INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

FINAL ASSESMENT IN CONTINUOUS ASSESMENT

SEMESTER 2, 2020/2021 SESSION

AHMAD IBRAHIM KULLIYYAH OF LAWS

ANSWER BOOKLET

Name Ahmad Ali Najhan bin Ahmad Asri

Matric No 1621569
Course Code LAW 4211
Course Title Civil Procedure 2
Section 2
Examiner / Course Instructor Dr. Juriah binti Abd. Jalil
Assessment Date and Time 8.1.2021 (10AM)

QUESTIONS NO: MARKS

A (1)
A (2)
A (3)
B (1)
B (2)
B (3)
Total

INTEGRITY PLEDGE
 Matric No. :
Course Title :
Section No. :

I certify that the attached work is entirely my own except where work quoted or
paraphrased is acknowledged in the text. I also certify that it has not been submitted
for assessment in any other unit or course.

I have not communicated with or sought the assistance from any other students, any
other person or any professional agencies to produce this work.

I agree that AIKOL/IIUM may make and retain copies of this work for the purposes of
marking and review, and may submit this work to an external plagiarism-detection
service who may retain a copy for future plagiarism detection but will not release it or
use it for any other purpose.

By signing this pledge, I acknowledge that as a student in Ahmad Ibrahim Kulliyyah of

Laws, International Islamic University Malaysia, I am expected to conduct myself in a
manner that exemplifies amanah, honesty, integrity, and good akhlaq.

Name Ahmad Ali Najhan bin Ahmad Asri

Matric Number 1621569
Date 8.1.2021

* Plagiarism occurs when a student passes off as the student's own work, or
copies without acknowledgment as to its authorship, the work of any other person.
Collusion occurs when a student obtains the agreement of another person for a
fraudulent purpose with the intent of obtaining an advantage in submitting the final
assessment.

