issue can be sued in a
representative capacity before the grant is extracted?

Held: a person who has obtained a grant of letters of administration but who has not extracted
such grant cannot be sued in a representative capacity. It is the grant that is under seal and not
the order of the Court that the grant should be issued which confers the status.

Application: based on the given fact, Chan issued a writ against Choy for an order to vacate a
premise belonging to the estate on 4 November 2019. But up to the date of the issuance of the
writ Chan had not extracted the letter of administration. By virtue of section 8 of CLA, Chan may
in his capacity as an administrator of Ah Moi’s estate issue a writ to Choy to vacate the estate
belonging to the deceased. But nevertheless, he cannot sue Choy before letters of
administration are extracted. As in the case of Ang Hoi Yin v Sim Sie Hau, although Chan had
been granted the letter of administration, no power to sue as administratrix because he had not
extracted the grant of letters of administration. Therefore, his suit against Choy may be legally
void.

If Chan was an executor, can he issue a writ against Choy for an order to vacate a premise
belonging to the estate before the letter of administration is extracted?

An executor can sue with his cause of action even if the grant of probate has not been extracted
because he derives his title and authority from his will of testator and not from any grant of
probate. His right to sue arose at the time of the testator’s death.

Case: Meyappa Chetty v Subramaniam (1916), it was held that the executor can commence a
suit before the grant of probate is out because the right to sue is vested upon him immediately
after the testator died.

Application: Chan may issue a writ of action even if the grant of probate has not been extracted
because he derives his title and authority from the testator’s will and not from any grant of
probate as in the case of Meyappa Chetty v Subramaniam.
QUESTION 4

Maniam met with an accident with a lorry driven by Samy in October 2004. Maniam survive the
accident. However Samy who initially survived the accident died six months later due to injuries
that he sustained during the accident. Samy was in the state of coma until his demised. Maniam
now wishes to sue Samy’s estate for Samy’s negligence. Advise Maniam on the course of
action in initiating a civil proceeding against Samy’s estate.

(20 marks)

ANSWER:

Issue:

The issue is whether Maniam can sue Samy’s estate for the negligence caused by the
deceased, Samy and the course of action in initiating the process.

Law:

● Upon death of the deceased, action against the estate of the deceased shall vest on the
appointed personal representatives upon obtaining the grant of representation namely
the executor or the Administrator.
● Section 8(1) of the Civil Law Act provides for the survival of action on death in favour
of the deceased.
● However, Section 8(3) of the Civil Law Act provides that no action against the estate
of the deceased person in tort can be taken unless the action is pending at the date of
his death or the action is taken not later than 6 months after his personal representative
took out representation. So, in order for the administrator of the estate to sue or be sued,
a letter of administration that grants the power to a person to administer the estate, has
to be extracted first.

● Lee Lee Cheng v Seow Peng Kwang [1960] 26 MLJ 1-

The Plaintiff is the widow and administrator of the estate of Gooi Kim Kwan (GKK). She
was suing the defendant, who is the administrator of one Loke Ta Poh (LTP) for
damages for negligent driving. The defendant claimed that the Plaintiff’s action was not
commenced before the expiration of 6 months from the date on which the defendant
 took out representation to the estate of LTP and the Plaintiff’s action was statute-barred
pursuant to Sec 8(3)(b).

Letter of administration to the estate of GKK was granted to the Plaintiff on february
1957 and grant was extracted on november 1957. Letter of administration to the estate
of LTP was granted on 4/11/1956 and the grant was extracted on 8/8/1957.

Held: pursuant to Sec 8(3)(b) of LA- plaintiff’s action was statute barred because the
action was instituted on 17/2/1958. The time run against the Plaintiff to bring an action
from 8/8/1957, the day the grant was extracted.

