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1. Moriazi bin Mohamad v Ajmawati bte Attan, [2005] 4 SHLR 108

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 Moriazi bin Mohamad v Ajmawati bte Attan [2005] 4 SHLR 108
Shariah Law Reports (ShLR) · 14 pages

SHARIAH COURT OF APPEAL (SHAH ALAM)

DATUK SHEIKH GHAZALI ABD RAHMAN CJ, DATO' ABU NAIM HAJI IKHSAN, DATUK IBRAHIM LEMBUT J
APPEAL CASE MAL NO 10000–41–04 OF 2003, AND APPEAL CASE MAL NO 10000–41–07 OF 2003
4 April 2005

Case Summary
Islamic Law — Shariah Court — Jurisdiction of court — Claim for debts between spouses — Whether
should commence by notice and affidavit or summons and statement of claim — Qarinah of a document
with no witnesses — Whether respondent must bring witnesses to support her evidence — Whether proper
procedure of Shariah Civil Procedure Code Enactment Selangor 1991 was followed — Whether trial judge
had committed error in law and facts — Appeal granted — Case ordered to be re-tried

This is an appeal by Moriazi bin Mohamad as the appellant and Ajmawati bte Attan as the respondent in Appeal
case Mal No 10000–41–04 year 2003 while in Appeal case Mal No 1000–41–07 year 2003 Ajmawati bte Attan as
the appellant and Moriazi as the respondent. Technically, the two cases should be merged as one appeal case
where the first party who has forwarded the appeal is the appellant and the other party is called the respondent.
Even if the other party also made an appeal, it should be treated as a counter appeal.

Moriazi appealed against part of the decision made by the Shariah High Court (Selangor) in Mal case dated 20 May
2003. He appealed to set aside the decision that, the Court has the jurisdiction to hear and to decide the application
of the plaintiff (respondent) and also against the total amount that Moriazi needs to pay to Ajmawati. Whereas
Ajmawati appealed against the decision of Shariah High Court (Selangor) about the currency applicable when the
loan was granted in 1995. However, Ajmawati has revoked her appeal case No 10000–41–07 year 2003 on the
hearing day dated 28 February 2005 and the court has accepted the revocation.

The proceeding at the Shariah High Court was commenced by means of notice and affidavit and not by summons
and statement of claim. The learned judge also accepted the qarinah of a cheque showing the debt payment
without asking for witnesses to support the document.

Held, allowing the appeal:

The Appeal Board chaired by Datuk Sheikh Ghazali Abd Rahman unanimously agreed to allow the appeal. The
Appeal Board also were of the opinion that the trial judge had misdirected himself when making a decision without
considering proper procedure and sufficient evidence either in terms of witnesses or bayyinah. The qarinah of a
cheque as a document needs to be proved and supported by witnesses. Therefore, the Appeal Board ordered the
case to be re-tried at the Shariah High Court (Selangor) with full proceedings and the witnesses need to be called if
any. The proceedings regarding the claim of debts shall be commenced by summons and statement of claim and
not by means of notice and affidavit.

[*109]

Kes ini adalah berkaitan dengan rayuan oleh Moriazi bin Mohamad sebagai pihak perayu dan Ajmawati bte Attan
sebagai pihak responden dalam kes Mal bil 10000–41–04 tahun 2003 manakala dalam kes Mal bil. No 1000– 41–
07 tahun 2003 Ajmawati bte Attan sebagai pihak perayu dan Moriazi pula sebagai pihak responden. Dari segi
teknikal, sepatutnya kes ini disatukan di dalam satu kes rayuan di mana pihak yang memulakan tindakan merayu
disebut sebagai pihak perayu dan pihak satu lagi disebut sebagai pihak responden. Walaupun pihak satu lagi turut
membuat rayuan, ia perlu dikira sebagai rayuan balas.

