Topic 3 Parties

Introduction
In Topic 1, for there to be a valid suit there must be a COA. There are 3 elements to establish COA, i.e. there
is a COA, and there is a person to sue and a person to be sued. This topic will decide the issues of
- Who can sue? (as P)
- Who can be sued? (as D)
In order to sue or defend a case, both the Plaintiff and Defendant must have the capacity to sue or defend.
Therefore, both must be of
i) sui juris (of the age of majority)
ii) right of mind; and
iii) acting either personally or in representative capacity

Who can initiate / defend an action?

Generally under O5r6 RHC or O4r6 SCR
O5r6(1) Subject to paragraph (2) and to Order 76, rule 2, any person (whether or not he sues as a trustee or
personal representative or in any other representative capacity) may begin and carry on proceedings in the High
Court by a solicitor or in person.

O5r6(2) Except as expressly provided by or under any written law, a body corporate may not begin or carry on any
such proceedings otherwise than by a solicitor..

Note: O4r6 SCR similar with the above except it is subject to O9r2(2) SCR.

1) Person under disability [O76 RHC / O9 SCR]

 Who is a person under a disability?
O76r1 “person under disability” means a person who is an infant or a patient.
A person who is below the age of majority or is one who is not in his right mind, i.e. infant/minor or
patient

 Who is a patient?
O76r1 “patient” means a mentally disordered person within the meaning of the Ordinance.
See Mental Disorders Ordinance 1952

 How can a disabled person sue?

O76r2(1) – A disabled person cannot sue in his own capacity
– Can only sue by his next friend and be defended by his guardian ad litem
O76r2(3) – A next friend or guardian ad litem of a person under disability must act by a solicitor.
O76r7 – Next friend and guardian ad litem must file consent in Form 189 within 14 days after service
of order or appointment

 How to serve cause papers on disabled?

O76r14(2) Subject to the following provisions of this rule and to Order 24, rule 16(3), and Order 26, rule 7(3),
the document must be served-
(a) in the case of an infant who is not also a patient on his father or guardian or, if he has no father or
guardian, on the person with whom he resides or in whose care he is;
(b) in the case of a patient, on the person (if any) who is authorized under the Ordinance to conduct in the
name of the patient or on his behalf the proceedings in connection with which the document is to be served
or, if there is no person so authorized, on the person with whom he resides or in whose care he is;
and must be served in the manner required by these rules with respect to the document in question.

For infant Patient

- by father or guardian - on the person authorized to conduct in the
- if no father or guardian, on the person whom name of the patient
he is residing with or in whose care he is in - if no such person, then on whom he resides or
take care of him

 What mode of serving?

O76r14(1) Where in any proceedings a document is required to be served personally on any person and that
person is a person under disability this rule shall apply.

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2) Incorporated bodies
Definition
s4 Companies Act 1965
“corporation” means any body corporate formed or incorporated or existing within Malaysia or outside Malaysia
and includes any foreign company but does not include -
(a) any body corporate that is incorporated within Malaysia and is by notice of the Minister published in the
Gazette declared to be a public authority or an instrumentality or agency of the Government of Malaysia or
of any State or to be a body corporate which is not incorporated for commercial purposes;
(b) any corporation sole;
(c) any society registered under any written law relating to co-operative societies; or
(d) any trade union registered under any written law as a trade union;

A corporation can sue or being sued in its own name.

Service of papers or documents
- s350 Companies Act 1965
- O62r4 RHC
All proceedings must be done through their lawyers
O5r6(2) Except as expressly provided by or under any written law, a body corporate may not begin or carry on
any such proceedings otherwise than by a solicitor.

3) Firms (Partnership) [O77 RHC / O10 SCR]

O77r1 Subject to the provisions of any written law, any two or more persons claiming to be entitled, or alleged
to be liable, as partners in respect of a cause of action and carrying on business within the jurisdiction may sue
or be sued, in the name of the firm (if any) of which they were partners at the time when the cause of action
accrued.
In short, may sue or be sued in either the name of the firm; or in the personal names of the partners.

▪ Madan Lal v Ho Siew Bee [1983] 1 MLJ 105

RP (landlords) of a controlled premise applied to the Rent Tribunal for the determination of the fair
rent under s3 Control of Rent Act 1966. The landlords had named “Hansray Daulatram” a
partnership firm, as the tenants in the application.
Rent Tribunal: Dismissed landlord’s application. The firm had been named as the tenants and that it
was not a legal persona.
Rent Appeal Board: Appeal allowed. Partners of the firm applied for certiorari against the decision
of the Rent Appeal Board.
Held: A partnership firm’s name is not a legal persona. Hence, it cannot hold a tenancy, nor can it
be a party to a suit on the courts or before any tribunal.
The Order of the Rent Appeal Board was therefore a nullity and should be removed and quashed.
Application allowed.
(Compare with Wee Tiang Kheng case.)