● Order 15, Rule 6A provides for the proceedings against estates. The purpose of this
rule is to overcome the difficulties of suing the estate of a person who had died before
the commencement of the action and in whose estate no grant of probate or of
administration had been made. There is no person to sue.
● The action is brought against ‘the personal representative of AB deceased’ whether a
grant of probate has been made or letters of administration in the estate of AB deceased
have been extracted before the issue of the writ. The action is treated as having been
brought against his estate.
● The issuance of the writ stops time from running against the plaintiff. There is of course
at this stage no person on whom the writ can be served. The writ will presumably be
allowed to be issued although no address of the defendant is or can be given at the time
of its issue.
● If in that time, a grant of probate or administration has been made, the person to be
appointed will be the executor or administrator. The court may make such an order on its
own motion at any stage of the proceedings and on such terms. (Order 15 r6A(4)(b) i.e.
the personal representative of the deceased’s estate to be substituted.)
1. An action can be brought against the estate of the deceased by naming the
defendant as the personal representatives of the deceased.
- During the validity for service of the summons, apply to the court for an
order appointing a person to represent the estate of the deceased.
- He must apply for the court order to serve notice to be given to any
insurer of the deceased who has an interest in the proceedings and to
any person having an interest in the estate if any as it thinks fit.
 - The notice will be served to the personal representatives where the
plaintiff had applied to the court to appoint such person for accepting
service. O.15 r.6A(4)(a)
2. The court may appoint an official administrator to represent the estate only for
accepting service. O15 r,6A (5A).
3. Where the grant of probate of LA had not been made, any judgement or order
given or made in the proceedings shall also bind the estate to the same extent as
it would have been bound if a grant had been made and a personal
representative of the deceased had been a party to the proceeding. O.15, R.6A
(7).

Application:

When applying the law to the present issue, Maniam can sue Samy’s estate provided that he
complied with the requirement under Section 8(3) of the Civil Law Act and hence, Maniam
must bring the action not later than 6 months after Samy personal representative took out
representation. Hence, Maniam may apply to the court for an order appointing a person to
represent the estate of the Samy by virtue of Order 15, rule 6A(4)(a) of the ROC.

QUESTION 5

Nona recently bought a land bearing title number H. S (D) 66746 in the District of Petaling Jaya,
Selangor in a public auction that was conducted by the Land Administrator on the application of
the chargee of the land. On the land stood a house and after the land was transferred in her
name, upon visiting the house she discovered that the house was occupied. Every attempted to
identify the occupant of the house had failed. She instructed you to file an order for vacant
possession of the land. How do you name the defendant in the proceeding?

(5 marks)

ANSWER:
● In the case of Orang-orang Yang Menduduki Rumah Dan Setor-setor Papan Yang
Didirikan Atas Sebahagian Tanah Yang Terkandung Di Bawah Hakmilik Geran No
26977 Bagi Lot 4271 Dalam Bandar Johor Bahru, Johor v. Punca Klasik Sdn Bhd,
the respondent became the registered proprietor of a land. Soon after becoming the
registered proprietor of the land, the respondent found squatters living on the land. The
 respondent’s solicitors issued notices of demand for vacant possession from the
squatters. Upon the failure of the squatters to hand over vacant possession, the
respondent took an action against the appellants under O. 89 of the Rules of the High
Court 1980 (‘the RHC’) to remove them from the land. In the instant appeals, counsel for
the respondents raised a preliminary objection as to the locus standi of the appellants
and their counsel.
● HELD: The court held that Order 89 of the Rules of High Court provides a remedy for
a landowner against a person or persons in unlawful occupation of his land.
● It also provides for special remedies against an illegal or unlawful occupier when he is
unknown or his name is not known to the owner. The court held that the appellants were
unnamed persons at the commencement of the actions in the High Court and the
respondent had followed the correct procedure under O. 89.
● The status of any unnamed person is that he has no identity and no locus standi until he
identifies himself and applies to the court either personally or through his solicitors to be
joined as a defendant.
● Order 89 r. 5 of the RHC provides that any person not named as a defendant who is in
occupation of the land and wishes to be heard on the question whether an order for
possession should be made may apply at any stage of the proceedings to be joined as a
defendant.
● This is a specific provision and has to be complied with before a defendant can be given
the opportunity to be heard. A proper application has to be made to the court and not
merely by the insertion of a name as a party. The failure to do so will not give him the
right to appear and be heard in court.
● In this case, there was no application by any of the unnamed appellants to be joined as
a defendant under O. 89 r. 5 of the RHC or be made a party in accordance with O. 15 rr.
6 or 10. Therefore, there was no named defendant and as such no one could be heard
as a defendant.