INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

END-OF-SEMESTER EXAMINATION
SEMESTER 1, 2016/2017 SESSION

AHMAD IBRAHIM KULLIYYAH OF LAWS

Programme : Bachelor of Laws Level of : Fourth

Study

Reading Time : 9.00 a.m. – 9.15 a.m. Date : 7.1.2017

Duration : ( 15 minutes )

Answering Time : 9.15 a.m. – 12.15 p.m. Section(s) : All Sections

Duration ( 3 hours )

Course Title : Civil Procedure I Course Code : LAW 4210

This Question Paper Consists of 13 Printed Pages With 9 Questions (in 2 sets of fact Scenarios).

INSTRUCTIONS TO CANDIDATES
DO NOT OPEN UNTIL YOU ARE ASKED TO DO SO.

Choose ONE of the scenario and answer all question in the scenario.

REFERENCE(S) ALLOWED
The Rules of Court 2012

Any form of cheating or attempt to cheat is a serious

offence which may lead to dismissal
Statutes should be free from any form of annotations.

APPROVED BY
 SCENARIO 1

Badminton Association of Kuala Lumpur (BAKL), a society, had entered into a

Marketing Agreement with ISM Sdn. Bhd. (ISM) on 15.12.2014 inter alia to promote the

World Junior Badminton Championship 2015 hosted by BAKL. The Marketing

Agreement granted to ISM the sole and exclusive rights of commercial exploitation of all

commercial, promotional, advertising, marketing, and licensing rights relating to the

Championship. The consideration for the grant of such rights was USD 900,000-00 which

was to be paid by the ISM to BAKL in the manner as set out below:

i. One month before the Event... USD 400,000-00

ii. Within one month after the Event... USD 250,000-00

iii. Within two months after the Event... USD 250,000-00

The agreement was prepared by Ker Ani, the Honorary secretary of BAKL, and signed

by Mr. Aku Hero, the president of BAKL, and Min Ah, the Director of ISM. Vide this

Agreement, BAKL has assigned the rights to ISM to organize the World Junior

Badminton Championship ("WJBC") and in consideration thereof the latter was to pay

the former a sum of USD 900,000-00 in the manner as scheduled above.

Three months before the event, ISM issued a cheque dated 15.5.2015 for USD

100,000.00 as part payment with an undertaking to pay the remaining USD 300,000.00

before the Championship. However, after several reminders, ISM only paid the amount a

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week before the Championship. These payments were acknowledged by one Ms. Duet,

the financial officer of BAKL.

The said Championship was successfully organized in August 2015. A month later,

BAKL expected to receive another payment from ISM. Instead they received a letter

dated 25.9.2015 informing them that ISM had as of 1.8.2015 assigned some of the

commercial right to Say Bok Sdn. Bhd. Nevertheless “ISM shall remain the contracting

party with BAKL and be responsible for the terms of the agreement, including the

financial obligations”.

Since the date of that letter, ISM has not made any payment to BAKL. When BAKL

asked for clarification, ISM director, Min Ah, responded by saying that ISM had assigned

their rights to Say Bok Sdn. Bhd. and the Director of Say Bok Sdn. Bhd., Mat Rem, had

given ISM assurance in writing that they would undertake to pay the balance of the

payment.

Not satisfied with the explanation, BAKL, through their solicitors Messrs. Suri & Sari,

conducted a search at the Companies Commission of Malaysia and found that Min Ah

was one of the directors of Say Bok Sdn. Bhd. and that there was a petition filed to

wound up the company.

Instructions

a. Answer the Questions below.

b. All answers must be supported with authorities.

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 QUESTION 1

i. Based on the above facts establish a possible cause of action for BAKL against

ISM Sdn. Bhd. and discuss the appropriate remedy available to them.

(2 Marks)

ii. Since BAKL is a society, identify the appropriate person to represent BAKL.

State your reasons and authority.