Moriazi merayu ke atas sebahagian perintah yang diputuskan oleh Hakim Mahkamah Tinggi Shariah (Selangor)
yang bertarikh 20 Mei 2003 untuk mengenepikan keputusan bahawa Mahkamah tersebut mempunyai bidangkuasa
untuk mendengan tuntutan plaintif (responden) dan juga terhadap jumlah keseluruhan wang yang perlu dibayar
kepada plaintif (responden). Manakala Ajmawati pula merayu sebahagian daripada keputusan berkenaan aplikasi
kadar matawang semasa pinjaman dibuat pada tahun 1995. Namun begitu, Ajmawati telah menarik balik kes
rayuannya No 10000–41–07 pada hari sebutan iaitu 28 Februari 2005.
 Page 2 of 10
Moriazi bin Mohamad v Ajmawati bte Attan

Kes ini semasa dibicarakan di Mahkamah Tinggi Shariah (Selangor) telah memulakan prosiding dengan notis dan
affidavit dan bukannya dengan saman dan penyataan tuntutan. YAA Hakim juga telah menerima bahawa cek
pembayaram hutang yang ditunjukkan di Mahkamah sebagai qarinah tanpa memanggil saksi-saksi untuk
menyokong qarinah tersebut.

Diputuskan, membenarkan rayuan:

Panel Rayuan Shariah yang dipengerusikan oleh YAA Datuk Sheikh Ghazali Abd Rahman telah sebulat suara
bersetuju membenarkan rayuan ini. Lembaga Rayuan juga bersepakat bahawa Hakim Bicara di Mahkamah Tinggi
Shariah telah khilaf dalam membuat keputusan kerana tidak mengambil perhatian terhadap prosedur yang
sewajarnya dan juga kepada keterangan sama ada dalam bentuk saksi atau bayyinah. Qarinah dalam bentuk
dokumen seperti cek perlu dibuktikan kebenarannya dengan mendengar keterangan saksi untuk menyokongnya.
Oleh itu, Lembaga Rayuan mengarahkan agar kes ini dibicarakan semula di Mahkamah Tinggi Shariah Selangor
dengan perbicaraan penuh dan saksi-saksi jika ada hendaklah dipanggil untuk memberi keterangan. Prosiding
berkaitan dengan tuntutan hutang hendaklah dimulakan dengan saman dan penyata tuntutan dan bukannya
dengan notis dan affidavit sokongan].

Cases referred to

Sharifah Laila bte Sayed Shamdin v Abdul Latif bin Arshad No 15 [1991]

Noh Bin Atan v Shakila Bte Mohamad [1998] 6 MLJ 631

Ng Siew Wah v Chandra Michel Setiawan [1992] 2 SLR 830

[*110]
Legislation referred to

Administration of the Religion of Islam (State of Selangor) Enactment 1989 s 42(b)(ii)

Shariah Court Civil Procedure Enactment Selangor 2003 s 245(2)

Islamic Family Law (Federal Territories) Act 1984 s 58

Shariah Civil Procedure Code Enactment Selangor 1991

Shariah Court Evidence Enactment Selangor 1996

Juristic Opinions referred to

Dr Abdul Karim Zaidan in Nizam al-Qada' fi al-Shariah al-Islamiyyah, at p 125

Al-Mawardi, Al-Ahkam al-Sultaniyyah Was al-Wilayah al-Diniyyah, Dar al-Kutub al-Alamiyyah, Beirut, Edition 1,
1985, at p 93

Dr Wahbah al-Zuhayli, Fiqh al-Islami, Chapter 6, at p 515

Al-Nawawi, Raudhah al-Talibin, Beirut, Dar al-Fikr, 1995, Chapter 10, at p 122

Meaning of Words & Phrases

Aqad –Contract

Baiyyinah –Evidence

Fasakh –Dissolution

Faraq –Judicial separation

Hibah –Special Gift

 Page 3 of 10
Moriazi bin Mohamad v Ajmawati bte Attan

Hukum Syarak –Shariah Rule

Iddah –Waiting period

Ijthihad –Juristic opinion

Mutaah –Compensation

Qarinah –Circumstantial evidence

Lawyers

Haji Zainul Rijal bin Abu Bakar (Messrs Zainul Rijal Talha & Amir) for the appellant.
Haji Mohd Noor bin Don (Messrs Mohd Noor Don & Associates) for the respondent.