4) Sole proprietorship [O77r9 RHC / O10r9 SCR]

O77r9 An individual carrying on business within the jurisdiction in a name or style other than his own name may
be sued in that name or style as if it were the name of a firm, and rules 2 to 8 shall, so far as applicable, apply
as if he were a partner and the name in which he carries on business were the name of his firm.

▪ Wee Tiang Kheng v Ngu Nil Soon & Ors [1989] 1 MLJ 252
P registered owner of shop-house. D1 main tenant, D2 (firm) subtenant, D3 is sole proprietor of D2.
P obtained judgment in default, which D2 & D3 apply to set aside. Ds submitted that:
1. O77 r 9 RHC 1980 did not enable P to join both the D2 and its proprietor as parties in this action
as D2 being a partnership firm without a legal persona, was not capable of holding any tenancy
and there was no basis in law to name it as a party to the proceedings.
2. The judgment as mesne profits was unsustainable because P’s allegation of the monthly rental
was not the agreed rent.
Held: O77 r9 makes a person carrying on business within the jurisdiction in a name or style other
than his own name liable to be sued in that name or style as if it were the name of a firm. It is a
permissive provision. It does not restrict the person to be sued only in that name or style. In the
instant case, no prejudice or injustice would be caused to the proprietor of a business if he is sued in
the name of the business.

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 P may claim mesne profits at a rate higher than the rate of the agreed rent. However, if the
indorsement of claim does not disclose the amount of the agreed rent, the practice is that judgment
in default can only be entered for mesne profits to be assessed. The burden lies on P to adduce
evidence to establish that the higher rate as claimed is reasonable and ought to be granted. In this
case, not only was the allegation in the statement of claim not the agreed rent, P had claimed mesne
profits a great deal more than what is regarded as the open market value, which far exceeded the
agreed rent. Default judgment set aside in the interest of justice.

Note:
- D in this case, raised issue in Madam Lal claim that firm cannot be sued. However, the court
allowed a firm to be joined in as a defendant, unlike in Madam Lal, on reasons that D3 is the
sole proprietor of D2, both of which are one and the same.
- In Madam Lal, the issue was whether the name of a partnership firm is or can be the tenant.
Also, the partners of the firm were not made parties to the proceedings, hence it was not
allowed.

5) Government [O73]
Government Proceedings Ordinance 1956 &
O73 – may sue or be sued in its name

6) YDP
Art 32 – Not eligible to any civil proceeding except in the special court.

7) State Rulers
Art 181(2) – no proceedings against personal capacity except in special court
Composition of the special court: Lord President, CJ of HC, and 2 other person

Art 183 – the proceeding must be brought with the consent of the AG

▪ Dytm Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v Dikim Holdings Sdn Bhd & Anor
[2002] 3 CLJ 69, FC
P a member of the Royal Family of Selangor, sued D in the HC for the unpaid balance of the
purchase price of certain shares purchased by D. D counterclaimed. Subsequently, P was appointed
Regent of Selangor.
Issues referred to FC: Whether P’s claim and D’s counterclaim should be adjudicated in the Special
Court to the exclusion of the HC of Malaya?
Held: P as the Regent of Selangor was not a ruler within Art 181, Art 182 and Art 183 FC. As such,
P’s suit was still triable in the HC.

▪ Dytm Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v Dikim Holdings Sdn Bhd & Anor
[2003] 1 CLJ 801, FC
After the first case was decided, P became the Ruler of Selangor upon the demise of his father.
Issues referred to FC for the second time:
1. Whether P was now a ruler within Art 181, Art 182 and Art 183 FC?
2. Whether HC continued to have jurisdiction to adjudicate the suit?
3. If not, whether the suit could be transferred by the HC to the Special Court or whether the
suit had to be withdrawn and re-filed in the Special Court?
Held:
1. The right of succession as the Ruler of the State of Selangor was guaranteed to P by Art 71(1).
Therefore, P was a “Ruler” like his father in the full sense of that word by virtue of Art 181(1)
of the same. What differentiated him now as a Ruler from his previous status as a Regent was
the most important attribute of sovereignty that His Highness now possessed and which was
previously lacking in him as a Regent. With the attribute of sovereignty, P would have been
immune to all proceedings brought against him in his personal capacity prior to the amendment
to Art 181(2). However, after the amendment to the article by Act A848, such sovereign
immunity had been demolished so that P, although a Ruler now, was liable to be sued in his

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 personal capacity. Such proceedings whether by or against P in his personal capacity must be
brought in the Special Court.
2. P’s suit was brought before P was officially the Ruler of the State of Selangor. Based on the
principles of the law on accession, the Latin maxim ‘rex nunquam moritur’ stated in Halsbury
and Art 181(1), it was irrelevant to the construction or meaning of “Ruler” when the cause of
action arose. Upon P’s accession as a Ruler, Art 181(2) operated to bar the suit in the HC, hence
HC ceased to have jurisdiction over P and could no longer continue to exercise jurisdiction to
adjudicate on the suit. P now comes within the exclusive jurisdiction of the Special Court.