(1.5 Marks)

iii. Discuss, with reason and authority, the court that has jurisdiction to hear this case.

(1.5 Marks)

iv. Briefly explain the stages involved in civil litigation and the relevant document/s

to be filed at each stage.

(5 Marks)

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 QUESTION 2

i. Explain to BAKL officers the relevant mode of commencement and describe the

relevant method of service against the other party.

(2 Marks)

ii. Assume that the originating document is filed and served together with a

statement of claim on the other party, explain:

a. how the other party should reply or respond to the two documents;

b. the time limit governing the reply;

c. the consequence/s of failure to reply.

(3 Marks)

iii. Discuss the rules of pleadings that must be taken into consideration when parties

to the suit are preparing the documents.

(2 Marks)

iv. In the event the pleading of the opposite party fails to raise a defence,

a. state the best method to obtain judgment against the party;

b. explain the procedures of application;

c. elaborate on how the proceeding should be conducted if the application is

made at the High Court, and, how it would differ if conducted at the

Subordinate Court.

(3 Marks)
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 QUESTION 3

To prepare the case for trial, based on the above facts, identify and describe the

following:

i. the relevant documents that both parties may rely on as evidence and the

procedure for collecting and gathering documentary evidence, especially the

documents that are in the possession of the other party;

ii. the production of the documents in court and the manner the documents are

adduced as evidence in court;

iii. the relevant witnesses, the procedure for calling of witnesses and the process of

the examination of the witnesses in the presence of a witness statement;

(5 Marks)

QUESTION 4

i. Explain case management and pre-trial case management and describe the stage

in the litigation process at which they are conducted.

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 ii. Explain the legal basis or principle that the court should consider when giving

directions and making appropriate orders at case management and pre-trial case

management.

iii. Based on the above facts, list down two statements of issue to be tried relevant for

the action.

(5 Marks)

QUESTION 5

a) At the end of the Pre-trial Case Management (PTCM), the court sets the case for

trial.

i. Assume that at the date of hearing, the solicitor for the defendant fails to

appear before the court. As the solicitor for the plaintiff, state, with

explanations, the steps you will take to secure the interest of the client.

(2 Marks)

ii. Explain the procedure of “submission of no case to answer” and the

consequence of the failure to make such submission.

(2 Marks)

b) State the relevant order/s that the court may make after the defendant has called

all his witnesses.

(2 Marks)

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c) Assume that the court pronounces the judgment in favour of the plaintiff. State the

relevant mechanism that the defendant(s) may resort to if they are aggrieved by

the decision and describe the procedure involved and the relevant documents to be

filed.

(4 Marks)

OR

d) Assume that the court has pronounced the judgment in favour of the plaintiff.

Advise the plaintiff on the relevant method of enforcing the judgment and the

procedure governing it.

(4 Marks)

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 SCENARIO 2

Amir is an accountant in one of the private companies in Kuala Lumpur. He married

Surihaty, a lawyer, in 2000 but they had no children until she gave birth to a baby girl in

2005. But the baby died a few days later due to lack of oxygen supply during her birth.

After the death of her daughter, Surihaty became mentally disturbed and often talked to

herself. Sometimes she laughed and cried for no reason. The situation became more

serious when Surihaty was involved in a road accident which resulted in her suffering

physical disability as well. She had no other relative except her husband and her brother,

Fatih. Amir, on his part, had taken her to see several doctors and sought traditional

methods to cure her condition. But Surihaty did not show any improvement and instead

she became more traumatized and refused to talk to anyone. She was also diagnosed with

severe depression. For some time Amir accepted his wife’s condition until he met one

Natasya, his former girlfriend, in June 2010.