Datuk Syeikh Ghazali Abd Rahman:

[1]This is an appeal by Moriazi bin Mohamad as the appellant and Ajmawati bte Attas as the respondent in Mal
case No 10000–41–04 year 2003 while in Mal case No 1000–41–07 year 2003, Ajmawati bte Attan as the appellant
and Moriazi as the respondent. Technically, these two cases should be merged as one appeal case where the first
party who has filed the appeal case is the appellant and the other party is called the respondent. Even if the other
party has also made an appeal, it should be treated as a counter appeal.

[2]Moriazi appealed against the decision of the learned judge of Shariah High Court (Selangor) in Mal case who
had on 20 May 2003 allowed the application of the plaintiff (respondent). The appellant appealed to set aside the
decision as follows:
(i) Shariah High Court (Selangor) has the jurisdiction to hear and to decide the application of plaintiff ('respondent')

(ii) The defendant ('appellant') to pay the balance of loan granted by plaintiff as the business capital amounting to
DS$46,515.75 [*111]
(iii) The defendant to pay the cost of electric bills totalling DS$537.90, telephone bill totalling DS$179.68 and the
salary for the maid totalling DS$440 to the plaintiff.

[3]Ajmawati appealed against the decision of the learned judge of Shariah High Court (Selangor) about the
currency applicable where the Judge did not include the words "or the same value (Ringgit Malaysia) when the loan
was granted in 1995". She did not appeal for the rest of the decision. However, Ajmawati has revoked her appeal
case No 10000–41–07 year 2003 on the hearing day dated 28 February 2005 and the court has accepted the
revocation.

[4]In the case before the Shariah High Court (Selangor), the plaintiff, a ingaporean married the defendant, a
Malaysian in London on 17 September 1994 and remarried in Singapore on 26 Jun 1995. The marriage was
registered in Singapore. They have divorced outside court and Shariah Lower Court Petaling Jaya approved the
divorce. The divorce was registered at Pejabat Agama Islam (Petaling Jaya) No 99/99.

[5]In the application to the Shariah High Court Selangor, the plaintiff claimed as follows:

(a) Balance of the loan granted DS 46,515.75

by the plaintiff as business
capital

(b) Electric bills DS 537.90

(c) Telephone bills DS 179.68

(d) Insurance premium of AIA DS 11,851.95

and NTUC
 Page 4 of 10
Moriazi bin Mohamad v Ajmawati bte Attan

(e) Income tax bill belonging to DS 7,540.42

the plaintiff

(f) The payment to repair the DS 288.00

ring belonging to the
defendant

(g) Renewal fee for OUB Visa DS 312.00

and American Express cards

(h) Salary for the maid DS 440.00

Grand Total DS 67,821,70

(i) The costs of this application are borne by the defendant.

(j) Any other relief deemed fit by the court.

[6]The decision dated 20 May 2003, the Honourable Shariah High Court (Selangor) approved and endorsed as
follows:
(a) The defendant to pay the balance of the loan granted by the plaintiff as business capital totalling DS 46,515.75

(b) The defendant to pay the payment to repair the ring belonging to the defendant to the plaintiff as agreed, totalling
DS 288

(c) The payment for electric bills totalling DS 537.90, telephone bills totalling DS 179.68 and salary for the maid
totalling DS 440 have to be paid to the plaintiff (Subject to if the payment is not included in the maintenance
application in Mal case No 1342–24–2/1999 Shariah Lower Court, Petaling Jaya) If included, this provision is
void. [*112]
(d) The claim for insurance premium of AIA and NTUC totalling DS 11, 851.95, income tax bill belonging to the
plaintiff totalling DS 7,540.42, renewal fee for OUB Visa and American Express cards totalling DS 312 were
rejected.
(e) The entire costs of the application are borne by both parties.

(f) Defendant to execute all judgements in Singapore Dollars within six (6) months from the date of Judgement.

[7]The Defendant appeals from the decision dated 20 May 2003 to Shariah Court of Appeal (Selangor).

Decision of Shariah High Court:

[8]Upon scrutinising the evidence and proof produced by the plaintiff as well as the defendant and after giving full
consideration to the written arguments of the lawyers from both sides, the court is satisfied and grateful to the whole
argument as a great help to the court to reach a correct and just decision.

