Practice 13 and Procedure INTRODUCTION DECISIONS AND COMMENTS LIMITATION (a) Isa claim barred by limitation revived by a subsequent amendment of a law? Kenderaan Bas Mara v Yew Bon Tew & Anor FC (b) Limitation against a plaintiff who is in possession of land as an equitable owner. Munah v Fatimah () Acknowledgment under section 26(2) cf the Limitation Act, 1953 Pleading an acknowledgment. (i) KEP Mohamed Ali v KEP Mohamed Ismail FC (ii) Mat bin Lim & Anor v Ho Yut Kam & Anor ‘MODES OF ORIGINATING PROCESS (a) Application for a perpetual injunction Re Court Hill Canteen: Government of Malaysia v Wan Esah (b) Application under written law Nanyang Development (1966) Sendirian Berhad v How Swee Poh (©) Whether writ or originating summons is the appropriate mode Pesuruhjaya Ibu Kota Kuala Lumpur v Public Trustee & Ors SETTING ASIDE A REGULAR JUDGMENT IN DEFAULT OF APPEARANCE Bank Bumiputra Malaysia Bhd v Majlis Amanah Ra’ayat FC PARTIES (a) Relator action Attorney-General at and by the relation of Pesuruhjaya Ibu Kota, Kuala Lumpur v Wan Kam Fong & Ors (b) Suits by local authorities to abate a public nuisance Majlis Perbandaran Pulau Pinang v Boey Siew Than & Ors FC (©) Suits by beneficiaries on behalf of an estate of a deceased person Eh Riyid v Eh Tek (a) Power to add new parties Federal Flour Mills Ltdv Owners of the Vessel ‘Ta Tiong’ & Anor. SUMMARY JUDGMENT (a) Delay in applying for summary judgment Application after de- fence has been served Comptroller-General of Inland Revenue Malaysia v Weng Lok Mining Co Ltd The Introduction and Comments to this Chapter are contributed by Associate Professor P Balan LLB LLM (London), Barrister-at-law, Lecturer, Facutly of Law, University of Malaya. 785PRACTICE AND PROCEDURE (b) Unconditional leave to defend if there is a triable issue United Malayan Banking Corporation Berhad v Palm and Vegetable Oils (M) Sdn Bhd & Ors FC ses involving a short matter of construction Esso Standard Malaya Bhd v Southern Cross Airways (Malaysia) Bhd involving the interpretation of a statute Fadzil bin Mohamed Noor v Universiti Teknologi Malaysia FC (c) Summary judgment against a third party in third party proceedings Central Securities (Holdings) Bhd vy Haron bin Mohamed Zaid FC () Power to enlarge time for filing of appeal against an Order 14 judgment. Distinction between Order 14 judgment and a judg- ment in default. Eu Hoong Chwee v Chua Say Tiong PLEADINGS (a) Trial judge should not decide on an issue not raised in the pleadings The Chartered Bank v Yong Chan FC (b) Defective indorsement cured by a proper statement of claim Khoo Kay Hock v EJ Ketting & Ors (c) Amendment of pleadings Grant Advertising International Inc & Anor v Glaze STRIKING OUT PLEADINGS (a) Application to strike out should be prompt. Position where pleading is defective only in not containing particulars Malayan Banking Berhad v Gan Kong Yam (b) Striking out only in plain and obvious cases (i) Mooney & Ors v Peat Marwick, Mitchell & Co & Anor Gi) Shanghai Hall Ltd v Chong Mun Foo & Ors DISCONTINUANCE OF AN ORIGINATING SUMMONS Overseas Union Finance Ltd v Lim Joo Chong INJUNCTIONS (a) Jurisdiction of the High Court to grant a mareva injunction Zainal Abidin bin Haji Abdul Rahman v Century Hotel Sdn Bhd (b) Application for an interlocutory injunction Caltex Oil Malaysia Ltd v Tee Than Song (c) Application to dissolve an ex parte injunction Gan Realty Sdn Bhd & Ors v Nicholas & Ors (d) Jurisdiction to grant a temporary injunction is a matter of discretion Vethanayagam v Karuppiah & Ors STAY OF PROCEEDINGS Board of Governors of Sekolah Menengah St Gabriel v Ranjit Singh CONTEMPT OF COURT Loot Ting Yee v Tan Sri Sheikh Hussain bin Sheikh Mohamed & Ors FC CERTIORARI Application for leave to apply for an order of certiorari Mohamed Nordin bin Johan v Attorney-General, Malaysia FC 786INTRODUCTION CONSENT ORDERS (a) Application to set aside a consent order not drawn up and perfected Chew Kong Kah v Cheu Kuan Cheng (b) Application fo vary a consent order drawn up and perfected Ganapathy Chettiar v Lum Kum Chum & Ors: Menachi v Lum Kum Chum & Ors FC TRIAL (a) Absence of a party when a trial is called on Buga Singh v Koh Bon Keo (b) Power of the court to restrain abuse of the issue of the subpoena ad testificandum Ismail v Hasnut, Abdul Ghafar v Hasnul FC (c) Cross-examination of a person other than a deponent to an affidavit Gomez v Gomez APPEALS (a) Interference with a trial judge’s findings of fact Samar binte Mansor v Mustafa Kamarul Ariffin (b) Relying on a ground not pleaded in the court below Ho Kean v Kong Lai Soo FC (c) Failure by trial judge to specify grounds of judgment Tan Kim Leng & Anor v Chong Boon Eng & Anor FC (d) Mode of service of notice of appeal on respondent. Application for extension of time to serve notice of appeal. Hoe Joo Sawmills v Sigma (Air Conditioning) Sdn Bhd FC EXECUTION (a) Exercise of the discretion to grant a stay of execution Leong Poh Shee v Ng Kat Chong (b) Appeal against an order for an unconditional stay of execution Menon v Abdullah Kutty FC INTRODUCTION A judge during his tenure on the bench has to decide on a number of procedural questions. His Royal Highness Sultan Azlan Shah had more than an ample share of procedure cases for his consideration during his years as Judge, Federal Judge, Chief Justice and Lord President. History will probably give the most prominent place to His Royal Highness’ decision in Zainal Abidin v Century Hotel.’ This case saw the dramatic entrance of the Mareva injunction into our jurisdiction. But the contributions of this former illustrious member of the Malaysian judiciary embraces almost all aspects of procedure from such prelimi- nary issues as limitation to the final matters of appeal and execution. Each case is an example of the Sultan’s clarity of expression and His Royal Highness’ wide and sound understanding of civil procedure. +1982] 1 MlJ 260. 787PRACTICE AND PROCEDURE It is not possible in this brief Introduction to comment on all of His Royal Highnes: Sultan’s contribution to the development of our case law on civil procedure is significant and immense. In this volume alone forty-one of his decision on procedural matters are included. Not all of them involved cases on civil procedure. Suffice to the consideration of novel points of law but they are useful additions to our procedural law as an available source of Malaysian authorities to replace the English cases on which they are based. Some cases will, however, remain leading authorities reference is made to a few of them below. and a brief In the area of limitation and the pleading of an acknowledgment His Royal Highness’ decision in KEP Mohamed Ali v KEP Mohamed Ismail* was adopted and applied by the Privy Council in Oversea-Chinese Banking. Corporation v Philip Wee Kee Kuan.’ A good number of important decisions on summary judgments under Order 14 was handed down by His Lordship. At least two of them lay down important principles. In Esso Standard Malaysia v Southern Cross Airways! His Royal Highness ruled that short matters of construction of a few documents should not make a case unsuitable for summary trial. Similarly in Fadzil v Universiti Teknologi Malaysia’ which involved the construction of a statute Raja Azlan Shah CJ (as he then was) said: In Esso Standard Malaysia Bhd v Southern Cross Airways (M) Bhd | pointed out that in an Order 14 case, where it turned on the construction of a few documents, and the court was only concerned with what, in its judgment, was the true construction, there could be no reason to go formally to trial where no further facts could emerge which would throw any light on the documents that had to be construed. We think we can safely apply that principle to the present case. On the view we have taken of the construction of Act 30 of 1971, and the Constitution of the University, the University had an absolutely hopeless case. The only function of the court is jus dicere and to ascertain the intention of Parliament from the words used in the statutes and nothing more. No useful purpose would then be served to go formally to trial.® Some of His Royal Highness’ other notable decisions are Attorney- General at and by the relation of Pesuruhjaya Ibu Kota Kuala Lumpur v Wan Kam Fong’ (relator actions), Central Securities (Holdings) Bhd v Haron bin Mohamed Zaid® (summary judgment against a third party), Gomez v Gomez? (cross-examination of a person other than a deponent to an affidavit), Mooney & Ors v Peat Marwick & Co & Anor'® (striking off), Hoe Joe Sawmills v Sigma (Air Conditioning) Sdn Bhd" (mode of 2(1981] 2 MIJ 10. s[1984] 2 MLJ 1 “(19721 1 MIJ 168, 51981] 2 ML 196. SAt page 199. *{19671 2 Mlj 72. [1979] 2 MIJ 244. 8{1969] 1 MIJ 288. '°[1967] 1 MI 87. '4[1979] 2 MLJ 236. 788INTRODUCTION service of notice of appeal and discretion to extend time for service) and Ismaily Hasnat? (power of the court to restrain abuse of the issue of the Subpoena ad testificandum). An important point to bear in mind is that most of His Royal Highness’ cases were decided when the Rules of the Supreme Court 1957 were in force. the 1957 Rules were replaced by the Rules of the High Court 1980 on June 1, 1980. His Royal Highness’ cases display a liberal approach to the interpret- ation of the Rules and practice. His Highness was not one for permitt- ing technical points to deny justice to a party’. In KEP Mohamed Ali v KEP Mohamed Ismail" although the plaintif?’s claim was statute barred on April 11, 1974 there had been an acknowledgment of the debt in 1976. The acknowledgment was not pleaded in the statement of claim or in the reply but the case was satisfactorily presented and developed in the proceedings before the High Court from which a decision to that effect could be arrived at. His Royal Highness in delivering the judg- ment of the Federal Court said: As one of the objects of modern pleadings is to prevent surprise, we cannot for one moment think that the defendant was taken by surprise. To condemn a party on a ground of which no material facts have been pleaded may be as great a denial of justice as tc condemn him on a ground on which his evidence has been improperly excluded.!* By this the Sultan must not be assumed to be indifferent to instances of non-compliance with procedure. The Sultan’s firm attitude for comp- liance of settled procedure is evident from many of His Highness’ cases.'7 In the Chartered Bank case Raja Azlan Shah (as he then was) sai If we are to maintain a high standard in our trial system, it is indubitably not to reliance upon forms of pleading as pedantry or mere formalism."® Zainal Abidin’s case" indicates His Royal Highness’ bold stand over the need to incorporate modern trends and ideas into our law. His Royal Highness in delivering the judgment of the Federal Court said: In this country we encourage greater foreign participation and invest- ment in development projects. In such a situation where foreign busi- nessmen including foreign multinational corporations have injected 2/1968] 1 MIJ 108. 18S¢¢ for instance Federal Flour Mills Lid v Owners of the Vessel “Ta Tung” & Another [1970] 2 MLJ 147. “See for example Khoo Kay Hock v Keating [1978] 2 MIJ 57. "Supra. Wat page 12. '7Se¢ for instance Attorney General at and by the relation of Pesurohjaya Ibu Kota, Kuala Lumpur v Wan Kam Fong (1967] 2 MlJ 72. and Chartered Bank v Yong Chan {1974] 1 MIJ 157. *[1974] 1 MLJ 157, 159. *9[1982] 1 MLJ 260. 