3. Art 121 expressly provides that “the HC and inferior courts shall have such jurisdiction and
powers as may be conferred by or under federal law”. Such powers of transfer are contained in
the CJA 1964 and SCA 1948 and do not extend to the Special Court. The jurisdiction of the
Special Court is both original and final, the decision of which cannot be challenged in any court
on any ground. Therefore, the HC has no power to transfer the suit to the Special Court.

4. P’s constitutional position upon accession as Ruler was safeguarded by Art 70(1). Under Art
38(4) no law directly affecting his position and dignity shall be passed without the consent of
the Conference of Rulers. Therefore, the suit pending in the HC must be withdrawn.
However, Art 183 provides a solution without having to compromise the dignity and position of
P as Ruler or D’s rights to counterclaim against P. The action would have to be commenced
afresh by P in the Special Court and consent of the AG sought and obtained by D to
counterclaim against P.

8) Foreign sovereign / foreign states

One cannot sue a foreign sovereign / reigning King or Queen in any Malaysian Court.
▪ Mighel v Sultan of Johore (1897) 1 QB 145
Sultan of Johor had promise to marry P but subsequently refused to honor his promise to marry her.
P brought an action against D for breach of promise to marry.
Held: A foreign sovereign should not be sued.

▪ Duff Development Co. v Government of Kelantan (1924) AC 797

▪ Village Holdings Etc v Her Majesty The Queen of Right of Canada [1988] 2 MLJ 656
P entered into a S&P agreement with D. P failed to complete the agreement within time and D
terminated it. According to the terms of the agreement, D forfeited all sums paid by P to D under the
agreement. P took out a writ against D. Many attempts were made to serve the writ at the Canadian
High Commission who resisted. Eventually it was left with a Malay female member of the staff. D
filed conditional appearance and applied for the writ and the purported service thereof to be set
aside.
Held: D is not subject to the jurisdiction of the court and the writ must be set aside
1. Where there is sovereign immunity, service can only be effected if the sovereign ruler or
government submits to the jurisdiction of this court. In the present case, there never was any
submission. The purported service was not only factually ineffective but also in violation of a
statute. On that ground alone, there was no proper service as required by law or at all.
2. So far as a foreign sovereign is concerned, s3 CLA 1956 leaves no room for any doubt that
Malaysia continue to adhere to a pure absolute doctrine of state immunity when it comes to the
question of impleading a foreign sovereign who declines to submit.
3. P knew that D would refuse to submit to the jurisdiction if it was sued, this suit was an act of
lese-majeste and clearly misconceived. The manner in which P’s solicitors went about trying to
get it served was an abuse of the process of this court and an affront to the defendant.

9) Foreign Mission in Malaysia

Depends on the rank of the officer and some acts of foreign mission are protected from being sued
Involve various Acts:
- Diplomatic & Consular Privileges Ordinance 1957
- Diplomatic Privileges (Vienna Convention) Act 1966

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 - International Organisation (Privileges & Immunities) Act 1992
- Societies Act 1966
However locals employed in these foreign missions are not protected by the diplomatic immunity.

10) Societies registered under Societies Act 1966

s9(c) Societies Act 1966. The following provisions shall apply to registered societies – a society may sue or be
sued in the name of such one of its members as shall be declared to the Registrar and registered by him as the
public officer of the society for that purpose, and, if no such person is registered, it shall be competent for any
person having a claim or demand against the society to sue the society in the name of any office-bearer of the
society;

Registered society can be sued

i) in the name of its members declared to the Registrar and registered as public officer
ii) in the name of any office bearer

▪ Mohd Latiff v Tengku Abdullah & Ors [1955] 2 MLJ 1

Held: A person may commence a legal action in the capacity of his/her individual right as a member
of a society i.e. in a representative capacity even though he is not a public officer.

11) Trade Union

s2 Trade Union Act 1959 – may sue or be sued under the name by which it was registered.