* The Kulliyyah reserved the right to reject the final assessment if the declaration
appearing above is not completed by the student.
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PART A
1.
Section 10(1) of Contracts Act 1950 stated that all agreements are contract if they made
by the free consent of parties competent to contract, for a lawful consideration and with lawful
object and are not hereby expressly declared to be void. Thus, back in November 2018, Pak Bob
entered into a tenancy agreement with En. Kaya to rent his vacant land to set up an open food
court business with monthly rental of RM4,000 for period of 5 years. Under the law of contract,
the tenancy agreement is still valid as both parties had agreed to tenancy agreement. Strictly
speaking under the law of contract, Pak Bob is in breach of the tenancy agreement as he failed to
pay the agreed rental payment.
However, in the light of COVID-19 Pandemic, the government had enacted COVID-19
Act 2020. Section 7 of the Act stated that the inability of any party or parties to perform any
contractual obligation arising from any of the categories of contracts specified in the Schedule to
this Part due to the measures prescribed, made or taken under the Prevention and Control of
Infectious Diseases Act 1988 [Act 342] to control or prevent the spread of COVID-19 shall not
give rise to the other party or parties exercising his or their rights under the contract. Based on
this provision, a Movement Control Order (MCO) was issued by the government of Malaysia on
18 March 2020 to control the spread of COVID-19. Consequently, Pak Bob was affected by the
MCO as his business had to be temporarily closed and was not able to pay the RM4,000 per
month. According to this provision, Pak Bob could challenge the termination of the agreement.
Furthermore, Pak Bob could rely on equitable estoppel to challenge the termination of the
agreement. In the case of Central London Property Trusts Ltd v High Trees House Ltd (1956) 1
All ER 256, Lord Denning essentially held to estop a party, there must be a representation by the
representor, either by words, conduct or silence followed by a reliance on that representation due
to assurance by the representor which resulted in the representee acting to his detriment. In the
current case, En. Kaya accepted the RM2,000 rental payment by Pak Bob for 4 consecutive
months. This act by En. Kaya showed that he had represented by conduct to accept the half
payment of the rental fee and thus had no intention to terminate the agreement.
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2.
The current issue is whether Pak Bob will be able to recover the amount of money that he
has spent for the landscape and structures that he has built on the land for his food court business
amounting to RM50, 000.00?
The general rule under promissory estoppel is such money is recoverable as the person
had spent money due to his reliance upon the encouragement of by the other party. In the case of
Paruvathy D/O Murugiah v Krishnan S/O Doraisamy (1983) 2 MLJ 121, the court held that the
basis of proprietary estoppel is to protect the person who has expended money because of his
reliance upon the encouragement by the other. Also in the case of Ramsden v Dyson (1866) LR 1
HL 129, Lord Kingsdown dissenting on the facts said, the rule of law applicable to the case
appears to me to be this; if a man, under a verbal agreement with a landlord for a certain interest
in land, or what amounts to the same thing, under an expectation, created or encouraged by the
landlord, that he shall have a certain interest, takes possession of such land, with the consent of
the landlord, and upon the faith of such promise or expectation, with the knowledge of the
landlord, and without objection by him, lays out money upon the land, a Court of equity will
compel the landlord to give effect to such promise or expectation. Section 74(1) of Contracts Act
1950 provided that, when a contract has been broken, the party who suffers by the breach is
entitled to receive, from the party who has broken the contract, compensation for any loss or
damage caused to him thereby, which naturally arose in the usual course of things from the
breach, or which the parties knew, when they made the contract, to be likely to result from the
breach of it.
Therefore, as En. Kaya gave a notice to terminate the agreement and to vacate the
premise within a month, Pak Abu is entitled to be compensated for the money he has spent for
the landscape and structures that he has built on the land for his food court business amounting to
RM50, 000.00 as Pak Abu had lost his source income which incurs loss on his part by virtue of
Section 74(1) of Contracts Act 1950.
In conclusion, Pak Abu will be able to recover the amount of money that he has spent for
the landscape and structures that he has built on the land for his food court business amounting to
RM50, 000.00.
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3.
The COVID-19 Act aims to provide temporary measures to reduce the impact of
COVID-19 by modifying relevant existing provisions to ease the day to day operation of the
nation and the public as a whole. Section 7 of the Act stated that the inability of any party or
parties to perform any contractual obligation arising from any of the categories of contracts
specified in the Schedule to this Part due to the measures prescribed, made or taken under the
Prevention and Control of Infectious Diseases Act 1988 [Act 342] to control or prevent the
spread of COVID-19 shall not give rise to the other party or parties exercising his or their rights
under the contract. The schedule of Section 7 includes lease or tenancy of residential immovable
property under its purview.
Therefore, based on this provision, Pak Bob is protected from the termination of his
tenancy with En. Kaya in the light of this unprecedented time. Pak Bob is able to continue his
business operation to generate his income.
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PART B
1.
(i) Order 10, Rule 1(1) of Rules of Court 2012 provide that a writ shall be served personally
on each defendant or sent to each defendant by prepaid A.R registered post addressed to his last
known address of in so far as is practicable. Order 62, Rule 4 of Rules of Court 2012 further
provide that where an action is against a corporation, the writ may be served, (a) by leaving copy
of it at the registered office (if any) of the corporation; (b) by sending a copy of it by registered
post addressed to the corporation office, or if there are more offices than one at the principal
office at the corporation, whether such office is situated within Malaysia or elsewhere.
Yet, Order 10, Rule 3(1)(b) of Rules of Court 2012 provide that, where the contract
provides that, in the event of any action in respect of the contract begin begun, the process by
which it is begun may be served on the defendant, or on such other person on his behalf as may
be specified in the contract, in such manner or at such place (whether within or out of
jurisdiction) as may be so specified.
Therefore, the defendant had agreed in the facility agreement that the contractual address
is to be used when any notice and legal process is to be served and the plaintiff was proper in its
action to serve the writ at the contractual address per agreed in the facility agreement.

(ii) It is a good service as it has been agreed by both parties in the facility agreement that the
contractual address is to be used when any notice and legal process is to be served and such
service is also in accordance with Order 10, Rule 3(1)(b) of Rules of Court 2012 whereby if an
action in respect of contract is begun in the court and the writ by which it is begun is served in
accordance with the contract, the writ shall be deemed to have been duly served on the
defendant. Thus, it is indeed a good service.

(iii) The judgment is regular as the plaintiff was not contractually bound under the facility
agreement to produce AR cards even if service of writ was affected by AR registered post.
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Irregular judgment cannot be corrected and unenforceable as it involves the legal right of
the party. Thus, such judgment can be set aside as of right without the need to show the defense
of merits pursuant to Order 13, Rule 8 of Rules of Court 2012.

(iv) Order 42, Rule 13 of Rules of Court 2012 provide that the time limit to set aside a
judgment in default is within 30 days after the receipt of the judgment.
Yes, the application should be allowed as Order 42, Rules 13 of Rules of Court 2012
empowers the court to set aside or vary a judgment. In the case of Philip Securities (PTE) v Yong
Tet Miaw (1988) 3 MLJ 61, the court held the plaintiff’s application should be allowed to amend
the judgment rather than setting aside the judgment in default.
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2.
(i)(a) Order 24, Rule 3 of Rules of Court 2012 provide that order for discovery may be made if
the documents on which the party relies or will rely and the documents which could (i) adversely
affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s
case. Thus, the order for discovery can be made to obtain the Guideline No. 576 from KKM.