789PRACTICE AND PROCEDURE large sums of money and have substantial assets in this country, it would be a potential vehicle of injustice if the plaintiff is denied the facilities afforded by a Mareva injunction against the foreign defaulter who may try to dissipate his funds and assets in this country. It is significant that in other jurisdictions the Mareva principle has been adopted. The existence of the Mareva jurisdiction has been affirmed in New Zealand and Australia, except New South Wales (see Hunt v BP Exploration Company (Libya) Ltd). In Singapore, the existence of the jurisdiction has been acknowledged, although there is as yet no judicial pronouncement upon it (see [1981] 2 MLJ cvii). We have a good deal of commercial activity involving foreign parties and the application of the Mareva doctrine is likely to play an important role. It is an extremely useful addition to the judicial armoury and is clearly capable of general application.” Some may criticise the decision as probably contrived to import the Mareva doctrine, but regardless, the Mareva injunction is here to stay. On rare occasions one may find a point or two to criticise His Royal Highness Sultan Azlan Shah’s decisions on civil procedure, but no one will deny that His Highness has enriched the judge made law in this area of Malaysian law. DECISIONS AND COMMENTS LIMITATION (a) Isa claim barred by limitation revived by a subsequent amendment of the law? Kenderaan Bas Mara v Yew Bon Tew & Anor [1980] I ML 311 Federal Court, Kuala Lumpur Coram: Raja Azlan Shah CJ (Malaya), Chang Min Tat and Syed Othman FJ) Cases referred to:- (1) The Ydun [1899] P 236, CA. (2) Maxwell v Murphy (1957) 96 CLR 261. (3) Rex v Chandra Dharma [1905] 2 KB 335. (4) Hamilton Gell v White [1922] 2 KB 422. (8) Director of Public Works v Ho Po Sang [1961] 2 All ER 721. (6) Free Lanka Insurance Co Ltd v Ranasinghe {1964| 1 All ER 457. (7) JS Drinkhall v Nam Hue Motor Hiring (1955| ML 119. (8) Raman Kurup v Chappan Nair AIR (1918) Mad 86. (9) Appasami Odayar v Subramanya Odayar (1888) LR 15 1A 167. RAJA AZLAN SHAH CJ (MALAYA) (delivering the judgment of the Court): Paragraph (a) of section 2 of the Public Authorities Protection 2°At page 263. 790LIMITATION Act, 1948 which provided that action shall not lie or be instituted ‘unless it is commenced within twelve months next after the act complained of,’ was amended with effect from June 1974 by section 2 of the Public Authorities Protection (Amendment) Act, 1974 (Act A252) by the deletion of the words ‘twelve months’ wherever appearing in paragraph (a) of section 2 and substituting therefor the words ‘thirty- six months’, In March 1975 the respondents brought an action for damages for personal injuries sustained by both of them in a motor accident that took place in April 1972. The question for decision in this appeal is whether the claim which was commenced after the expiry of the twelve months for bringing the action and therefore barred could be revived by the extended period of thirty-six months in the Act. The learned judge expressed a view to which we are not prepared to subscribe. He answered the question in the affirmative. It is necessry to quote in exfenso his reasoning: But the writ is issued after amendment when the period of limitation has been increased from twelve to thirty-six months. The writ is filed within thirty-six months from date of accident. Since the amending Act is purely procedural and therefore retrospective, the limitation law applicable when the writ was issued on March 20, 1975, is the amended Public Authorities Protection Act, and since the period of thirty-six months has not lapsed from the date of accident, I hold that the claim is not time- barred. The pertinent question for determination is the nature of Act A252 ~ does it affect rights or procedure. An Act which makes alteration in procedure only is retrospective: see The Ydun. In our view there are no cases upon which differences of opinion may more readily be entertained, or which are more embarrassing to dispose of, than the cases where the court has to decide whether or not an amending statute affects procedure and consequently will operate retrospectively or affects substantive rights and therefore in the absence of a clear contrary intention, should not ke read as acting retrospec- tively. ‘The distinction between procedural matters and substantive rights must often be of great fineness. Each case therefore must be looked at subjectively; there will inevitably be some matters that are classified as being concerned with substantive rights which at first sight must be considered procedural and vice versa. The Ydun, supra, was quoted to support the argument that Act A252 is procedural. In our opinion that case proceeded on the basis that it was one of procedure only. On the date of issue of the writ (November 14, 1898) the law in force was the Public Authorities Ptotection Act, 1893 (effective date January 1, 1894) which provided that action must commence by March 1894 which was the date within 6 months next after the act complained of. As the Act deslt with procedure only and therefore had retrospective effect, it applied to all actions commenced after the passing of the procedural statute to enforce rights, whether those rights arose before or after the passing of the statute. Since the 791PRACTICE AND PROCEDURE action was commenced more than 6 months after the date of the act complained of, i.e., September 13, 1893, it was barred. In our opinion the Act dealt only with the mode in which a right of action for damages already existing should be asserted against the public authority. That seems to be in accord with the common law presumption that a procedural amendment is prima facie retrospective. The Act did not affect a vested right adversely. In the case of the latter there is authority to suggest that the general principle is against retrospectivity. It seems to us that the Australian case of Maxwell v Murphy” affords a close analogy. That case dealt with the Australian statutory provisions equivalent to sections 7 and 8 of our Civil Law Act, 1956 (Act 67) on fatal accidents and survival of causes of action. The Compensation to Relatives Act, 1897-1946 (NSW) provided that every action under the Act should be commenced within twelve months of the death of the deceased person. Section 2(a) of the Compensation to Relatives (Amendment) Act, 1953 amended the principal Act as from December 16, 1953 by providing that the words ‘twelve months’ be omitted and the words ‘six years’ inserted, On November 30, 1954, the plaintiff brought an action in respect of the death of her husband on March 19, 1951. The substantive right in that case was the right to bring an action within twelve months. On the expiry of that time, the right to bring the action lapsed and as a result there remained no substantive right. Consequently it was held that the amending statute did not apply to actions which prior to the amendment were statute- barred. It can thus be seen that an Act which seemingly could otherwise be described as procedural and therefore have retrospective effect will not be so regarded if to do so would have the effect of depriving a party toa cause of his right of action. Williams, put it admirably at pages 277- 278: Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging, the time for its institution could hardly be described as merely pro- cedural. They would affect substantive rights. We are satisfied that Act A252 is not truly procedural but affects vested 792LIMITATION, rights. We say this because we are of the opinion that the Act is an amendment of a provision which operates to extirpate a liability and not merely to deny the procedure for the enforcement of a liability which nevertheless continues to subsist. Where as here a statute affecting, procedure also affects vested rights adversely, it is to be construed as prospective. The case of Rex v Chandra Dharma,® which was relied upon by the learned judge, is to the same effect. In that case the prosecution had been commenced before the first time-bar had expired. But ‘if the time under the old Act had expired before the new Act came into operation the question would have been entirely different, and in my view it would not have enabled a prosecution to be maintained even within six months from the offence’: per Channell J at page 339. The matter does not end there. As the case must now be judged in prospect and not in retrospect, we must have regard to the trite maxim omnis nova constitutio futuris forman imponere debet non praeteritis’, that unless it is so expressed in the new law, a vested right is not taken away. We see nothing in the language of Act A252 to prevent its application. In any event the maxim is spelt out in the provisions of section 30(1)(b) of the Interpretation Act, 1967 which is as follows: The repeal of a written law in whole or in part shall not “(b) affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed law”. In Hamilton Gell v White the Court of Appeal was concerned with an analogous problem under the language of section 38 of the UK Interpretation Act, 1889. We are well content to quote the language used by Atkin IJ at page 431 in that case: It is obvious that that provision was not intended to preserve the abstract rights conferred by the repealed Act, such for instance as the right of compensation for disturbance conferred upon tenants generally under the Act of 1908, for if it were the repealing Act would be altogether inoperative. It only applies to the specific rights given to an individual upon the happening of one or other of the events specified in the statute Here the necessary event has happened, hecause the landlord has, in view of a sale of the property, given the tenant notice to quit. Under those circumstances the tenant has ‘acquired a right’ which would ‘ac- crue’ when he has quitted his holding, to receive compensation. A passage from the speech of Lord Morris of Borth-y-Gest in the Privy Council Appeal from Hong Kong in Director of Public Works v Ho Po Sang® in considering an analogous section in the Interpretation Ordin- ance of Hongkong is to the same effect (page 731): It may be... that... a right has been given but that, in respect to it, some investigation or legal proceeding is necessary. The right is then unaf- fected and preserved. It will be preserved even if a process of quantific- ation is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. That passage was adopted and applied by Lord Evershed in a Privy 793PRACTICE AND PROCEDURE Council Appeal from Ceylon in the case of Free Lanka Insurance Co Ltdy Ranasinghe.® The material facts are as follows. The respondent was injured while driving a motor car which was in collision with a lorry. ‘The owner of the lorry was insured against third-party risks with the appellants. Section 133 of the Ceylon Motor Car Ordinance of 1938 imposed liability on insurers directly towards injured persons. In March 1950 the respondent commenced action against the owner of the lorry. He also gave the appellants notice of the action as required under the Ordinance. In September 1951 he was awarded damages which were increased on appeal in May 1956. In January 1957 he obtained leave to levy execution. In September 1957 he commenced action against the appellants and obtained judgment. Shortly before the September 1951 judgment the Ordinance of 1938 was repealed and replaced by the Ceylon Motor-Traffic Act, 1951 which contained no transitional provisions designed to preserve rights or claims under the Ordinance of 1938, but section 6(3)(b) of the Ceylon Interpretation Ordinance of 1900 which is in pari materia to section 30(1)(b) of our Interpretation Act, 1967, preserved accrued rights. The appellants contended that the respondent could claim only by virtue of the statute, and, since the Ordinance of 1938 had been repealed, could found his claim only on the Act of 1951, which Act could not, on a fair construction of section 6(3)(b), cover it. It was held that by serving on the appellants of the notice of his claim, the respondent had on the date of the repeal ‘acquired a right’ against the appellants within the meaning of section 6(3)(b) of the Interpretation Ordinance, although that right might fairly be called inchoate or contingent: and therefore the respondent’s right was not affected by the repeal of the Ordinance of 1938. We referred to those cases merely to illustrate how courts in different jurisdictions, with similar legislative provisions on the point, have approached problems of interpretation. The criteria adopted in those cases in the process of determining ‘accrued right’ seem to be this. It must depend on the happening of an event which is specified in the statute. Now, section 2(a) of the Public Authorities Protection Act, 1948 enacted that action must commence within twelve months. That section was designed to govern the rights or persons desirous of asserting claims against public bodies or persons performing public duties, and it controlled also the rights of the public bodies or persons to the limited protection which it conferred upon them. Prospective plaintiffs and prospective defendants were alike bound. There can be no distinction in principle between a right given by law to commence an action and a defence given by law which bars an action. In respect of causes of action already existing before the operation of Act A252, therefore, both prospective plaintiffs and prospective defendants possessed accrued rights on the happening of the necessary event as specified in the old Act. The necessary event that had happened in the present case is this. On the failure of the respondents to commence action within the specified period the appellants had acquired an ‘accrued right’ which was designed to give them immunity for acts done in the discharge of 794LIMITATION their public duties. That right was well preserved by the Interpretation Act, 1967. The matter therefore resolves itself on the application of the law at the time the writ was issued. That that is the principle applicable in the instant appeal is well illustrated by the case of J S Drinkhall v Nam Hue Motor Hiring which was rightly referred to by the learned judge, but which he had found difficulty in applying. Unless the contrary is provided for, the law of limitation applicable to the suit is the law in force at the date when such suit was instituted, in the instant case, Act A252. But this principle is subject to the condition that the rights sought to be enforced have not already been barred under the previous law: see Raman Kurup v Chappan Nair.