LAW 4220

CIVIL PROCEDURE

SECTION 5

NAURAN BINTI ABDUL MAJID & ANOR V JABATAN

PERKHIDMATAN PEMBENTUNGAN MALAYSIA & ORES
[2019] MLJU 882

NUR AMIN BIN NOR AZMI

1717351
CASE REVIEW
 [NAURAN BINTI ABDUL MAJID & ANOR V JABATAN PERKHIDMATAN
PEMBENTUNGAN MALAYSIA & ORS [2019] MLJU 882]
[HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH JC]
[HIGH COURT OF SHAH ALAM]

1.0 – Introduction

The case of Nauran binti Abdul Majid & Anor v Jabatan Perkhidm Atan Pembentungan
Malaysia & Ors [2019] MLJU 882 delved in the matter of Negligence under Tort whereby
the Plaintiff, Nauran binti Abdul Majid & Anor had brought a civil claim against the
Defendants, Jabatan Perkhidmatan Pembentungan Malaysia & Ors in the High Court of Shah
Alam. In this case, it dives deeply on the application of a striking out order to the Court
against the Plaintiffs’ Writ of Summon and Statement of Claim as prior to this civil suit the
Plaintiffs had filed a similar claim which was heard in Seremban Sessions Court. This is
governed by Order 18 Rule 19(1)(a) or (b) of the Rules of Court 2012.

2.0 – Summary of Facts

The Plaintiffs own a parcel of land known as GM 552, Lot 862, Mukim Repah, Daerah
Tampin, Negeri Sembilan Darul Khusus which is utilized as an orchard. The First Defendant,
Jabatan Perkhidmatan Pembentungan is a department under a Government Ministry was
awarded a project had contracted the Second Defendant as the main contractor for the works
and Third Defendant as a consultant to oversee the said project. In March 2015, the Second
Defendant had sought for consent to enter and rent a portion of the Plaintiffs land to carry out
the works in which the Plaintiffs agreed upon. Later in January 2016, the Plaintiffs found that
the land was damaged caused by the works of the Second Defendant and had sought out the
Second Defendant via a letter dated 2 nd February 2016 in seeking remedy within 14 days to
which the Second Defendant decline to comply. After several failed attempts of negotiating a
remedy for the damage upon the land and following the refusal from the Second Defendant to
comply with the Plaintiffs demands, the Plaintiffs then filed a civil suit against the
Defendants.

3.0 – Discussion of issues raised in the case.

The issues that had been brought to the attention of the Court were on the part of whether a
cause of action will stand against the Third Defendant under the Tort of Negligence and
whether the Court has a discretion to strike out the claims as similar suit had been filed and
heard in Seremban Session Court. The last issue to be noted is whether the Principle of Res
Judicata can be applied for the action that have been brought from another court.
4.0 – Judgement

Dealing with the first issue Hj. Mohamad Shariff JC had extensively clarified that it was to be
dismissed for reasons that the Statement of Claim revealed no cause of action against the
Third Defendant in reference to Statement of Claim, the allegations of negligence only
involved the Second Defendant and following the elements of negligence under tort it could
not possibly be establish a duty of care owed by the Third Defendant towards the Plaintiffs as
the relationship between the parties are too remote thus failing to satisfy the elements of
negligence. In deriving to the judgment, Hj. Mohamad Shariff JC had referred the issue on
towards the case of Rosita binti Baharom & Anor. v. Sabedin bin Salleh (1993) 2 CLJ 300 on
part of the pleadings by the Plaintiffs and Yeng Heng Enterprise Sdn. Bhd. v. Liow Su Fah
(1979) MLJ 24 on part of the remoteness of negligence in which the case outlines a party that
is not privy to an agreement does not bear the duty of care nor the responsibility carried by
parties who are aware of such contract. Canvassing the current case, the Third Defendant was
not made privy to the arrangements made between the Plaintiffs and Second Defendant
consequently the claim was struck out with cost.
In lieu of the civil action in Seremban Session Court, the Judicial Commissioner viewed that
the Plaintiffs were merely abusing the judicial process of the court by filing afresh a similar
civil claim that had been dealt with in the Session Court. The Judicial Commissioner
corrected the Plaintiffs action that the Plaintiffs should have appealed against the decision of
the Session Court. He had then dismissed the claim in which he relied on the case of Syed
Omar bin Syed Mohamed v. Perbadanan Nasional Bhd. (2013) 1MLJ 461, where the second
suit was filed within the limitation period after the prior suit was dismissed for breach of
peremptory order which led to the dismissal of the new suit via RSC O 18 r 19(1)(d) on the
basis that it was an abuse of the court’s process.
The Judicial Commissioner clarifies that the current suit is a mere mirror of the prior which
by principle of Res Judicata the action must not be permitted as it would be an abuse of the
process of the Court to allow a new proceeding to be started in respect of them as highlighted
in the case of Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn. Bhd. (1995) 3 CLJ
783. He had opined that the current suit is purely an action of manipulation and prejudice
towards the Defendants. In following Pembinaan dan Pemaju Mahajiwa (Selangor) Sdn. v.
ASM Development Sdn. Bhd. (2003) 4 MLJ 633, provides that on the grounds of an abuse of
process a suit may be struck out yet what amounts to an abuse should be determine from the
facts of the case itself.

Comment and Analysis

Reviewing the case through the issues, it was identified that Hj Mohamad Shariff JC in
ascertaining the Notice of Application had focused on reviewing the Order 18 Rule 19(1)(a),
(b) or (d) Rules of Court 2012. Whereby striking out pleadings and endorsement in any stage
of the proceedings must discloses that there are no reasonable cause of action or defence or it
is scandalous, frivolous or vexatious. It could also be in respect that it may prejudice,
embarrass or delay the fair trial of the action or it is otherwise an abuse of the process of the
Court. It is also to be observe the general rule of the provision above is in line with the
principle of Res Judicata where the principle disallows a cause of action to be file afresh once
it has been decided on its merits. I am with the opinion that this case has been decided with
great care with absolute correctness in terms of protecting the judicial rights of the Court and
its process. Although as stated in Pembinaan dan Pemaju Mahajiwa (Selangor) Sdn. v. ASM
Development Sdn. Bhd. (2003) 4 MLJ 633, what amounts to an abuse should be determine
from the facts of the case itself. Therefore, the Court must determine the intricate facts prior
invoking or applying the principle of Res Judicata and striking of an action via Order 18 Rule
19(1)(a), (b) or (d) Rules of Court 2012.

5.0 - Conclusion

Concluding my views upon the matter, this case may serve as an example or precedent in
protecting the sanctity of the judicial process from being abuse or manipulate the Court where
solutions of the initial issue are provided via other avenues.