(i)(b) Order 24, Rule 12 of Rules of Court 2012 stated that at any stage of proceedings in any
cause or matter, the court may order any party to produce to the court any document in his
possession, custody or power relating to the (a) documents on which the party relies or will rely;
(b) documents which could adversely affect the party’s case or support a party’s case and (c)
documents which may lead to series of inquiry resulting in the obtaining of information which
may adversely affect a party’s case or support a party’s case. Therefore, the relevant procedure to
cure the situation is by requesting the court for an order for production to court.

(i)(c) Order 40A, Rule 5(1) of Rules of Court 2012 provide that the court may at any stage,
direct a discussion between experts for the purpose of requiring them to (a) identify the issues in
the proceedings; and (b) where possible, reach agreement on an issue. Order 40A, Rule 5(2) of
Rules of Court 2012 stated that the court may specify the issues which the expert shall discuss.
Order 40A, Rule 5(3) of Rules of Court 2012 further provide that the court may direct
that following a discussion between the experts, they shall prepare a statement for the court
showing (a) the issues on which they agree; and (b) the issues on which they disagree and a
summary of their reasons for disagreeing.
Thus, these are the procedure by which Dr. Saikur and Dr. Ramesh need to adhere
regarding their discussion.

(i)(d) Order 40A, Rule 3(2) of Rules of Court 2012 provide that an expert’s report shall (a) give
details of the expert’s qualification; (b) give details of any literature or other materials which the
expert witness has relied on in making the report; (c) contain a statement setting out the issues
which he has been asked to consider and the basis upon which the evidence was given; (d) if
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applicable, state the name and qualification of the person who carried out any test or experiment
which the expert has used for the report and whether or not such test or experiment has been
carried out under the expert’s supervision; (e) where there is range of opinion on the matters
dealt with in the report summarize the range of opinion and give reasons for his opinion; (f)
contain a summary of the conclusions reached; (g) contain a statement of belief correctness of
the expert’s opinion; and (h) contain a statement that the expert understands that in giving his
report, his overriding duty is to the court and that he complies with that duty.
Consequently, these are the important points that need to be included in the witness
statement of Dr Saikur by virtue of the said provision.

(ii)(a) The objection can be taken on the witness statement based on the principle of leading
question. Section 141 of Evidence Act 1950 defines leading question as any question suggesting
the answer which the person putting it wishes or expects to receive or suggesting disputed facts
as to which the witness is to testify. In the current case, the leading question occurs when witness
is asked whether the plaintiff has a good case against the defendant.
Furthermore, Section 142 of Evidence Act 1950 stated that leading questions may not be
asked if objected to by the adverse party, be asked in any examination-in-chief or in re-
examination except with the permission of the court. Yet, the court shall permit leading questions
as to matters which are introductory or undisputed or which have in its opinion been already
sufficiently proved.
Moreover, Section 143 of Evidence Act 1950 provide that leading questions may be
asked when the question may not put into mouth witness the very words which he is to echo back
again and the question may not assume that facts have been proved which have not been proved,
or that particular answers have been given contrary to the fact. However, the court in its
discretion may prohibit leading questions from being put to a witness who shows a strong
interest or bias in favor of the cross-examining party.
Nonetheless, Section 153 of Evidence Act 1950 provide on exclusion of evidence to
contradict answers to question testing veracity whereby no evidence shall be given to contradict
the witness when he had been asked and answered any question which is relevant to the inquiry
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only so far as it tends to shake his credit by inquiring his character, but if he answer falsely, he
may afterwards be charged with giving false evidence.

(ii)(b) Section 145 of Evidence Act 1950 provide on cross-examination as to previous statement
in writing whereby the witness may be cross-examined as to previous statements made by him in
writing or reduced into writing and relevant to matters in question in the suit or proceedings in
which he is cross-examined, without the writing being shown to him or being proved. But if it is
intended to contradict him by the writing, his attention must, before the writing can be proved, be
called to those parts of it which are to be used for the purpose of contradicting him.
Furthermore, if a witness upon cross-examination as to a previous oral statement made by
him relevant to matters in question in the suit or proceedings in which he is cross-examined and
inconsistent with his present testimony, does not distinctly admit that he made such statement,
proof may be given that he did in fact make it. But before proof can be given, the circumstances
of the supposed statement which sufficient to designate the particular occasion shall be
mentioned to the witness and he shall be asked whether or not he made such statement.
Moreover, Section 146 of Evidence Act 1950 further provide that questions during cross-
examination may include questions which tend to (a) test his accuracy, veracity or credibility; (b)
discover who he is and what is his position in life; or (c) shake his credit by injuring his
character, although the answer to such questions might tend directly or indirectly to criminate
him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
Therefore, these provisions above provide the point that can be effectively used to cross-
examine Dr. Ramesh based on his witness statement.
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(iii)(a) Section 137(3) of Evidence Act 1950 defines re-examination as where a witness has been
cross-examined and is then examined by the party who called him. The purpose of re-
examination is to give the witness an opportunity to explain any matters raised during cross-
examination and is therefore limited to only those matters that were raised during cross-
examination.
Furthermore, Section 138(3) of Evidence Act 1950 provide on the criteria of question
allowable to be asked during re-examination whereby it shall be directed to the explanation of
matters referred to in cross-examination and if new matter is, by permission of the court,
introduced in re-examination, the adverse party may further cross-examine upon that matter.