® ‘A claim barred at the time when the writ is issued is not revived by a subsequent amendment of the law’: see JS Drinkhall v Nam Hue Motor Hiring, supra; Appasami Odayar v Subramanya Odayar'”. It therefore seems to us that in the circumstances of this case, the time for the claim was not enlarged by Act A252. The Act is not retroactive in operation, and has no application to a cause of action which was barred before the Act came into operation. We would allow the appeal with costs here and below. Appeal allowed. Zainur Zakaria for the Appellants. KC Cheah for the Respondents. Note This decision was upheld by the Privy Council in Yew Boon Tew & Anorv Kenderaan Bas Mara [1983] 1 MLJ 1. (b) Limitation against a plaintiff who is in possession of land as an equitable owner Munah v Fatimah [1968] 1 MIJ 54 High Court, Kota Bharu See under Land Law at page 702 above. 795PRACTICE AND PROCEDURE. (c) Acknowledgment under section 26(2) of the Limitation Act 1952 (i) KEP Mohamed Ali v KEP Mohamed Ismail [1981] 2 MLJ 10 Federal Court, Avian Shah CJ (Ma ‘uala Lumpur Coram: k: ), Wan Suleiman and Abdul Hamid FI} eferred to:- encer v Hemmerde [1922] 2 AC 507. Tiang Teng v Ong Hooi [1978] 2 ML) 54 (3) Consolidated Agencies Ltd v Bertram Lid {1965] AC 470. (4) Dungate v Dungate |1965| 1 WLR 1477, 1479. (5) Busch v Stevens [1962] 1 AIL ER 412 RAJA AZLAN SHAH CJ (MALaya) (delivering the judgment of the Court); This is an appeal from a judgment of the Judicial Commissioner in an action, in which the plaintiff (the appellant) sought to recover from his brother, the defendant, (the respondent) $100,000 being the amount acknowledged to be due from him to the former under a deed of compromise dated April 24, 1967 made between them. The only defence put forward was that the debt was statute-barred. Since the right of the plaintiff was a claim for a liquidated pecuniary sum founded on contract, section 6 of the Limitation Ordinance, 1953 applies. Section 6(1)(a) of the Ordinance is as follows: ..the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say- actions founded on a contrac The facts of the case are clear and undisputed. On April 24, 1967 the parties entered into a deed of compromise whereby the defendant became the trustee of the plaintiff of an undivided one-third share in the lands and buildings known as Nos 82A and B, Jalan Ampang, Kuala Lumpur. It was agreed that the defendant would transfer the said property free from encumbrances to the plaintiff. However, the said property was pledged by the defendant with 2 persons in Kuala Lumpur as security for a loan of $40,000 which said loan would fall due for payment on June 30, 1967. Under clause 3 of the agreement the defendant agreed and undertook to redeem the said property on or before that date and within 30 days thereafter the defendant was to transfer the said property to the plaintiff and upon such transfer the plaintiff should release and discharge the defendant from all claims by reason of the relationship of the defendant as trustee. Clause 5 further porvides that if the defendant shall fail to transfer the said property within the time stipulated in Clause 3, the plaintiff shall be at liberty to recover from the defendant the sum of $100,000. From the events that have happened the defendant failed to transfer the said property within the time stipulated under Clause 3 of the deed of compromise. 796LIMITATION Accordingly the plaintiff instituted and took this action to recover the said sum of $100.000 on April 11, 1974. The learned Judicial Commis- sioner held that the action was time-barred. We agree with his finding. In the course of the trial the plaintiff adduced evidence that both he and the defendant had entered into another agreement on March 23, 1976 in India in the presence of 5 arbitrators. Amongst other things in the said agreement was an undertaking by the plaintiff that upon payment of $90,000 to be made by the defendant to the plaintiff within a period of 9 months from the date of the said agreement the plaintiff shall withdraw his suit for the recovery of $100,000 brought against the defendant. It was contended on behalf of the plaintiff that the new agreement amounted to an acknowledgment that the debt of $100,000 was still due and owing by the defendant to the plaintiff. Section 26(2) of the Limitation Ordinance was relied on and it reads: Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the personal estate of a deceased person or to any share or interest therein, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment It was therefore contended that time began to run from the date of the new agreement and the plaintiff's claim revived from that date and was not time-barred, The learned Judicial Commissioner rejected that argument. He held that the new agreement which was made after the pleadings had closed was an attempt to revive the cause of action which was statute-barred. He further held that the plaintiff in his reply pleaded that the law of limitation had no application to the case. He therefore dismissed the plaintiff's action. This is a case where the plaintiff is seeking by action to recover a liquidated pecuniary claim and relies on the acknowledgment of the claim. There are three points for consideration: First, whether the new agreement dated March 23, 1976 amounts to an unequivocal acknow- ledgment of the indebtedness or as being in any way inconsistent with the promise to pay which the law imputes to a debtor who uncondition- ally acknowledges his debt: Spencerv Hemmerde. Secondly, if so, does the acknowledgment constitute in itself ¢ cause of action which is different from that which gives rise to the claim. Thirdly, should such a plaintiff plead the acknowledgment in his pleadings. On the first point we need only refer to the decision of this Court in Wee Tiang Teng v Ong Chong Hooi & Anor® where the Privy Council case of Consolidated Agencies Ltd v Bertram Ltd.® was followed. In that case it was held that for an acknowledgment sufficient to take it outside the Limitation Ordinance ‘the language of the debtor must amount to an unequivocal admission of a subsisting debt, that is subsisting at the time of the acknowledgment’. We now refer to the new agreement. Whether as a matter of interpretation it acknowledged a subsisting debt is a question which can only be answered with regard to the surround- ing circumstances. That agreement refers :o the liquidated pecuniary 797PRACTICE AND PROCEDURE claim which the defendant acknowledged to be due from him to the plaintiff under a deed of compromise dated April 24, 1967 made between them. This of course implies that at the date of the new agreement there was between the parties a subsisting legal relationship of such a kind that the defendant was in a position to say at once how much was owing on that date. This is consistent with the existence of the contractual relationship under which a debt was presently owing. The second paragraph of the new agreement stated infer alia that the $90,000 should be given by the defendant to the plaintiff within 9 months and on that being received by the plaintiff the action brought by him to recover the $100,000 should be withdrawn. Read against this background the new agreement seems plainly to have meant that the liquidated pecuniary claim was still owing, It appears to us that this is a way of saying: ‘if you pay me $90,000, the $100,000 which I am claiming from you and which you have acknowledged due to me would be withdrawn’. We are satisfied that the new agreement in no way disputes the plaintiff’s claim subsisting ‘at the time of the acknowledg- ment’ or is inconsistent with what has been called ‘the promise artificially implied as a result of the admission of the debt’: it amounts to no more that a request to the plaintiff to settle the subsisting debt of $100,000 upon the payment of a smaller sum of $90,000. In the circumstances, and having regard to the manner in which the new agreement was made it amounted to no more than a request that the plaintiff would not pursue his claim in full. We are of the opinion that the new agreement was a sufficient acknowledgment to take it outside the Limitation Ordinance, it is of the same character as the letter so held to be an acknowledgment in Dungate v Dungate® where the words used were: Keep a check on totals and amounts I owe you and we will have account now and then.... Sorry I cannot do you a cheque yet. Terribly short at the moment... Counsel for the defendant submitted that any acknowledgment of the liquidated pecuniary claim creates a new cause of action which is different from the cause of action which had accrued from the contract on which the claim was based. We reject that argument. An acknowledg- ment of a statute-barred debt does not raise a new claim or a new cause of action but constitutes the accrual of the right of action to recover the debt: see Busch v Stevens. We also refer to the speech of Lord Summer in Spencer v Hemmerde, supra, at page 524: I find that the great preponderance of the cases is against regarding the new promise as a new clause of action, and it seems to me that reason also is against it. Surely the real view is, that the promise, which is inferred from the acknowledgment and ‘continues’ or ‘renews’ or ‘estab- lishes’ the original promise laid in the declaration, is one which cor- respondent with and is not a variance from or in contradiction of that promise... If so, there is no question of any fresh cause of action. The facts relating to an acknowledgment are material facts upon 798LIMITATION which the plaintiff intends to rely when he starts an action for recovery of a debt or other liquidated pecuniary claim which, but for the acknowledgment, would be statute-barred. The question is: Should the facts relating to the acknowledgment be pleaded? There are observ- ations in Busch v Stevens, supra, which support the view that the proper place for facts which take the case out of the Limitation Act is in the statement of claim, and not in a reply. The authors of Bullen & Leake (12th Editor) at page 638 seem to suggest that the practice still prevails under which the plaintiff awaits the defence to see whether the defendant raises the plea that his action is statute-barred and then serves a reply alleging the facts and circumstances which afford the ground under the relevant statutory provisions for taking the case out of the Limitation Act. A statement in paragraph 653 of 28 Halsbury’s Laws of England (4th Edition) sets out the desirable practice: Where there is an acknowledgment in writing or part payment, the cause of action accrues afresh. Where title would be extinguished but for such an acknowledgment or part