12) Estate of a deceased person

GR: Right to sue or be sued shall survive against the estate of the deceased upon his death.
Exceptions: defamation, seduction, inducing one’s spouse to leave or remain apart from the other,
damages due to adultery
s8(1) CLA Subject to this section, on death of any person all causes of action subsisting against or vested in
him shall survive against, or, as the case may be, for the benefit of, his estate:
Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one
spouse to leave or remain apart from the other or to any claim for damages on the ground of adultery.

s8(3) CLA No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this
section has survived against the estate of a deceased person, unless proceedings against him in respect of
that cause of action either -
(a) where pending at the date of his death; or
(b) are taken not later than six months after his personal representative took out representation.

▪ Lee Lee Cheng v Seow Peng Kwang [1960] MLJ 1

P (widow and Administrator of the Estate of Gooi Kim Kwan) sued D (Administrator of Loke Ta
Poh) for damages for negligent driving . Both deceased had died in that accident. D in his defence
claim that P’s action was not commenced before the expiration of 6 months from the date 8/8/1957
which D took out representation to the estate. Thus P’s cause of action filed on the 17/2/1958 is
barred under s8(3)(b) Civil Law Ordinance 1956.
Issues: (i) When does the limitation period start running? (ii) Whether limitation period can be
enlarged?

Held: Appeal dismissed.

1. The time prescribe by s8(3)(b) Civil Law Ordinance 1956 commenced to run against P on day
the grant was extracted 8/8/1957. As P’s action was filed on 12/2/1958 it was bared by
limitation.
2. The courts have no power to extend limitation period. The period prescribed by s8(3)(b) Civil
Law Ordinance 1956 was a period of limitation. Item 12 Part A 2 nd Schedule Courts Ordinance
1948 was merely declaratory of the jurisdiction of the HC to enlarge the time prescribed by any
written law for doing any act or taking any proceeding, always providing there was express
provision in the particular written law itself which enabled such time to be so enlarged.

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13) Testate
Procedure for testate:
Upon death  all rights and interest will be vested on executor according to the will
 executor will make an application for the grant of probate i.e. where court will approve
him as executor and he has formally accept the post
 upon being granted the order by the court, must wait for extraction (can be for a few
months)
 upon extraction of the grant of probate will the process be completed

The executor of the estate will have power whether:-

i) To institute the proceedings on behalf of the deceased estate
- may do so even before extraction of the Grant of Probate

ii) To defend the estate

- P may not sue an executor of a deceased estate before extraction of Grant of Probate.

▪ Meyappa Chettiar v. Subramaniam Chetty (1916) 1 AC 608

Lord Parker of Waddington:
It is quite clear that an executor derives his title and authority from the will of his testator and not
from any grant of probate. The personal property of the testator, including all rights of action,
vests in him upon the testator's death, and the consequence is that he can institute an action in
the character of executor before he proves the will. He cannot, it is true, obtain a decree before
probate, but this is not because his title depends on probate, but because the production of
probate is the only way in which, by the rules of the Court, he is allowed to prove his title.

Executor cannot be sued unless the grant of probate has been extracted by the court.
▪ Mohamido Mohideen Hadjiar v Pitchey (1894) AC 437, PC

14) Intestate
An administrator will be appointed and he/she will then apply for letters of administration (LA) which
will then have to be extracted. An administrator may not sue or be sued before extraction of the LA.

▪ Ingall v Moran (1944) 1 All ER 97

▪ Ang Hoi Yin v Sim Sie Hau [1969] 2 MLJ
Held: An administrator cannot sue before LA are extracted.

▪ Controller of Income Tax v Yan Tai Min [1965] 1 MLJ 225

Held: An administrator cannot be sued before LA are extrated.

▪ Ruhani bt Mohiat & Anor v Adbul Karim & Anor [1993] 3 CLJ 524, HC Kuantan
P filed a suit against D as administrators of Ahmad (Decease) on 14/3/1985. Deceased had been
killed in an accident involving his motorcycle and a bus driven by D1. Deceased was not wearing a
safety helmet at the time of the accident. P1 was the widow of the deceased, whilst P2 was the
owner of the motorcycle which has involved in the accident. P had been granted LA on 11/5/1984,
however were extracted only on 6/5/1991. D made a preliminary objection that P had no capacity to
sue as administrators as they were not in possession of the LA at the time of the filing of the suit.
Held: P had capacity to sue as administrators of the deceased, as the LA had already been granted to
them before the date of the filing of the suit. A person is vested with the power to administer the
estate of the deceased from the date an order granting him the LA is made on an application by way
of petition as required under O71r5(1) RHC 1980. The word ‘administrator’ under s2 Probate and
Administration Act 1959 (PAA) means ‘a person to whom administration is granted’. Furthermore,
the granting of LA is not done simply as a matter of course. The Court is vested with discretionary
powers under s30 PAA. Rights and liabilities accrue upon the grant being made, as provided by s31.
The extraction of the LA only serves as evidence to the world at large that the person named in the
grant is the administrator of the deceased, the grant taking effect from the date the petition for LA is
allowed and the order granted.