After a year, Amir and Natasya became very close and Amir shared all his problems with

her thinking that Natasya would help him solve his marital problems. However,

unbeknown to him Natasya had her own plans. Pretending to be nice and caring, she

persuaded Amir to buy her a house and marry her. A year later, Amir decided to buy a

new house for his new love. However, as he did not have enough money then he started

to borrow monies from his friends. When the amount was still insufficient to make the

purchase he decided to persuade Surihaty to sign a personal loan agreement by telling her

that the money would be used for her treatment. Despite her initial reluctance, Amir

managed to get Surihaty’s signature on 20th December 2012, after warning to divorce her

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if she refused to sign. As she was at that time mentally confused due to medication,

Surihaty agreed to sign the loan agreement which was made under her name. Meanwhile,

Fatih who was very concerned about his sister’s condition took her to see Dr Sulaiman, a

psychiatrist. After several meetings and treatments she had with the latter, Surihaty

slowly recovered from her unstable mental condition. In November 2016, she began to

realise how her husband had duped and cheated her as well as having an affair with

another woman. She has now come to see you seeking legal advice.

Based on the above facts, answer the following questions:

QUESTION 1

a. Identify and establish the appropriate cause/s of action available to Surihaty

against the relevant party or parties and the appropriate remedy thereto.

(2 Marks)

b. Determine whether there is any legal restriction for her to sue her husband and to

name Natasya a party to the suit.

(2 Marks)

c. Assuming that Surihaty plans to proceed with an action in court. State the time

limit for her to file the case and the court at which the case should be filed.

Support your answers with authorities.

(2 Marks)

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d. Explain the suitable mode to file the case, the relevant procedure to serve the

relevant documents and the effect of failure to respond to the document/s by the

other party.

(2 Marks)

e. Assuming that the case has been filed and served on the defendant but the

defendant finds that the claims against him contain irrelevant and immaterial

facts. Explain the suitable interlocutory application that can be made in this suit

and the procedure involved.

(2 Marks)

QUESTION 2

a. Assuming the application in question 1 (e) above was not granted. The court has

ordered the case to go for full trial but as a solicitor for the plaintiff, you do not

have sufficient evidence and need more documents and information to prepare the

case for trial. Explain the suitable method(s) you would adopt for this purpose.

(2 Marks)

b. After getting the above documents and relevant facts, you were instructed by the

court to attend pre-trial case management (PTCM). Explain its purpose and

procedure, and state the basis for the court to issue any direction.

(2 Marks)

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c. At the PTCM the Deputy Registrar gives direction to file the statement of issue to

be tried and the list of the witnesses for the plaintiff and the defendant. The court

also has fixed the date for trial of the matter.

i. State the main issue to be tried in this action.

ii. Identify the relevant persons you would name as witnesses to support the

above issue to be tried.

(3 Marks)

d. In preparation for trial, the parties are required to prepare several bundles of

documents. State the relevant bundles, their purpose/s and their contents.

(3 Marks)

QUESTION 3

At the trial of the actions:

a. Explain how the presiding judge should conduct the proceeding at trial.

(3 Marks)

b. If the plaintiff has two witnesses and the defendant has one, explain the correct

process of calling these witnesses and the process of examining them.

(3 Marks)

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c. State whether your answer in examining the witnesses above would be any

different if the witness statement has been filed.

(2 Marks)

d. Explain the circumstance/s when a party at the trial may make a submission of no

case to answer and discuss the advantages and disadvantages of such a

submission.

(3 Marks)

e. Explain the effect/s on the proceeding if one party fails to appear before the trial

judge, and the procedure to remedy the situation if the plaintiff fails to appear.

(3 Marks)

QUESTION 4

a. At the end of the trial, the court dismisses the plaintiff’s case. Advise her on the

relevant mechanism and the relevant document/s to file, as well as the time limit

to file the case.

(3 Marks)

b. If the above judgment involves monetary judgment and the defendant (judgment

debtor) fails to comply with the court order to pay the plaintiff (judgment

creditor), explain the suitable procedure for the plaintiff to adopt to enable her to

enforce the said judgment.

(3 Marks)

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