(iii)(b) Order 34, Rule 2 of Rules of Court 2012 provide on the procedure to tender evidence in
Part A and Part B of the Common Bundle of Documents. The contents of the bundle of
documents shall be agreed on between all parties as far as possible and this bundle of agreed
documents shall be filed by the plaintiff and marked as part A.
Furthermore, if the parties are unable to agree on certain documents, those documents on
which agreement cannot be reached shall be included in separate bundles whereby Part B of the
bundle shall include the documents where the authenticity is not disputed but the contents are
disputed.
Moreover, the documents contained in the bundle shall be arranged chronologically or in
some logical order and shall be paginated. Care shall be taken to avoid duplication within the
same bundle. Also, the contents and format of every bundle of documents shall comply with the
requirements laid down in any practice direction for the time being issued.
In addition, any party may apply at any time to the court for directions as to filing,
bundling and organization of documents intended to be used at the trial of the action and on such
application, the court may make such order to give such direction as is necessary to achieve the
just, expeditious and economical conduct of the trial of the action.
Thus, the provision above provides the step-by-step procedure of tendering documents in
Part A and Part B of the Common Bundle of Documents.
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(iii)(c) Hypothetical question is question of law which does not affect the outcome of dispute
between the parties in court or affect the legal right of a party in dispute. Such question bears no
relevance to the parties in dispute nor does it have any practical use in the current dispute, even
though it might have solved a potential dispute in the future.
Furthermore, the example of hypothetical question is as follows; “Do you have an
opinion, also to a reasonable degree of medical certainty, as to whether or not the disability
caused by MRSA bacteria is permanent?”.
The hypothetical question above has no effect on the current dispute or the legal right of
the party in the dispute. It is merely used for approving or disproving theories.
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3.
(a) A fresh suit should be filed at the correct court which is at the Kuala Lumpur
Construction Court. In the case of Datuk Bandar Kuala Lumpur v Seman bin Amat (1996) 2 CLJ
265, the court held that the word “shall” in Order 6, Rule 2 is mandatory as it is a condition
precedent that a notice of appeal be filed and served before an appeal can be said to have been
properly brought. By filing at the wrong registry, no appeal is brought within the meaning of
Order 6, Rule 2, and as such, the jurisdiction of the Judge in Chambers is ousted, and it will be
illegal for the said judge to carry on hearing the so-called appeals.
Furthermore, in any case, the filing done in the wrong court registry is fundamentally
wrong and that by itself gives the court power to set aside the application pursuant to Order 2,
Rule 1(2) of the Rules of Court 2012. Therefore, a fresh suit at Kuala Lumpur Construction
Court needs to be filed.

(b) The suit will not be filed on 13 December 2020 but will be filed on the next working day.
Order 3, Rule 4 of Rules of Court 2012 stated that where the time prescribed by these Rules, or
by any judgment, order or direction, for doing any act at the Registry expires on a weekly
holiday or other day on which the Registry is closed, and by reason thereof that act cannot be
done on that day, the act shall be in time if done on the next day on which the Registrar is open.
Therefore, as 13 December 2020 is on Sunday, the Registrar is closed, and any business
could not be conducted when the Registrar is closed regardless of any judgment, order or
direction. Consequently, the suit will not be filed on 13 December 2020.

(c) After the Registrar dismissed the suit, a fresh suit needs to be filed at the correct court
which is at Kuala Lumpur Construction Court pursuant to Order 5, Rule 1 of Rules of Court
2012. Order 5, Rule 2 of Rules of Court 2012 further provide that proceedings in which a
substantial dispute of fact is likely to arise shall be begun by writ.
Furthermore, the writ should be endorsed before issuance of writ in pursuant of Order 6,
Rule 2 of Rules of Court 2012. Subsequently, Order 6, Rule 6(2) of Rules of Court 2012 stated
that the writ should be issued to the Registrar the original copy and a copy together with as many
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copies thereof as there are defendants to be served. The writ is deemed to be issued when the
Registrar had assigned a serial number, signed, sealed and dated the writ pursuant to Order 6,
Rule 6(3) of Rules of Court 2012. The writ is valid in the first instance for 6 months beginning
with the date of its issuance according to Order 6, Rule 7(1) of Rules of Court 2012.