payment, it seems that the acknowledg- ment or payment should be alleged in the statement of claim as part of the cause of action. That course would also seem desirable where only the remedy is barred: but in such a case an alternative course, which would not, it is thought, be wrong, would be to plead the acknowledgment or part payment in the reply. In the present case, the material facts relating to the acknowledgment was not pleaded in the statement of claim: it was also not pleaded in the reply apart from stating that the law of limitation does not apply to the present action. That in our opinion is bad pleading. But it is a matter of indifference to the court whether the plea of acknowledgment is pleaded in the statement of claim or in the reply. If it is raised in the statement of claim, it would make a reply unnecessry and so reduce costs. A further advantage of pleading an acknowledgment in the statement of claim is that the defendant may thereby be led to refrain from raising the issue of limitation in the defence, thus narrowing the area of discovery and reducing costs: see Bullen & Leake (12th edition) at page 688. Since the material facts and circumstances were not pleaded in the statement of claim, is should have been pleaded in the reply. Be that as it may, this aspect of the case has been satisfactorily presented and developed in the proceedings before the High Court and we think there are materials on the record from which a decision fo that effect could be arrived at. As one of the objects of modern pleadings is to prevent surprise, we cannot for one moment think that the defendant was taken by surprise. To condemn a party on a ground of which no material facts have been pleaded may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded. For this reason we allowed the appeal with costs here and below. Appeal allowed. Dato Morris Edgar for the Appellant. Abd Murad Sheikh Ismail for the Respondent. 799PRACTICE AND PROCEDURE Notes (i) This decision was approved and applied by the Privy Council in Oversea-Chinese Banking Corporation v Philip Wee Kee Kuan [1984] 2 MIJ 1. also His Royal Highness’ decision in Mat bin Lim & Anorv Ho Yut Kam & Anor [1967] 1 MLJ 13. (ii) (ii) Mat bin Lim & Anor v Ho Yut Kam & Anor [1967] 1 MIJ 13 High Court, Raub Cases referred to: (1) Kuan Hip Peng v Yap Yin & Anor {1965] 1 MLJ (2) Lubovsky v Snelling [1944] 1 KB (3) Cohen v Snelling {1943} 2 All £1 RAJA AZLAN SHAH J: This is an application by the defendants by way of summons in chambers for an order to strike out the plaintiffs’ statement of claim under Order 25 rule 4 of the Rules of the Supreme Court on the ground that it discloses no reasonable cause of action or is frivolous and vexatious and an abuse of the process of the court. The points for determination are these. Firstly, when a plaintiff who is seeking by action to recover damages for personal injuries in respect of a road accident relies upon an acknowledgment of liability by the insurance company, does that acknowledgment constitute in itself a cause of action which is different from that which gave rise to the original claim? Secondly, should such a plaintiff plead the acknowledg- ment in his statement of claim or should he wait until the defendant pleads limitation and then deliver a reply setting up the plea of acknowledgment? These points arise for decision in the following circumstances. The first and second plaintiffs as administrator and co-administratrix of the estates of two deceased persons and as next friends to four infants brought an action for damages for the benefit of the deccascds’ estates under the provisions of section 7 of the Civil Law Ordinance, 1956 and also on behalf of the dependants who have suffered damages caused by the death of the two deceased persons. They filed their writ on 6th October 1965. The defendants are the administrators of the estate of Loke Hon Choong (deceased) who the plaintiffs alleged was responsible for the accident which occurred on 2nd February 1963. Appearance was duly entered and in paragraph 13 of the statement of defence they contended that the plaintiffs’ claim was barred and was not maintainable by virtue of section 8(3) of the Civil Law Ordinance, 800LIMITATION 1956. A reply was subsequently filed. The plaintiffs joined issue with the defendants on their defence and in further answer to paragraph 13 of the said defence they pleaded in paragraph 2 of the reply that the defendant could not rely on section 8(3) of the Civil Law Ordinance, 1956, as the China Insurance Co Ltd of Kuala Lumpur, Malaya, whose policy covered the deceased Loke Hon Choong as driver, had admitted liability and reached an agreement with the plaintiffs’ representative as regards the quantum of damages. In support of the present application, Mr R Talalla, an advocate and solicitor of the High Court, put in an affidavit dated 15th November 1965 in which he deposed that letters of administration of the estate of Loke Hon Choong (deceased) were granted to the defendants on 21st May 1963 and that the grant was extracted on 6th June 1963. In answer to paragraph 2 of the reply he stated that to the best of his knowledge, information and belief the China Insurance Co Ltd had neither admitted. liability nor reached any agreement with the plaintiffs’ representative or any other person as regards the plaintiffs’ claim for damages. On 7th December 1965 Enche Abdullah bin Masood the managing clerk of Messrs Harbans Singh and Kamil, adyocates and solicitors, who are acting for the plaintiffs, filed an affidavit in reply. He deposed that on 16th October 1963 he interviewed one Liew Fook Thin, the repre- sentative of the China Insurance Co Ltd at his Kuala Lumpur office. It was said that the insurance company had admitted liability and settled the matter, but they had not made payment in spite of several reminders. With regard to the first point, the defendants contended that where the plaintiffs are seeking to recover damages by action for personal injuries in respect of a road accident and rely upon an acknowledgment of liability by the insurance company, such acknowledgment consti- tutes in ifself a cause of action which is different from that which gave rise to the original claim. I desire to make it plain that I am not here expressing any concluded view whether there is such an acknowledg~ ment or not. | am deciding this case on the assumption that there is such an admission of liability. In my judgment, an acknowledgment is tantamount to saying that there is an agreement not to plead the statute of limitation and that constitutes a new cause of action. I find support in this view from a passage of Thomson LP in Kuan Hip Peng v Yap Yin & Anor.” That was a claim for compensation brought by the plaintiff suing by his next friend for loss arising from the death of his father as a result of a road accident under section 7(5) of the Civil Law Ordinance, 1956. The particular passage indicates that where there is an exception to a statute of limitation such as infancy, disability or an acknowledg~ ment, that would constitute a new cause of action. That disposes of the first question. With regard to the second question, the general rule is that where there are exceptions which will affect the operation of a statute of limitation, a plaintiff need not plead them until the defence of limitation has been raised on the pleadings by the defendant. But this rule is not applicable where the statute is absolute and contains no exceptions. The 801PRACTICE AND PROCEDURE learned Lord President reviewed a series of authorities on the subject in Kuan Hip Peng’s case, supra. It may well be that case was decided in the light of the provisions of section 7(5) of the Civil Law Ordinance. I am nevertheless of the view that the principle is of general application. Section 8(3) enacts that ‘no proceedings shall be maintainable unless proceedings against the defendant in respect of that cause of action are taken not later than six months after his personal representative took out representation’. An analysis of the section indicates that the terms are absolute and without exception. It runs from the date the personal representative took out representation. In the words of the learned Lord President. ‘There is no question of infancy or disability or anything of the sort or of acknowledgment. The only way in which the conse- quences of the section could be avoided would be if there had been some agreement not to plead the statute and this would constitute a new cause of action: Lubovsky v Snelling and would require to be set out in the statement of claim.’ That being the case, the reply must not depart from the statement of claim. In this connection I may as well adopt a passage from the current edition of Bullen & Leake’s Precedent and Pleadings (11th Edn) at page 694: The plaintiff, however, must not set up in his reply a new cause of action which is not raised either on the writ or in the statement of claim; it is provided that ‘no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same’. In other words the reply must not contradict or ‘depart’ from the statement of claim. See also 1963 Annual Practice at page 561 under the heading ‘Where Reply Necessary’. The plaintiffs rely on the case of Cohen v Snelling. In that case the first action was commenced before the plaintiff had obtained a grant of letters of administration and it was discontinued. A second writ was issued after a grant had been obtained. It was contended by the defendants that the second action was barred by section 3 of the Fatal Accidents Act, 1846, which limits the right of action to the period of one year from the date of the death. That case had proceeded on the basis that liability was admitted and evidence to that effect was Jed in the course of the hearing at first instance. From that it may logically be inferred that such evidence was based on the pleadings in the statement of claim. To that extent Snelling’s case can be distinguished from the present On these unhappy facts it is therefore plain that the acknowledgment should be pleaded in the statement of claim. I will therefore allow the application with costs. Application allowed. Harbans Singh Sidhu for the Plaintiffs. R Talalla for the Defendants. 802MODES OF ORIGINATING PROCESS ‘MODES OF ORIGINATING PROCESS. (a) Application for a perpetual injunction Re Court Hill Canteen; Government of Malaysia v Wan Esah 11972] 2 MLJ 257 High Court, Kuala Lumpur Case referred to:~ (1) Lv £ [1969] 1 All ER 852, RAJA AZLAN SHAH (delivering oral judgment): This is an application by way of originating motion by the Government of Malaysia for a perpetual injunction restraining the respondent, her servant or agent from entering the premises known as Court Hill Canteen. The motion was filed on 11th October 1972. In substance the affidavit says that the respondent executed an agreement with the applicants to run the Court Hill Canteen. There is a provision providing, for two months’ written notice to terminate the agreement. The appli- cants are not satisfied with the running of the canteen and they accordingly terminated the agreement with the required notice. The respondent failed to vacate and so the applicants have brought this motion. The ground put forward by counsel for the respondent, though seemingly narrow, is of crucial importance; that is, this case should have been proceeded by way of writ and not by way of originating motion. Counsel cited section 51 of the Specific Relief (Malay States) Ordinance, 1950, which provides that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit. He accordingly says that the originating motion is not a suit, and therefore the motion is misconceived. I think the law is very clear. A perpetual injunction can only be granted by a decree in a suit. Since an originating motion is not a suit, the motion must fail. There is another point. One can bring an action for perpetual injunction before filing a writ of summons in a case of urgency. That is clear from the case of J v L. That was a divorce petition where the wife applied ex parte for an injunction to restrain the husband from removing the children of the marriage from her custody. The wife proposed to petition for divorce but no petition had been filed. The court held that this does not prevent the issue of an injunction until the action is launched provided it is a case of urgency. In the present case the motion was filed on 1 1th October 1972 and up till today there is no indication by way of affidavit or otherwise that the applicants intend to file a writ, nor is there any indication that this is a case of urgency. The motion is dismissed with costs. Motion dismissed. Mohamed Azom Shuja for the Appellant. Gurdial Bakan Singh for the Respondent. 