[13] Pleadings, Amendment & Striking-Out

CHAPTER 13
Addendum

[13.02] P begins the pleading process by serving his Statement of Claim which is a
statement, in a summary form, of the material facts on which P relies upon to found his
cause of action.1 D responds by serving a Defence by which he informs P the extent to
which he intends to challenge P’s case and state the facts on which D will rely on to
resist P’s claim. D may also raise additional matters in his Defence. So for example, he
might justify non-performance of a contract on the grounds of illegality, frustration,
duress or come other defence.2 If P disagrees with D’s contentions, he does not have
to respond. This is so because he is deemed to have denied D’s allegation and put
them in issue. This is the principle of Joinder of Issues.3 However, if P intends to raise
e issues which must be specifically pleaded, he must serve a Reply.4 For example, if
P, in a libel action, intends to challenge the defences of fair comment and qualified
privilege on the basis that D made the defamatory statements maliciously, he would
have to serve a Reply alleging that malice.5

[13.05] .. In Saiman Umar v Lembaga Pertubuhan Peladang6 P issued

proceedings against D for unlawful dismissal. The issue in the Federal Court was
whether an investigation committee had been established by the disciplinary
committee, pursuant to Reg 28(4) of the Peraturan-peraturan Pegawai Lembaga
Pertubuhan Peladang (Kelakuan dan Tatatertib) 1994, for the purpose of obtaining
further clarification. The issue turned on the pleaded cases of the parties.

P, in para 22 of the Statement of Claim, pleaded: “Plaintif menyatakan bahawa

tindakan Defendan telah melanggar peruntukan 28 Peraturan-Peraturan Pegawai LPP
(Kelakuan Tatatertib 1994) iaitu Defendan gagal menubuhkan jawatankuasa siasatan
dan gagal memanggil saksi-saksi untuk diperiksa dan disoal balas.”

In paras 8.1 and 8.2 of the Defence, D pleaded: “8.1. Tambahan kepada itu, Defendan
menyatakan bahawa Encik Madzlan bin Abdul Rahman telah juga diminta untuk hadir
untuk memberi keterangan berkenaan dengan surat akuan bersumpah yang kononnya
telah ditandatangani olehnya pada 9.9.2000 dan surat bertarikh 6.9.2000 tetapi beliau
telah enggan untuk berbuat demikian. 8.2. Walau baqaimanapun, Encik Madzlan bin
Abdul Rahman telah enggan untuk hadir dan memberi pengesahan sama ada beliau
telah menandatangani surat dan surat akuan tersebut walaupun cukup notis telah
diberi kepadanya.” In para 5 of his Reply, P pleaded: “Melainkan apa yang telah
sebelum ini diakui, Plaintif menafikan setiap satu dan semua tuduhan yang terkandung
di dalam Pernyataan Pembelaan.”

1
O18 r7, which was explained in Re The Estate of Lee Siew Kow [1951] MLJ 224 to mean that “the
pleading should state those facts which will put the defendants on their guard and tell them what they
have to meet.”
2
O18 r8
3
O18 r14
4
O18 r8
5
O78 r3(3)
6
[2015] 9 CLJ 153

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 [13] Pleadings, Amendment & Striking-Out

The High Court held that as there was “no evidence to show that an investigation
committee was appointed”, D was in breach in the rules of natural justice by not giving
P an opportunity to be heard when it did not hold a hearing. The High Court
accordingly held in favour of P.

The Court of Appeal allowed D’s appeal. It held that Reg 25(1) (which provides that no
officer can be dismissed or reduced in rank in any disciplinary proceedings unless he
is informed in writing about the intended disciplinary proceedings and that he is given a
reasonable opportunity to be heard) had been complied with by D, given that P was
served with a show cause letter informing him about the charges preferred and that he
was given two months to reply to the letter before the disciplinary committee finally
decided to dismiss him from his employment. Relying on Ghazi bin Mohd Sawi v
Mohd Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 MLJ 114, the
Court of Appeal held that from the evidence it was clear that P had been given a
reasonable opportunity to be heard as he had been given sufficient time to reply to the
show cause letter.