[9]The Honourable Judge Shariah High Court (Selangor) in allowing the plaintiff's application decided as follows:
(a) The defendant to pay the balance of the loan granted by the plaintiff as business capital totalling DS
46,515.75
(b) The defendant to pay the payment to repair the ring belonging to the defendant to the plaintiff as agreed
totalling DS 288.00
(c) The payment for electric bills totalling DS 537.90, telephone bills totalling DS 179.68 and salary for the
maid totalling DS 440 have to be paid to the plaintiff (Subject to if the payment is not included in the
maintenance application in Mal case No 1342–24–2/1999 Shariah Lower Court, Petaling Jaya) If included,
this provision is void.
(d) The claim for insurance premium of AIA and NTUC totalling DS 11, 851.95, income tax bill belonging to the
plaintiff totalling DS 7,540.42, renewal fee for OUB Visa and American Express cards totalling DS 312 are
rejected.
(e) The entire legal fees have to be borne by both parties.
 Page 5 of 10
Moriazi bin Mohamad v Ajmawati bte Attan

(f) The defendant to execute all judgements in Singapore Dollars within six (6) months from the date of
Judgement.

[10]Concerning the first issue about the jurisdiction of the Shariah High Court to hear and decide this case, I agree
with the argument of the defendant's lawyer that there is no written provision or specific section that expressly
stipulated regarding the transaction of loan or debts, as provided about mutaah, jointly acquired property (Harta
Sepencarian), maintenance etc.

[11]However, s 42(b) of the Administration of the Religion of Islam (State of Selangor) Enactment 1989 has given a
general answer when it provides: [*113]

"…The Shariah High Court in its civil jurisdiction, hears and determines all actions and proceedings if all the parties to the
actions or proceedings relate to –

Section 42(b) (ii): Any disposition of or claim to property arising out of any of the matters set out in subparagraph (i) ie
betrothal, marriage, divorce, annulment of marriage (fasakh) or judicial separation (faraq).

[12]Pursuant to the related section, it is clear that the Shariah Court has the jurisdiction to hear and decide the
plaintiff's application since it deals with disposition of or claim to property arising out of any of the matters of
marriage and divorce between the plaintiff and the defendant as stated in the facts of the case. The parties have
divorced outside court and the Shariah Lower Court (Petaling Jaya) approved the divorce which was registered at
Pejabat Agama Islam Petaling Jaya No 99/99.

[13]I refer to the case of Sharifah Laila bte Sayed Shamdin v Abd Latif bin Arshad. "… Mdm Sharifah lives in
Singapore and the divorce was registered in Selangor. Dato' Abu Naim bin Hj Ikhsan, the (then) Chief Justice of
Selangor and also the learned judge of Shariah High Court had dismissed her application for jointly acquired
property (harta sepencarian). She appealed to the Shariah Appeal Court (Selangor). Tan Seri Dato' Azmi bin Dato'
Kamaruddin when delivering the judgment said that the Shariah High Court has the jurisdiction to hear and
determine the case since the case ('kes induk') was registered in Selangor. Therefore the appeal of the appellant is
granted and the decision of the Shariah High Court is dismissed."

[14]The second issue about the amount claimed by the plaintiff, based on the evidence of both parties without
producing any witness, it is proven to me that there is no authentic evidence either in terms of letter of agreement or
contract ( aqad) to say that the amount of DS 62, 8000 is considered as a loan or a special gift given by the plaintiff.

[15]In exercising my discretion, I agree with the argument of the plaintiff's lawyer that, even if the plaintiff cannot
produce any witness to support her application, but by producing the cheque of DS 20,000 as a document showing
the defendant had already paid part of the debt. Therefore, the Court can consider and accept the document as one
of the qarinah. The payment of such big amount is a qarinah showing that the total amount of DS 62,800 is
regarded as a debt by both parties. If it is a gift, then it is impossible for the defendant to pay DS 20,000 to the
plaintiff.

[16]With regards to the payment for electric bills, telephone bills, insurance, credit cards, income tax and the salary
for the maid, I am of the opinion that the electric and telephone bills are basic necessities and shall be paid by the
defendant. Regarding a maid, it depends on the capability of a husband. Based on the salary of the defendant at
that particular time, I agree that having a maid is fit to be considered.