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15) Deceased Plaintiff or Defendant
If a writ is issued in the name of a
i) Deceased plaintiff – nullity
ii) Deceased defendant – not nullity

2 situations
1. Prior to commencement of an action
Before an action is instituted against him, D dies
O15r6A(1) Where any person against whom an action would have lain has died but the cause of action
survives, the action may, if no grant of probate or administration has been made, be brought against the
estate of the deceased.

Period of service – within 1 year of writ being issued

Procedure of service – if the is no D to serve writ, P may apply to court to appoint s person to accept
on behalf or estate.
O15r6A(4)(a) the plaintiff shall, during the period of validity for service of the writ or originating summons,
apply to the Court for an order appointing a person to represent the deceased's estate for the purpose of
the proceedings or, if a grant of probate or administration has been made for an order that the personal
representative of the deceased be made a party to the proceedings, and in either case for an order that the
proceedings be carried on against the person appointed or, as the case may be, against the personal
representative, as if he had been substituted for the estate;

2. Midway through action

After an action is commenced, P/D dies after but COA survive, still valid
O15r7(1) Where a party to an action dies or becomes bankrupt but the cause of action survives, the action
shall not abate by reason of the death or bankruptcy

▪ Government of Malaysia v Taib b Abd Rahman [1991] 2 MLJ 175,

The courts have discretion to order another person to be substituted and the proceedings to be
continued. Further, the other person need not be a personal representative of the deceased P/D
defendant.

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Representative Action [O15r12(1) RHC / O8r12 SCR]
O15r12(1) Where numerous persons have the same interest in any proceedings, not being such proceedings as are
mentioned in rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or
against any one or more of them as representing all or as representing all except one or more of them

Main consideration – there must be a common interest and grievances amongst the parties
▪ Duke of Bedford v Ellis (1901) ACI
Held: A representative suit is in order if, the relief sought is beneficial to all whom P proposed to
represent, then these is a common interest & grievance.

▪ Smith v Cardiff Corporation [1953] 2 All ER 1373

D decided to increase rent of tenants in building. 4 tenants brought an action ‘on behalf of
themselves and all other tenants of the house’ claiming a declaration that the increase was ultra
vires, under the Housing Act 1936.
Held: Since scheme did not affect all counsel tenants adversely, their representative action brought
was misconceived.

▪ Atip Ali v Josephine Doris Nunis & Anor [1987] 1 MLJ 82

J had filed an action against the former CM of Melaka, claiming damages for breach of promise to
marry. Because of the promise, she had on various occasions rendered him sexual favours and had
also given up her job as a waitress. Also, due to the breach in promise, she had suffered mental
anguish and humiliation. The suit was discontinued and settled out of court.
However, Atip and few other members of UMNO Alai branch, sued J for defamation of the UMNO
members of Alai branch, through the publication of the contents of the writ against the CM.
Issues: Whether there they had locus standi to sue?
Held: Defamation was a personal action, and only an individual can sue for defamation. Hence, a
class of persons cannot be defamed. Atip and others had no legal interest and no locus standi to sue.

▪ Voon Keng v Syarikat Muzwira Development [1990] 3 MLJ 61

Held: P (house purchasers) were all members of the same class, had common grievance and the
relief sought was in a nature beneficial to all whom P represented. The representation action could
therefore continue.

▪ Mohd Latiff v Tengku Abdullah & Ors [1995] 2 MLJ 1

Ds were promoter of a club and were appointed to take necessary steps to obtain the registration of
the club. There were in fiduciary relationship with the club. There had been a breach of fiduciary
relationship between D and the club, the rights and members of the club were affected. All members
were liable to pay for the purchase price of the shares.
Held: Since all person who were represented by P have the same common interest in bringing the
action, they were entitled to bring a representative action under O15r12 notwithstanding the fact that
they were not Public Officers of the club.

P may apply to the court to appoint a representative for D.

O15r 2(2) At any stage of proceedings under this rule the Court may, on the application of the plaintiff, and on such
terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons as representing whom the
defendants are sued to represent all or all except one or more, of those person in the proceedings; and where, in
exercise of the power conferred by this paragraph, the Court appoints a person not named as a defendant, it shall
make an order under rule 6 adding that person as a defendant.

Commencement of proceedings:
- Representative action may be begun in the name of one or more person having the same interest and
representing all of them;
- In cases involving clubs/association, P may take representative action on behalf of himself or
representing them all
- The representative Ds, are sued in their own behalf or on behalf of all other members of the
unincorporated body/persons/clubs. The statement showing the representative character of the Ds,
must be endorsed on the writ.