803PRACTICE AND PROCEDURE (b) Application under written law Nanyang Development (1966) Sendirian Berhad v How Swee Poh [1969] 1 MIJ 232 High Court, Kuala Lumpur See under Land Law at page 659 above. Note See Order 5 rule 3 of the Rules of the High Court 1980. There was no similar provision under the Rules of the Supreme Court 1957. (c) Whether writ or originating summons is the appropriate mode Pesurohjaya Ibu Kota Kuala Lumpur v Public Trustee & Ors [1971] 2 MLJ 30 High Court, Kuala Lumpur RAJA AZLAN SHAH J: This is a claim for costs and compensation for removal of squatters by the Kuala Lumpur Municipality. The applicant, Pesurohjaya Ibu Kota, Kuala Lumpur, applied by way of originating summons for an order that the holding comprised under CT No 4744 on lot No 291, section 46, situated at Lorong Gombak (hereinafter referred to as the (‘said land’) be attached and sold pursuant to the provisions of section 50 of the Town Boards Enactment (Cap 137) and regulations 10(2) and 10A(1) of the Essential (Clearance of Squatters) Regulations 1969 to recover the sum of $338,378.45 being costs and expenses under regulation 10 (2) and compensation under regulation 10A(1) and fees with interest thereon at the rate of 6% per annum from June 9th, 1970 until payment and costs of the application. ‘The facts of the case are as follows: The applicant is the Pesurohjaya Ibu Kota, Kuala Lumpur and the four respondents are the Public Trustee, Malaya for the Public Trustee, Singapore as administrator of the estate of Hardial Singh s/o Moher Singh, Harban Singh s/o Jagat Singh and Harban Singh s/o Jagat Singh and Talok Singh s/o Jagat Singh as personal representatives of the estate of Pritam Singh s/o Jagat Singh and Ng Chin Siu and Sons Rubber Estate Ltd. 804MODES OF ORIGINATING PROCESS The respondents are co-proprietors of the said land. The applicant caused the squatters to be removed from the said land, under the Essential (Clearance of Squaters) Regulations 1969. The squatter huts were demolished on November 30th, 1969. On March 31, 1970 the applicant served a bill for a sum of $307,609.45 on the co-proprietors of the said land. When the respondents did not settle the bill, a notice of demand dated 20th May 1970 was served on them. When the respond- ents still did not pay, a warrant of attachment was issued on 9th June 1970 pursuant to section 47 of the Town Boards Enactment. However, the warrant of attachment could not be executed because there were no movable properties on the said land. The applicant thereupon made an application to this court that the holding itself be attached to recover the costs, expenses and compensation. The appli- cant now claims an additional sum of $30,771.000 as fees payable in respect of the notice of demand and warrant of attachment. The sum of $338,378.45 claimed is for the following: 1. Cost and expenses under reg. 1012) — — $ 13,522.00 2. Compensation under reg. 10A(1) — — $ 294,084.45 3. Notice of demand — — -—- -$ 1.00 4, Warrant of attachment fee — $ 30,770.00 $ 338,378.45 The respondents contend that the procedure adopted by the applicant is wrong in law because disputed questions of fact and law are involved. They further contend that regulation 10A is an amendment to the Essential (Clearance of Squatters) Regulations, as such if cannot be enforced against the respondents in respect of the squatter clearance carried out on 30th November 1969. The respondents agreed that the applicant incurred costs and expenses under regulation 10(2) of the 1969 Regulations. This amounts only to $13,523.00 and their liability if at all is only for this sum. There is also disagreement between respond- ents and the applicant as to the number of squatter families removed. Further, the respondents claim that the applicant is indebted to them for a sum of $310,375.00 being compensation for acquisition of 12,415 square feet of the respondents’ land. This counter-claim has however been withdrawn. Ishall first deal with the retrospective nature of the amendement. The Essential (Clearance of Squatters) Regulations, 1969 came into force on 2nd October, 1969. On 24th February 1970, the Regulations were amended and were deemed to have come into force on 2nd October 1969. Demolition work was done on 30th November 1969, i.e., before the amendment to the Regulations was made. But the respondents were billed on 31st March 1970, ice., after the amendment. The general rule is that there is a presumption against giving statutes a retrospective operation. The presumption is that the legislature does not intend what is unjust. The learned author of Craies’ on Statute Law (6th ed) at p 386, defines a retrospective statute as one 805PRACTICE AND PROCEDURE which taki away or impairs any vested right acquired under existing new obligation, or imposes a new duty; or attaches a new spect 0 transactions or considerations already pé The rule is however, a mere presumption and as such it may be rebutted by express words in the Act or by circumstances sufficiently strong to replace it. In the present case it is clearly stated in the Regulations that the amendment is to take effect from a date antecedent to its making. Regulation 10A clearly governs the instant case because the amendment has retrospective effect. A statute that is retrospective is not necessarily unjust or oppressive, Again I quote from Craies’ Law of Statute at page 388: Itis a good general rule that a law should have no retrospect, but in in which the laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement... It is not very difficult to see that the retrospective effect of the amendment has created new obligations and burdens on the respond- ents. But at the same time it confers a benefit on a section of the public namely the squatters. Under regulations 16(1) (as amended) the sums of money payable under regulation 104 is paid into a fund known as the Squatters Re-housing and Rehabilitation Fund. Some of the families removed from the said land have already been housed in low-cost flats specially built for them by the government. The next point to consider is whether the compensation levied is fair and equitable. The applicant is charging on the basis of 55 cents per square foot under regulation 10A(1) which reads: 10A(1). Notwithstanding the provisions of regulations 7 and 10 if the authority has served notice upon the occupier in pursuance of regulation 8 or 10 the owner shall pay to the local authority in addition to the cost and expenses payable under regulation 7 or 10 a sum of money as the local authority may in its absolute direction decide calculated at the rate of not less than 5 cents and not more than 200 cents per square foot of the whole area of the land but in any event the sum payable shall not be less than one thousand dollars and not more than three times the amount of the annual value of the holding. (2) The decision of the local authority under paragraph (1) shall be final and shall not be questioned in any courts. Before the amendment compensation was levied at the local authority’s discretion according to the number of squatter families removed [see regulation 7(a) sub-para (v) and regulation 10(2)]. Regulation 7(a) sub-para (v) has been deleted by the 1970 amendment and the basis of levying compensation is substituted with that of regulation 10A. Since the value of the land has appreciated four-fold from $2,000,000.00 before demolition to $8,000,000.00 after demolition, the rate of 55 cents per square foot is in my view fair and equitable. Had it been levied on the old basis, it would have been quite a substantial sum in view of the fact many families were removed. I now come to the question of procedure. The respondents contend 806SETTING ASIDE A REGULAR JUDGMENT IN DEFAULT OF APPEARANCE that the action should have proceeded by way of writ and not originat- ing summons because disputed questions of fact and law are involved. When a question of fact is at issue action is to be by way of writ and not by originating summons. This is because the facts have to be established by examination and cross-examination of witnesses. In the present case the disputed question of fact would be as to the number of squatter families removed from the said land. The question now is whether the number of squatter families is a relevant question rendering it nece- ssary to be established by examination of witnesses in court. The determination of number of squatter families would be crucial under the unamended 1969 Regulations because the mode of computing compensation under regulation 7(a)(v) is by squatter families. But with the amendment the method of computing is by way of area. Ihave said earlier that the amendment applies retrospectively and so the basis of levying compensation is by area and not squatter families removed. As such the question of how many squatter families are removed is not relevant and therefore not a fact crucial to the determin~ ation of the case. Therefore the procedure adopted by the applicants is in order, The counterclaim by the respondents has been withdrawn and I will not express any view on it. I therefore order that the holding be attached and sold pursuant to section 50 of the Town Boards Enactment (Cap 137) to recover the sam of $338,378.45 as costs and compensation for removal of squatters together with interest at 6% per annum from 9th June 1970 until payment and costs of this application. Claim allowed. JL Tan for the Applicant. VL Kandan for the Respondents. SETTING ASIDE A REGULAR JUDGMENT IN DEFAULT OF APPEARANCE Bank Bumiputra Malaysia Bhd v Majlis Amanah Ra’ayat [1979] 1 MIJ 23 Federal Court, Kuala Lumpur Coram: Raja Azian Shah Ag CJ (Malaya), Wan Suleiman and Chang Min Tat FJ RAJA AZLAN SHAH Ag CJ (MALAYA) (delivering the judgment of the Court): This was an appeal from an order of the High Court at Kuala Lumpur allowing the application by the respondents, as the second defendants in the action, that the judgment entered against them in default of appearance be set aside. We dismissed the appeal on May 30, 1978. 807PRACTICE AND PROCEDURE The appellants claimed a sum of $73,402.80 being the amount alleged to be owing by the first defendants, Syarikat Baiduri (M) Sdn Bhd, on an overdraft account. The respondents were sued as guarantors for the first defendants. The specially endorsed writ was filed on March 16, 1976 and served on the respondents on March 31, 1976. On June 23, 1976, the appellants obtained judgment against the respondents in default of appearance. ‘The application to set aside the judgment was made by summons-in- chambers dated October 18, 1977. One ground stated in the affidavit in support of the application is that at the time when the writ was served the respondents were engaged in major administrative reorganisation, and from March 22, 1976 till the end of June 1976 they were busy transferring files and personnel from the Contracts Unit to the newly set up Overdraft Unit of the Loans Division and in the process this matter lost the attention which otherwise would have been given. Another ground is that the writ when served, was handed to an officer who was no longer with the relevant division and he had failed to forward it to the appropriate officer. All of these alleged facts were not refuted by the appellants. As to the merits of defence the respondents relied on Clause 13 of the guarantee agreement executed by them on January 11, 1974, which reads as follows: This Guarantee shall be valid for a period of eight calendar months from the date hereof, computing for this purpose, the month in which this guarantee is executed by us (irrespective of the number of days of the months then remaining) as one calendar month and any demand hereunder to be valid shall be made not later than thirty days from the date of the expiry of the period of this Guarantee. According to evidence the demand was made on the respondents on June 17, 1975. It was therefore contended by them that the demand was made out of time. Learned counsel for the appellants argued that the time limit was null and void in view of section 29 of the Contracts Act, which reads: Every agreement, by which any party thereof is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights is void to that extent. The learned judge held that Clause 13 of the guarantee agreement was not caught within the ambit of the provisions of section 29 of the Contracts Act. That in my opinion is a question of law. The true construction of a document is a question of law for the court, and it isno part of the court’s function at this stage of the litigation to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. In any event the learned judge found that prima facie there was an issue which should go for trial. He also found that the grounds relied upon by the respondents were sufficient grounds for setting aside the judgment in default. 