The Federal Court dismissed P’s appeal on a pleading point. D argued that P’s
pleaded claim was that D had breached Reg 28(4) when it failed to establish an
investigation committee but his position in court was that an investigation committee
under Reg 28 was established and that he was not called upon to attend it. P argued
that D had made an admission in his Defence regarding the formation of the
investigation committee. On the basis of this admission, P argued that the investigation
committee was in fact established but he was not notified of the date and time of the
inquiry before the investigation committee and accordingly, he was not given the
opportunity to be present at the hearing. and was deprived of the right to cross-
examine the witnesses and also to produce any witnesses or evidence to rebut,
contradict or explain further to the investigation committee. As a result, P argued, the
disciplinary proceedings had infringed the Disciplinary Rules. The High Court made a
factual finding that “there is no evidence to show that an investigation committee was
appointed”. In the Federal Court, Azahar Mohamed FCJ, after reiterating the principle
that parties are bound by their pleadings7 and referring O18 r13, said:

“[47] .. a traverse operates to deny an allegation of fact .. the effect of a general traverse is
8
to deny each and every factual allegation raised by the opposing party .. the obvious
consequence of the general traverse contained in para. 5 of the plaintiff's [Reply] was to
deny the defendant's factual allegation that an investigation committee was in fact
established. It has to be pointed out that the plaintiff's denial of the establishment of the
investigation committee was in direct contradiction of its present contention that an
investigation committee was in fact formed under reg. 28(4) of the Disciplinary Rules.

7
“It is a well-settled legal principle that the court should not decide on an issue that was not pleaded by
the parties as had been decided in [Janagi] .. We should remind ourselves that parties to an action are
bound by their own pleadings. It is therefore necessary to make the point that the court is also bound by
the pleadings in as much as the parties themselves. The most important purpose of pleadings is to plead
reasonable cause of action, define the issues of fact and questions of law to be determined by the court. It
is a valid argument to make that the court is constrained to decide an action on which no issue has been
raised by the parties in their respective pleadings ..”
8
Borneo Housing Mortgage Finance Bhd v Personal Representative of the Estate of Lee Lun Wah
Maureen & Anor [1994] 1 MLJ 209; John Lancaster Radiators Ltd v General Motor Radiator Co Ltd
and Others [1946] 2 All ER 685 and Warner v Simpson [1959] 1 QB 297.

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 [13] Pleadings, Amendment & Striking-Out

[48] .. [P submitted] that as a result of the general traverse, the onus of proof had shifted to
the defendant to prove that the investigation committee was in fact established for the
purpose of obtaining further clarification by way of examining witnesses. With respect, we
are not persuaded with this line of arguments. For the purposes of this appeal, it is
necessary to bear in mind that from the outset it was upon the plaintiff himself, and certainly
not the defendant, to discharge the overall burden of proving his case and satisfy the court
on a balance of probabilities that his claim as pleaded in the statement of claim was well
founded before the court could grant judgment in his favour ..
The stand taken by the defendant not to prove the said averments was of the defendant's
9
choice. However, that did not absolve the plaintiff from discharging the overall burden of
proving his claim.

[49] Even more significantly, as submitted by the defendant's learned counsel, the plaintiff in
his [Reply] did not make any admission against the facts averred in the defendant's
[Defence]. To be more specific, the plaintiff did not admit paras. 8.1 and 8.2 of the [Defence]
to support his contention that an investigation committee was in fact established and that he
was not called for the hearing. We should also note that it would be a different thing if the
plaintiff admitted to those paragraphs in his [Reply]. But most problematically, and it gets
worse for the plaintiff when he denied the said paras. 8.1 and 8.2. The contradiction was
never fully resolved. To be sure, what all the [Reply] contained was merely a series of
denials and a general traverse clause at the end. In truth, the tenor and thrust of the
plaintiff's [Reply] is a total rejection of the defendant's factual averments.

[50] In our judgment, the defendant's averments in paras. 8.1 and 8.2 of the [Defence]
ultimately have no bearing on the plaintiff's case. The fact that the defendant pleaded in that
fashion did not alter the fact that the plaintiff's pleaded case was his dissatisfaction with the
non-formation of the investigation committee. Now, before this court, the plaintiff was trying
to argue something quite different from his pleaded case even without the support of
evidence. But as we have said earlier, the law is trite that the court should not decide an
issue, which was not pleaded by the parties.”

9
The principle is that a person who asserts the existence of any fact must prove that the fact exists -
Syarikat Kemajuan Timbermine Sdn Bhd v. Kerajaan Negeri Kelantan Darul Naim [2015] 2 CLJ
1037. It is based on the Latin maxim ei incubit probatio qui dicit non qui negat (he who asserts must
prove).

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