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Effect of the judgment in a representative proceeding – binding on all
O15r12(3) A judgment or order given in proceedings under this rule shall be binding on all the persons as
representing whom the plaintiffs sue or, as the case may be, the defendants are sued, but shall not be enforced
against any person not a party to the proceedings except with the leave of the Court.

How the application is to be made?

Higher courts – by summons in chambers [O15r12(4)]
Lower courts – by notice of appeal [O8r12(4)]

Joinder of Parties [O15 r4 RHC/ O8 r4 SCR]

A) Joinder
O15r4(1) Subject to rule 5(1), two or more persons may be joined together in one action as plaintiffs or as
defendants with the leave of the Court or where-
(a) if separate actions were brought by or against each of them, as the case may be, some common question
of law or fact would arise in all the actions; and
(b) all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or
arise out of the same transaction or series of transactions.

 2 conditions:
i) Separate actions which may result in common question of law or fact
ii) Claims arise out of the same transaction or series of transaction
If the two conditions are not satisfied, joinder may be done with court’s leave.

▪ Markt & CoLtd v Knight Steamship Co Ltd [1910] 2 KB 1021, CA

Ship which where P’s goods were onboard was sunk by a Russian cruiser. P initiated a
representative action ‘on behalf of themselves and others owners of cargo lately laden on board the
steamship Knight Commander’, to claim for damages for breach of contract and duty in the carriage
of goods by sea.
Held: P and those whom they purported to represent were not ‘persons having the same interest in
one cause or matter’. Shippers of goods in a general ship could not have ‘the same interest in one
cause or matter" within the meaning of that rule’. Also, no representative action can lie where the
sole relief sought is damages. Thus, Ps were not entitled to bring or maintain representative actions.

 Reason for joinder

Example:
P suing driver of a vehicle for negligent driving and omitted to included owner of vehicle as co-
defendant. P may with leave of court, apply to join owner of vehicle as D. Court may allow
application if conditions under O15r4(1) are complied with.

O15r4(2) – Joinder of Plaintiff

O15r4(3) – Joinder of Defendant

 What is ‘common question of law’?

▪ Asas Cergas Sdn Bhd & Anor v Sin Kean Boon Metal Industries Sdn Bhd [2003] 4 AMR 89

O15r5 – Discretion of court to order separate trials

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B) Misjoinder and Nonjoinder
Misjoinder – where a party has been mistakenly joined in the suit.
Nonjoinder – a party who should have been added in the first place was omitted

 What is the effect if a party is mistakenly joint or not joint?

O15r 6(1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the
Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights
and interests of the persons who are parties to the cause or matter

 When the application may be made?

At any stage of the proceedings
- on its own motion, or
- by application with court’s leave

O15r6(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just
and either of its own motion or on application-
(a) order any person who has been improperly or unnecessarily made a party or who has for any reason
ceased to be a proper or necessary party, to cease to be a party;
(b) order any of the following persons to be added as a party, namely-
(i) any person who ought to have been joined as a party or whose presence before the Court is
necessary to ensure that all matters in dispute in the cause or matter may be effectually and
completely determined and adjudicated upon, or
(ii) any person between whom and any party to the cause or matter there may exist a question or issue
arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which
in the opinion of the Court it would be just and convenient to determine as between him and that party
as well as between the parties to the cause or matter.
but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as
may be authorised.

O15r2(a) – Application to strike out a party O15r2(b) – Application to add a party

- wrongly included party (either P/D) may have his
name removed or struck out from a proceeding
- person not joined as a party, may be included in
the suit
- P cannot be added unless he consents in writing
- If P refuses, may be add as D [O15r4(2)]
- P may add D to his claim
- D may add co-D

In short, upon commencement of action

1. P may apply to add co-P
2. P may apply to add additional D
3. D may apply to add co-D
4. party may apply to be struck out
5. stranger may apply to intervene (see below intervener)

 How to make such application? through summons supported by affidavit)

O15r6(3) An application by any person for an order under paragraph (2) adding him as a party must, except
with the leave of the Court, we supported by an affidavit showing his interest in the matters in dispute in the
cause or matter or, as the case may be, the question or issue to be determined as between him and any party
to the cause or matter.

 What is the object of O15 r 6(2)(b)?

Found in the case of Tajjul Ariffin v Heng Cheng Hong [1993] 2 MLJ 143, SC
- To prevent multiplicity of proceedings and to enable the court to determine disputes between all
parties to them in one action.
- To prevent the same or substantially the same questions or issues being tried all over again with
possibly different result.