808PARTIES It is clear that the application to set aside the judgment in default was made under Order 13 rule 10 of the Rules of the Supreme Court. The rule provides: Where judgment is entered pursuant to any o! the preceding Rules of this Order, it shall be lawful for the court or a judge to set aside or vary such judgment upon such terms as may be just. The rule gives the court a discretion which rust be exercised judicially. It is axiomatic that if the judgment is regular, then it is an inflexible rule that there must be an affidavit of merits, that is, an affidavit stating facts showing a defence on the merits. An appellate court can only interfere with the exercise of the discretion if the court below has clearly acted on some wrong principle, committed some error of law or failed to consider matters which demanded consideration. I cannot think that in dealing with the application under Order 13 rule 10 the learned judge committed any error of law. Neither did he fail to consider all matters demanding consideration nor act on any wrong principle. In my view all the elements are present in this case which would justify the exercise of discretion in favour of the respondents. In my view, the respondents have disclosed a defence on the merits. Wan Suleiman and Chang Min Tat FJJ concurred. Order accordingly. Miss Swee Chew Yoke for the Appellants. Mohd Ismail for the Respondents. PARTIES (a) Relator action Attorney-General at and by the relation of Pesurohjaya Ibu Kota, Kuala Lumpur v Wan Kam Fong & Ors [1967] 2 MLJ 72 High Court, Kuala Lumpur Case referred to:- (1) Attorney-General v Bastow {1957} 1 All ER 497. RAJA AZLAN SHAH J: This is an application by the defendants to set aside the specially endorsed writ on the grounds that the Attorney-General has no power and is not competent to act as plaintiff at the relation of the Pesurohjaya, Ibu Kota, Kuala Lumpur, and that the Attorney-General is not the proper person to institute the proceedings. Briefly, the facts are that the defendants are alleged to have commit- ted breaches of certain bye-laws by carrying on a restaurant business without a licence being issued by the Pesurohjaya. In respect of these 809PRACTICE AND PROCEDURE breaches they were twice prosecuted, convicted and fined in the magistrate’s court. In spite of these convictions the defendants have persisted in carrying on their restaurant business without a licence. To restrain the defendants from further committing these breaches an action has been commenced by the Attorney-General at the relation of the Pesurohjaya, claiming inter alia a perpetual injunction restraining the defendants from using, causing or permitting the mezzanine floor to be used as a restaurant without the licence of the Pesurohjaya. Mr Ng Ek Teong, on behalf of the defendants, submits that Article 145 of the Constitution which creates the office of the Attorney-General does not empower him to bring this relator action. Article 145(2) enacts: It shall be the duty of the Attorney-General to advise the Yang di Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law. If the contention of Mr Ng Ek Teong truly represents the law of this country, it would be deplorable. It would mean that the Attorney- General who is the guardian of public rights is not competent to bring a relator action to restrain interference with a public right or to abate a public nuisance or to compel the performance of a public duty. Nothing could be more unjust. Historically, ‘relator’ was the name given to a plaintiff in an inform- ation in Chancery where the rights of the Crown were not immediately concerned and who was responsible for costs; he must have given the solicitor a written authority to file the information. That was enumerated in the Statute 1852, 15 & 16 Vict c 86, section 11, which reads: XI. Before the Name of any Person shall be used in any Suit to be instituted in the said court as Next Friend of any Infant, married Woman, or other Party, or as Relator in any Information, such Person shall sign a written Authority to the Solicitor for that Purpose, and such Authority shall be filed with the Bill, Information, or Claim. For the former information in Chancery an action was substituted by © 1,r 1 of the Rules of the Supreme Court, 1883 (UK) but the term ‘relator’ is still in use as meaning the person responsible for costs at whose suggestion an action is commenced by the Attorney-General. Relation action’ was contained in O 16, r 20 (U.K.) and that is now embedded in O 15, r 11 of the Rules of the Supreme Court, 1965 (UK). The procedure to be followed in this country is contained in O 16, r 20. Although that rule differs from the English provisions in only one aspect, that is, with regard to the written authority to be given to the solicitor, I have not the slightest doubt that the meaning to be attributed to the word ‘relator’ appearing therein is taken from the English meaning. 810PARTIES It is conceded that the right of the Attorney-General in the United Kingdom to bring such an action at the instance of a relator is derived from the common law and that he has an unfettered discretion to determine whether he should bring such an action. It is also a common ground that the present case, that is, the infringement of a local authority bye-law, would favourably found an action for an injunction in the United Kingdom by the Attorney-General at the relation of the local authority: see Attorney-General v Bastow: Section 3(1) of the Civil Law Ordinance, 1956, requires the courts inter alia to ‘apply the common law of England at the date of the coming into force of this Ordinance’, that is, on 7th April 1956. It therefore follows that before Merdeka Day the English common law power of the Attorney-General to bring a relator action is vested in him. Section 3 is an existing law within the meaning of Article 160. Article 162 provides inter alia that the existing laws, until repealed by the proper authority, continue to be in force on or after Merdeka Day. That Article therefore preserves the provisions of section $ of the Civil Law Ordinance and section 3 is a written law which confers on. the Attorney-General the English common law power to bring a relator action. Mr Yong Pung How on behalf of the plaintiff supports his claim that the Attorney-General in this country can bring a relator action to remedy a public wrong by referring to O 16, r 20 of the Rules of the Supreme Court which provides: Before the name of any person shall be used in any action as next friend of any infant, or other party, or as relator, such person shall sign a consent to act as such next friend and such consent shall be filed. He contends that these Rules of the Supreme Court, although made before Merdeka Day came into force after Merdeka Day and therefore the reference in the rules to relator actions provides confirmation from an authoritative source that such actions continue to exist. I find the argument attractive and well-founded. It is now convenient to deal with the second limb of Mr Ng Ek Teong’s objection, that is, the Attorney-General is not the proper person to institute the proceedings. He paraphrased his argument by saying, firstly, for the consent of the relator to be valid it must be filed at the time of filing the writ. My attention was drawn to O 16, r 20 (UK) and to the Annual Practice 1956 at page 272 which states: On issuing a writ of summons or originating summons the authority is filed at the action department at the time of issue or filing. In the instant case the writ was filed on 18th February 1967 but the consent of the relator was filed on 29th March 1967. Our O 16, r 20 states that ‘such consent shall be filed’ but does not stipulate the period of filing, The English provision too does not stipulate the period of filing but the Annual Practice, supra, and the 2nd edition Atkin’s Court Forms, Vol 3, p 24, seem to indicate that the authorisation must be filed in the registry at or before the writ or originating summons is issued. Secondly, it is submitted that since the Pesurohjaya, Ibu Kota, is a 811PRACTICE AND PROCEDURE corporation sole, his consent must be under seal, In this connection reference was also made to the Annual Practice and Atkin’s Court Forms. Mr Yong Pung How, on the other hand, contends that as these procedural defects do not go to the root of the matter they can be cured and accordingly they cannot constitute a ground for setting aside a writ which has been properly founded. Tcannot subscribe to that view. It seems to me in order to give validity to the use of the relator’s name in an action his prior written consent to act as such must be filed at or before issue of the writ. Such consent is a condition precedent to the right to use the relator’s name; it goes to the roof of the matter for without it the nominal plaintiff has no locus standi, The Pesurohjaya, Ibu Kota, is a corporation sole (see section 4(1) Federal Capital Act 1960). His powers are derived solely from statute. He has an official seal which shall be authenticated by his signature (see section 4 (2)) and any document purporting to be issued or made by him duly sealed and authenticated shall in any litigation or proceeding be deemed to be so made or issued without further proof, unless the contrary is shown. It seems to me plain that the section is imperative and not subject to any implied exception. Thus the Pesurohjaya in the circumstances must use his seal in the prescribed manner when giving his consent, the absence of which makes it inoperative and of no effect. The application is therefore allowed with costs. Application allowed. Yong Pung How for the Plaintiff. Ng Ek Teong & R Padmanabhan for the Defendants. Note See also Majlis Perbandaran Pulau Pinang v Boey Siew Than & Ors, below. (b) Suits by local authorities to abate a public nuisance Majlis Perbandaran Pulau Pinang v Boey Siew Than & Ors [1979] 2 MLJ 127 Federal Court, Penang Coram: Raja Azlan Shah CJ (Malaya), Chang Min Tat and Syed Othman FJJ See under Administrative Law at page 156 above. 812PARTIES, (©) Suits by beneficiaries on behalf of an estate by of a deceased person Eh Riyid v Eh Tek [1976] 1 MLJ 262 Federal Court, Kota Bharu, Coram: Suffian LP, Raja Azlan Shah and Wan Suleiman FI) Cases referred to:- (1) Tuan Man & Anor v Che Som & Ors (1930) 1 MC 184. (2) Markt & Co Limited v Knight Steamship Company Limited (1910] 2 KB 1021. (3) Beeching v Lloyd (1855) 3 Drew 227. (A) Duke of Bedford v Ellis & Ors [1901] AC 1, 8. (5) Taff Vale Railway v Amalgamated Society of Railway Servants [1901] AC 421, 442, 443. (6) Meux v Maltby (1818) 2 Sw 277. (7) Commissioners of Sewers v Gellatly (1876) 3 Ch D 615. (8) Pegang Mining Co Ltd v Choong Sam & Ors [1969] 2 MIJ 52, 58 (9) Federal Flour Mills Lid v Owners of the Vessel “Ta Tung’ & Anor [1970] 2 MLJ 147. (10) Guarantee Trust Company of New York v Hannay & Co [1914-15] All ER Rep 24. (11) Letchumanan v Kok Seng Fatt [1973] 1 MIJ 171. (12) In re Cheong Soon Piang, Lau Poh Yoke & Anorv Cheong Weng Moon (1954) 2 MC 214, (13) Meriam binti Daud & Ors v Saud bin Kancil ¥C Civil Appeal No 128 of 1971. RAJA AZLAN SHAH FJ: This appeal raises the question whether a bene~ ficiary of a deceased’s estate may institute proceedings to correct an error entered in the land register without joining the other benefi- ciaries. The learned trial judge seems to think that Order 16 rule 9 is not applicable where the subject-matter concerns the estate of a deceased person. He added that failure to consult the cther beneficiaries is fatal to the plaintiff’s claim and reliance was placed on the Privy Council decision in Tuan Man and Another v Che Som and Ors‘ for the proposition that all the other beneficiaries should be joined as co- plaintiffs. To my mind where as here there are 4 persons with individual rights of their own, there are two ways in which actions may be brought to establish their respective rights in one and the same action. One is to resort to Order 16 rule 1, by joining all of them as plaintiffs; the other is under Order 16 rule 9 by one named person bringing a representative action in respect of himself and numerous other persons. These are two distinct modes of procedure and they apply to widely different types of cases. The relation of the parties in these two types of cases also differs, as does the effect of the judgment. The policy of Order 16 rule 1 is to prevent repetition of cases of the same character and to save un- necessary expense. The plaintiffs are joined together by consent and are endowed with the status and responsibilities of ordinary litigants, for example, are liable for costs if they fail, and can be ordered to give discovery or to answer interrogatories. 813PRACTICE AND PROCEDURE In a representative action the plaintiff is the self-elected representa- tive of himself and others. He does not have to obtain the consent of the other persons whom he purports to represent, and they are not liable for costs, though by estoppel and res judicata they will be bound by the result of the case: see Markt & Co Limited v Knight Steamship Company Limited. The requisite of a representative action is that the persons who are to be represented must have the same or common interests as the plaintiff in one and the same cause or matter, although it may result in the case of each of them in different measure of relief: see Markt & Co Limited v Knight Steamship Company Limited, or relief common to all of them: see Breeching v Lloyd®. Order 16 rule 9 is to be interpreted as declaratory of the old Court of Chancery practice with regard to representative action. The most authoritative statement on Order 16 rule 9 is that stated by Lord Macnaghten in the case of The Duke of Bedford v Ellis and Others: Under the old practice the court required the presence of all parties interested in the matter in suit, in order that a final end might be made of the controversy. But when the parties were so numerous that you never could ‘come at justice’, to use an expression in one of the older cases, if everybody interested was made a party, the rule was not allowed to stand in the way. It was originally a rule of convenience; for the sake of convenience it was relaxed. Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent. Lord Lindley said of the rule in Taff Vale Railway v Amalgamated Society of Railway Servants® as follow: The rules as to parties to common law actions were too rigid for practical purposes when those rules had to be applied to such societies, But the rules as to parties to suit in equity were not the same as those which governed courts of common law, and were long since adapted to meet the difficulties presented by a multiplicity of persons interested in the subject-matter of litigation. Some of such persons were allowed to sue and be sued on behalf of themselves and all others having the same interest. This was done avowedly to prevent a failure of justice: see Meux v Malthy® and the observations of Sir George Jessel MR. The principle on which the rule is based forbids its restriction to cases for which an exact precedent can be found in the reports. The principle is as applicable to new cases as to old, and ought to be applied to the exigencies of modern life as occasion requires. The rule itself has been embodied and made applicable to the various Divisions of the High Court by the Judicature Act, 1873. In my opinion, Lord Lindley’s statement illustrates the undesirability of propounding general propositions wider than are strictly necessary for the determination of each case. The question before us arise under Order 16 rule 9. Under that rule the plaintiff, a named person, may institute proceeding without joining the other beneficiaries. But he must as the rule requires bring the action in a representative capacity. It is in my opinion not correct to interpret the rule as implying that it allows a person to bring an action without stating on the writ that he brings it in 814PARTIES a representative capacity. That interpretation offends the language of the rule and the authoritative statements given to it and I can find in none of them the slightest justification for bringing a representative action under such circumstances as in the present case. It was also argued on behalf of the plaintiff that nonjoinder of the other beneficiaries is not fatal to his claim. Order 16 rule 11 which was relied in support provides: ‘No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties’. My view of the matter is that it is a rule pertaining to adding of parties and which affects the right of a person if judgment is passed in his absence and without giving him an opportunity of being heard. The rule must be looked as a whole and the key of the whcle rule is that no cause or matter shall be defeated by reason of the misjoinder or nonjoinder of parties, which means that if the court cannot decide the question without the presence of other parties, the cause is not to be defeated, but the parties are to be added so as to put the proper parties before the court. I would quote a passage from the speech of Lord Diplock in Pegang Mining Co Ltd v Choong Sam & Ors® on the scope of the rule: In their Lordships’ view one of the principal objects of the rule is toenable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard. See also my own judgment in Federal Flour Mills Ltd v Owners of the Vessel ‘Ta Tung’ & Anor.® It follows that in approaching the problem we have to seek to solve on this appeal the rule cited by counsel must be approached with caution. It is only relevant and helpful if it is applicable to this dispute. I would dismiss the appeal with costs. Appeal dismissed Datuk Wan Mustapha for the Appellant. A Wilson for the Respondent. (a) Power of add new parties Federal Flour Mills Ltd v Owners of the Vessel ‘Ta Tung’ & Anor [1970] 2 MLJ 147 High Court, Kuala Lumpur Cases referred to:- (1) Amon v Raphael Tuck & Sons Ltd [1956] 1 QB 337. (2) Gurtner v Circuit [1968] 2 QB 587. (3) Re Vandervell Trusts {1969} 3 All ER 496. (4) Pegang Mining Co Ltd v Choong Sum & Ors [1969] 2 MLJ 52. (8) Byrne v Brown (1889) 22 QBD 657. (©) The Bowesfield (1884) 51 LT 128. 815PRACTICE AND PROCEDURE () The Germanic {1896| P 84 (8) The Cheapside [1904] P 339. (9) Metropolitan Asylum Board v Sparrow (1913] WN 115. RAJA AZLAN SHAH J: The plaintiffs, owners of a cargo of wheat in bulk shipped on board the vessel ‘Ta Tung’ which sailed from a port in Australia to Port Swettenham, the port of discharge, commenced an action in rem against the v the owners and all parties interested in her, for damage sustained by reason of the contamination of the cargo by fuel oil, which they alleged took place during the yoyage or, alternatively during discharge. The owners appeared and statements of and counter-claim were respectively delivered, the defence including an allegation of negligence on the part of the stevedores, i.e., the Cargo Handling Corporation Sdn Bhd, who were the plaintiffs’ servants, agents etc. The owners of the vessel issued a third party notice against the stevedores but subsequently they withdrew the notice. The plaintiffs have now applied to join the stevedores as defendant on the ground of convenience. I allowed their application in chambers and the matter has since been adjourned to open court for further argument. It is not disputed that the plaintiffs are entitled to the order sought only if they can bring themselves within the terms of the rule providing for the joinder of additional parties, i.e., Order 16 rule 11 of which the relevant provision reads: The court or a judge may, at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the court or a judge to be just, order... the name of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectively and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. That rule is in substantially the same terms as the former (English) Order 16 rule 11 and the RSC (Revised) 1962, Order 15 rule 6(2)(b). It has been the subject of a number of judicial exegesis. In Amon v Raphael Tuck & Sons Ltd,” Devlin J had examined the authorities so fully and exhaustively. He took a narrow view in construing the rule. His view did not find favour with the Court of Appeal in Gurtner v Circuit® which disapproved Amon v Raphael Tuck & Sons Ltd. The Court of Appeal preferred a wide interpretation to the rule. That view was re-echoed by the Court of Appeal in Re Vandervell Trusts.© In Pegang Mining Co Ltdv Choong Sam & Ors, the Privy Council had occasion to consider the rule and expressed preference for the liberal view propounded by Lord Esher MR in Byrne v Brown. Lord Diplock in delivering the opinion of the Privy Council thought that Devlin ’s view was rightly over-ruled by the Court of Appeal in Gurtner v Circuit, supra. 1 too, would prefer the liberal view whenever it is just and convenient to do so, so as, in the words of Lord Esher MR in Byrne v Brown, supra, at page 666: 816PARTIES -to secure that, wherever a court can see in the transaction brought before it, that the rights of one of the parties will or may be so affected that under the forms of law other actions may be brought in respect of that transaction, the court shall have power to bring all the parties before it, and determine the rights of all in one proceeding. It is not necessary that the evidence in the issues raised by the new parties being brought in should be exactly the same; it is sufficient if the main evidence, and the main inquiry, will be the same, and the court then has power to bring in the new parties, and to adjudicate in one proceeding upon the rights of all the parties before it. Another great object was to diminish the cost of litigation. That is not the end of the matter. It was urged by Mr Peddie on behalf of the third-party that I should not exercise my discretion in favour of the application because the plaintiffs should not be allowed to engraft a claim in personam on an action in rem. He referred me to three cases which are cited in the Annual Practice (1963) at page 317: The Bowesfield,® The Germanic” and The Cheapside. In The Bowesfield, Butt J refused a motion by the plaintiffs in an action in rem under Lord Campbell’s Act to amend their writ by adding the names of the registered owners of the vessel Bowesfield as defend- ants on the ground that the court had no jurisdiction to add parties as defendants, so as to convert an action in reminto an action in personam. The Germanic was a case of collision between two ships. The plaintiffs, owners of one of the ships issued a writ in rem against the other ship and the owners and those interested in her. The defence was compulsory pilotage. They then applied to add the pilot as a defendant. That was an action in personam. If the application was granted then there would be two trials going on concurrently, one against the ship which would be a trial by a judge and assessors and the ohter against the pilot, which would be by the same judge and a jury. There would be the difficulty of applying different legal standards, because questions of negligence and con- tributory negligence might have arisen ard therefore it might have been necessary to apply the common law standard and where no question of contributory negligence could arise, the Admiralty standard would have to be applied. Then there was the difficulty in drawing up the two judgments. The Court of Appeal as a matter of discretion refused the application. The difficulty that was envisaged by the Court of Appeal in The Germanic did not exist in The Cheapside and the court in exercising its discretion refused to strike out the counterclaim on the ground of embarrassment. There is another case, Metropolitan Asylum Board v Sparrow. That was also an action in rem against the owners of the ship in the Admiralty Division. The pilot elected to a trial by jury but that was refused. The Court of Appeal on the ground that the pilot had a right to a jury, ordered the action to be transferred to the King’s Bench Division. In the light of these authorities it is clear that in a given case like the present the court has an unfettered discretion to allow a claim in personam to be engrafied upon a claim in rem, provided no injustice or inconvenience is caused when the case comes up for trial. 