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  Can P be compel by D to add co-D?
▪ Hee Awa & Ors v Syed Muhamad & Anor [1988] 1 MLJ 300, SC
Held: Co-D was allowed to be added to proceedings without P’s consent.
cf.
▪ Tajjul Ariffin v Heng Cheng Hong [1993] 2 MLJ 143, SC
Collision between 2 motorcycles. P passenger on one of the bike driven by C as agent for YH sued
D for damages. D applied to add C and YH as co-D and P amend statement of claim to include
them.
Sessions court: Allowed application for joinder, but disallowed application for amendment.
HC: Appeal dismissed.
Held: Appeal dismissed. The power of the court to add a D on the application of D, against the
wishes of P is entirely discretionary and the only fetter which O15r6(2)(b)(i) places upon the
exercise of the discretion is that it should be exercised where there may exist a question or issue
arising out of or relating to or connected with any relief or remedy claimed in the cause or matter
which in the opinion of the court, it would be just and convenient to determine as between the
person sought to be joined and that party as well as between the parties to the cause or matter.
P cannot be forced upon the application of D, to have a D2 against whom he does not wish to
proceed added, for the reason that the negligence of the intended D2 is not an issue involved in the
claim he has made and so he should be allowed to proceed against D of his choice.

▪ Abidin bin Umar v Doraisamy & Anor [1994] 1 MLJ 617

P sued D for damages arising out of an accident. P was lorry attendant of a lorry driver S. D1 while
driving a lorry owed by D2, collided with a stationary lorry. D applied by way of summons in
chambers to add S as co-D.
Issue: Whether Court in the exercise of its discretion under O15r6(2)(b) and upon application of D,
was in a position to compel P to add S as co-D?
Held: Application allowed. At the material time of the accident, P was asleep, he was not in a
position to describe the movements of the lorry he was on nor that of the other lorry before the
accident. The pleadings clearly showed that the accident happened as a result of a collision from the
rear. It is now trite law that a driver following another vehicle should drive in such a fashion as will
enable him to deal with all traffic exigencies. This aspect of the case can only be extracted from S.
Consequently, on a reasonable and probable basis, S as the proposed co-defendant, could shed light
as to whether there was in fact a collision from the rear and for this purpose, it was prudent to make
him a co-defendant.

▪ Zaidin Abd Ghani v Raja Raman Nair @ Mohd Yusof & Ors [2001] 3 AMR 3032; [2001] MLJU
227
P and R entered into an SPA to purchase 100 shares from D. However, D terminated the SPA on
reason that one of the condition precedents was not fulfilled. P filed an OS for a declaration that the
SPA was valid and subsisting and for specific performance of it. In the meantime, the shares under
D5 was increases in stages. P obtained an exparte order against D5, restraining D5 from increasing
or reducing its paid up capital until the disposal of the suits. P now seeks an inter-partes
interlocutory injunction. D contended interlocutory relief should not be allowed on the ground of
non-joinder of parties.
Held: R should be included in a party to the present proceedings because the P and R entered into
the SPA as joint purchasers of the 100 shares in question. G who had purchased a substantial
amount from D5 should also be joined as a party to the proceedings since the proceedings will also
have an adverse effect on its interest. Replying on O15r4(2), failure of P to seek leave from the court
to add R and G as parties is fatal to his application. P interlocutory application is dismissed with
costs. Exparte-injunction discharged and P to pay damages arising there of.

Other cases:
▪ Shell Malaysia Trading Sdn Bhd v Leong Yuet Yeng [1990] 3 MLJ 254
(1) The power of the court to allow an amendment under O 15 r 6 of the
Rules of the High Court 1980 ('the Rules') is discretionary. Order 15 r 6
only applies to proceedings where the substitution of any of the parties to
the cause or matter is made before final judgment.
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▪ United Asia Bank Berhad v Personal Representative of Roshammah (decd) & Ors [1994] 3 MLJ 327
Held: The order of sale is a final order unless appealed against. Once it is made, drawn up and
perfected, the court is functus officio and has no power to set it aside. Under O15r6(2)(b) RHC
1980, intervention must be applied for before the final order is made and a person is a proper party
only if his presence before the court is imperative for the adjudication.

▪ Nite Beauty Industries Sdn Bhd v Bayer (M) Sdn Bhd [2000] 3 MLJ 314
Any person who is not a party to a proceeding may be added as a party if he can bring himself
within the scope of O15r6(2)(b) RHC 1980.
Although O15r6(2) states that such an application could be made at any stage of the proceedings, its
scope should be limited to an application made before final judgment had been entered and not after
because the proceedings would then have come to an end. Thus the would-be intervener, who will
be directly affected, either legally or financially, by any order which may be made in the action,
must intervene before that order is perfected and whilst the court is still not functus officio. All
proceedings came to an end upon the approval of the scheme of arrangement and compromise on 14
May 1999, thus the court no longer has any jurisdiction to make any order under O15r6(2).