817PRACTICE AND PROCEDURE In this country admiralty and common law cases are tried in the High Court without a jury, although where the judge requires expert advi on nautical matte: may be made to the Registrar with or e Supreme Court. The court will not envis the various legal standards affecting the pre se. The main evidence and the main enquiry would be the same i.e., damage done to the cargo. There would be no difficulty in drawing up the judgment, in fact there would be only one judgment. On the whole the difficulty does not exist which was felt in The Germanic and other allied cases. In the circumstances of this case I think it is just and convenient that the Cargo Handling Corporation Sdn Bhd. be joined as a defendant in order that the matter can be effectively and completely adjudicated upon. , referen Order accordingly. M Shankar for the Plaintifi Nik Mohd Din for the Defendants. SDK Peddie for the third party. SUMMARY JUDGMENT (a) Delay in applying for summary judgment Application after defence has been served Comptroller-General of Inland Revenue, Malaysia v Weng Lok Mining Co Ltd [1969] 2 MLJ 98 High Court, Kuala Lumpur Cases referred to:- () Melardy v Slateum (1890), 24 QBD 504. (2) Comptroller of income Tax v A Company Ltd [1966] 2 MIJ 282. (3) Comptroller of Income Tax v RST [1962] MlJ 216. (4) Jacobs v Booth’s Distillery Co (1900), 85 LT 262,HL. RAJA AZLAN SHAH J: The plaintiff claimed, by way of a specially endorsed writ of summons, a sum of $85,150.74 being the alleged amount of income tax and penalty due and payable by the defendant company under section 86(1) of the Income Tax Ordinance, 1947. The writ was issued on 4th October, 1968 and an appearance was entered on the 15th October and subsequently a defence was filed on 31st October, 1968. The plaintiff took no further steps until 31st January, 1969 when he filed an application for summary judgment under Order 14 by way of summons in chambers. Thereupon the defendant company sought to set aside the summons on the ground that undue delay on the part of the plaintiff would disentitle him to summary judgment. Counsel for the defendant company cited the case of McLardy v Slateum™ in support of his contention. In that case an application for summary 818SUMMARY JUDGMENT judgment was successfully made one month after a defence was filed. The position is clearly stated by Pollock B at page 506: The view taken by other judges, and by the masters, is that the intention of Order 14,1 1 was that the plaintiff should app'y within a reasonable time after the appearance of the defendant, but tha: it very often happens that a defence, which has been delivered, itself discloses facts which make an application under Order 14 right and proper. We think that this is the proper construction of the rule.... Although the primary intention of the rule may be that an application should be made before defence has been delivered in the ordinary course, yet we think that it is not in all cases compulsory. Therefore our judgment upon this point of law and practice is that a plaintiff is not necessarily too late in making his application under Order 14, r I because a defence has been delivered... If a plaintiff makes his application after the ordinary time, the onus is on him to shew that the delay is justifiable under the special circumstances of the case. Counsel for the plaintiff contended that the delay was reasonable and preferred the following reasons, namely, that the Department of Inland Revenue is a very large department, heavily loaded with work and shorthanded; and the situation was aggravated by the intervening Puasa hours, court vacation and festivities, namely Hari Raya Puasa, Christmas and the New Year holidays. In the light of what has been stated, I am disposed to hold that the delay of a lapse of 3 months in the circumstances of the case is not inordinate and does not warrant a dismissal of the application. The course that I have taken is further strengthened and justified by the findings I have made below. It will be convenient to look at the pleadings in this case and to consider the defence in the light of whether it is bona fide or whether it raises any triable issues. The amount of income tax claimed by the plaintiff, as stated earlier, is in respect of years of assessment 1964, 1965 and 1966 inclusive of penalties imposed. As stated in paragraph 6 of the statement of defence the assessments in respect of the three years were made under dispute but there is nothing on record to show whether there was any appeal made to the Special Commissioners of Income Tax. The issues as raised in the statement of defence are matters which ought to be determined by the special commissioners and the machinery for appeal against an assess- ment is clearly provided for in section 74 et seq. of the Ordinance. It is of significance to note that the levying of tax must be distinguished from the assessment of income; the latter is eminently a matter for the special commissioners. Section 82 of the Income Tax Ordinance, 1947 states: Subject to the provisions of section 87 of this Ordinance, tax for any year of assessment levied in accordance with the provisions of section 38 or 39 of this Ordinance shall, notwithstanding any cbjection or appeal against the assessment on which such tax is levied, be payable at the place stated in the notice given under section 72 of this Ordinance within one month after the service of such notice; The law on this point is well established and requires no further elucidation. Choor Singh J in the case of Comptroller of Income Tax v A 819PRACTICE AND PROCEDURE Company Ltd® expressed the following view: In my opinion, once the Comptroller of Income Tax has made an assessment and issued a notice of assessment to a taxpayer calling upon him to pay the tax mentioned in the notice, the taxpayer is bound by law to pay such tax within one month even though he may be dissatisfied with the assessment. Whether the assessment is right or wrong, the tax must be paid notwithstanding any objection or appeal. The scheme of the Income Ordinance is that if any person disputes the assessment, he may apply to the Comptroller to review and revise the assessment made upon him. If the Comptroller refuses to amend the assessment, the aggrieved taxpayer may appeal to the Board of Review appointed under section 78 of the Ordinance and the board may, after hearing the appeal, confirm, reduce, increase or annul the assessment or make such order thereon as it may deem fil. The taxpayer or the Comptroller may then appeal to the High Court on the decision of the board upon any question of law or mixed law and fact. A taxpayer has no right to by-pass the Board of Review and take his complaint direct to court. And when the Comptroller of Income Tax sues a taxpayer to recover tax due under a notice of assessment, the taxpayer cannot be heard to say that the assessment on which tax has been levied was not made in accordance with the provisions of the Ordinance. Such a complaint must in the first instance be laid before the Board of Review. The provisions of Order 14 of the Rules of the Supreme Court must be read together with the provisions of the Income Tax Ordinance. If this is not done, every unwilling taxpayer will refuse to pay tax and when sued in court, would challenge the merits of the assessment, thus causing considerable delay in the collection of the tax. The proper course for every aggrieved taxpayer is to pay his tax and present his arguments against the assessment made upon him before the Board of Review. It will be observed that the provisions of the Singapore Income Tax Ordinance are virtually identical with the corresponding provisions of the Income Tax Ordinance in the States of Malaya (except that they differ in the numbering of the sections). The other case in point is the Comptroller of Income Tax v RST® where Tan Ah Tah J (as he then was) observed: It was contended by counsel for the defendant that certain triable issues had been raised and that therefore the defendant should have been given leave to defend his action. One of these issues was said to be whether or not the sums on which tax is now claimed represent chargeable income which is taxable or capital assets not subject to taxation. On this point it is sufficient to say that it is eminently a matter for the determination of the Board or Review which was constituted under the Income Tax Ordinance to determine, inter alia, question of that very nature. Another point raised on behalf of the defendant concerned the tax claimed for the year of assessment, 1951. It was said that if the amounts received by the defendant could be considered to be income, such income was exempt from tax as it arose from sources outside Singapore and was received by the defendant while he was in Singapore for some temporary purpose. This again is a matter for the determination of the Board of Review. 820SUMMARY JUDGMENT Having considered all aspects of the case, | am satisfied that there is no question of fact or law which ought to be tried or argued in this case; and I am further satisfied that the defendant company has not shown that it has a bona fide defence. If the plaintiff is precluded from the application for summary judgment, it would only mean unnecessary prolongment of the case, resulting in a waste of time and added expense for the defendant company. This would be an opportune juncture to quote a familiar dicta of Halsbury LC in Jacobs v Booth’s Distillery Co.” People do not seem to understand that the effect of © 14 is that, upon the allegation of the one side or the other, a man is not to be permitted to defend himself in a court; that his rights are not to be litigated at all. There are some things too plain for argument; and where there were pleas put in simply for the purpose of delay, which only added to the expense, and where it had not been in aid of justice that suca things should continue, O 14 was intended to put an end to that state of things, and to prevent sham defences from defeating the rights of the parties by delay, and at the same time causing great loss to the plaintiffs who were endeavouring to enforce their rights. Acertificate under section 86(3) of the Income Tax Ordinance has been produced, and I accordingly allow the plaintiff’s application in terms of the summons in chambers. Application allowed. R Padmanabhan for the Applicant. ST Chung for the Respondent. (b) Unconditional leave to defend if there is a triable issue United Malayan Banking Corporation Berhad v Palm & Vegetable Oils (M) Sdn Bhd & Ors [1983] 1 MIJ 206 Federal Court, Kuala Lumpur Coram: Raja Azian Shah Ag LP, Salleh Abas and Abdul Hamid FJ Cases referred to:- (1) Gold Ores Reduction Co v Farr [1892] 2 QB14 (2) Cuckmere Brick Co Ltd & Anor v Mutual Finance Ltd (1971] Ch 949. (3) Duke v Robson [1973] 1 All ER 481, 488. () Standard Chartered Bank v Walker & Anori The Times, dated June 21, 1982. (3) Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643, 651 RAJA AZLAN SHAH Ag LP (delivering the judgment of the Court): The brief facts of this matter are that in consideration of guarantee agreements dated June 1, 1976 for the sum of $5 million in respect of a fixed loan to the Ist respondent for that amount and letters of gua~ rantee and indemnity dated September 1, 1976 for credit facilities 821