▪ Hong Kong & Shanghai Banking Corporation v Haji Salam [2002] 3 MLJ 481, HC
Held: Although O15r6(2) RHC stated that such an application could be made 'at any stage of the
proceedings', this did not mean that such an application could be made after the final judgment or
order had been entered and perfected. O15r6 RHC only applied to proceedings where the
substitution of any of the parties to the cause or matter was made before the final judgment. It might
be permitted at any stage of the proceedings. This meant it should be applied 'before the final order
was made, not after it had been perfected and extracted'.

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Intervener [O15r 6(2)(b)(ii)]
It is an application by a stranger (3rd party) to intervene in an action between P & D.
Purpose – To prevent injustice from being done to 3rd party

O15r 6(2)(b)(ii) any person between whom and any party to the cause or matter there may exist a question or issue
arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the
opinion of the Court it would be just and convenient to determine as between him and that party as well as between
the parties to the cause or matter
The person who is not a party to a proceeding may be added as D (or intervener) against wishes of the P
either on his own application or upon the intervener’s application or by the court on its own motion.

Conditions:
i) The 3rd party must have legal interest
Mere pecuniary interest or commercial interest is not enough for intervener to intervene.
Example: proprietary rights or where intervener may be rendered liable to satisfy any judgement either
directly or indirectly.

ii) No knowledge prior to the judgment

▪ Pegang Mining v Choong Sam [1959] 2 MLJ 52

Held: An intervener must show some interest directly related to the subject matter of the action.
Per curiam: It has sometimes been said that a party may be added if his legal interests will be
affected by the judgment in the action but not if his commercial interests only would be affected

▪ Tohtonku Sdn Bhd v Superace (M) Sdn Bhd [1989] 2 MLJ 298
APP obtained an ex parte order pursuant to s16 Trade Description Act 1972 declaring that the
intervener’s TM was in infringement of APP’s rights in respect of its registered TM.
Intervener made an application to set aside, rescind or vary the ex parte order.
APP objected that (i) intervener had no locus standi or interest in the matter as commercial interest
was not sufficient, and (ii) the order of court had been perfected.
Held: Intervener's application granted.
1. A person who wants to intervene must show that he has some interest which is directly related
to the subject matter of the action. A mere commercial interest in the outcome is not enough; he
must have rights or liabilities in respect of the subject matter of the action which will be directly
affected by any order of court in the action. In this situation the court should allow him to be
heard to prevent injustice being done.
In this case, the subject matter before the court was whether or not the rights of the applicant in
respect of its TM 'MISTER' had been infringed by the intervener’s use of its mark, 'SISTER'. As
any finding of the court on this will directly affect the intervener, the intervener as a distributor
has a direct interest in the matter.
2. An ex parte order is always subject to a provisional order which is always reviewable and liable
to be set aside by the court on the application of any person who is affected by the order.

▪ Arab Malaysian Merchant Bank Bhd v Dr Jamaludin Dato Mohd Jarjis [1991] 2 CLJ 862, SC KL
AP had obtained judgement against certain debtors, and RP had undertaken to settle it by monthly
instalments in consideration of AP refraining from enforcing it. Unable to keep up with the
instalments due to excessive high interest on the judgement debt, RP applied to set aside the
judgement in default and also leave to be made a party to the said suit. RP’s application allowed by
SAR. Appeal by AP to HC by dismissed.
Held: RP, who had undertaken to pay the debt of the judgment debtors, would not only be affected
in his legal rights but also in his pocket in that he would be bound to foot a larger bill if the
judgment in default which includes excessive interest is not set aside. Both the SAR and the learned
judge were therefore right in exercising their discretion to allow RP to intervene in the suit between
AP and the judgment debtors. Appeal dismissed.

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How the application is made? Similar to misjoinder or non-joinder applications
- Inter-parte summons supported by affidavit
- At any stage of the proceeding

▪ Hong Leong Finance Bhd v Staghorn Sdn Bhd [1995] 2 MLJ 847, CA
2 years after court had granted an order for sale and certificate of sale was issued to successful
bidder, S filed an application to intervene proceedings to set aside the sale.
HC: Allowed application. HL appealed.
Issue: Whether there were any proceedings in existence when the order for intervention was made?
Held: O15r6(2) clearly states that joinder or intervening can de made ‘at any stage of proceedings’.
However, in this case after, the issuance of certificate of sale by HC Registrar was the final sate of
proceedings for an order for sale under O83. There were no more proceedings after that. Hence,
order for intervention was not made or issued ‘at any stage of proceedings’ but after all proceedings
had completed. Appeal allowed, order for intervention.

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