[17]However, the claim for insurance premium, income tax belongs to the plaintiff and the renewal fee for credit
cards are not under the responsibility of a husband. Therefore, the claims are not fit to be considered.

[*114]

[18]Concerning the third issue that is the currency applicable, I agree with the arguments of the defendant's lawyer
that there will be injustice if the court relied on the current value since the value of money always fluctuates
according to the time. Therefore, I am of a view that the currency is in Singapore Dollars or in Malaysian Ringgit
according to the value at the time the loan was granted.

This Honourable Court decided that the defendant should pay all of the judgement sum in Singapore Dollars within
six (6) months from the date of the Judgement.
 Page 6 of 10
Moriazi bin Mohamad v Ajmawati bte Attan

The Defendant's Appeal to the Shariah Appeal CourtGrounds For Appeal to the Shariah Appeal Court:

[19]The High Court judge has erred in law and facts to dismiss the appellant's preliminary objection.

[20]The High Court judge has erred in law and facts in determining the case without considering that the divorce
referred is the marriage on 26 Jun 1995 (registered in Singapore) and not the marriage on 17 September 1994
(registered in London).

[21]The High Court Judge has erred in law and facts in interpreting s 42(b)(ii) of the Administration of the Religion
of Islam (State of Selangor) Enactment 1989 that the Shariah Court has the jurisdiction to hear and to decide the
case.

[22]The High Court Judge has erred in law and facts when he decided to refer to the case of Sharifah Laila bte
Sayed Shamdin v Abdul Latif bin Arshad No 15 [1991] in deciding the case.

[23]The High Court Judge has erred in law and facts when he failed to differentiate between the Appeal Court case
of Sharifah Laila bte Sayed Shamdin v Abdul Latif bin Arshad No 15 [1991] with this appeal case.

[24]The High Court Judge has erred in law and facts when he did not consider and only relied on the evidence of
the plaintiff without producing any witness.

[25]The High Court Judge has erred in law and facts when he failed to take into consideration the fact that part of or
entire transactions claimed by the plaintiff executed in other sovereign country ie Singapore.

[26]The High Court Judge has erred in law and facts when he failed to understand that the course of action
happened in other sovereign country.

[27]The High Court Judge has erred in law and facts when he decided that the electric bills, telephone bills and
salary for the maid totalling DS 1,157.58 to the respondent (plaintiff) as basic necessities and shall be paid by the
defendant. Whereas, the claim for the maintenance including mutaah, iddah and maintenance in arrears have been
settled via sulh in Mal case No. 1342–24–2 year 1999 at Shariah Lower Court (Shah Alam).

[*115]
Therefore, the appellant appeals

The Honourable Court of Appeal to set aside part of the decision of the learned judge of Shariah High Court Shah Alam
where he decided that:
(i) The Shariah High Court (Shah Alam) has jurisdiction to hear and to decide the application of the plaintiff
(respondent);

(ii) The defendant to pay the balance of the said loan as business capital amounting to DS$46,515.75;

(iii) The defendant to pay the costs of the electric bills totalling DS$537.90, telephone bills amounting to DS$179.68
and the salary for the maid totalling DS$440 to the plaintiff.

Decision of Shariah Appeal Court (Selangor)

[28]The hearing of appeals at the Shariah Appeal Court is to ascertain whether the Shariah High Court have
correctly decided the case or whether the decision was wrongly decided or not.

[29]In the case tried by the learned judge of Shariah High Court (Selangor), the defendant had raised preliminary
objections that the plaintiff failed to follow the provisions in the Shariah Civil Procedure Code Enactment 1991
Selangor, the Court has no jurisdiction to hear and decide matters pertaining to debts, the cause of action arose in
Singapore and the action was deemed premature. The preliminary objection was dismissed by the learned trial
judge and he made a decision to proceed with the trial until the decision was issued and this appeal was filed.

[30]In order to determine whether the Shariah High Court has jurisdiction or not to decide cases concerning spouse
debts, we fully agree with the learned trial judge that s 42(2)(b)(ii) of the abovementioned Enactment has granted
the Shariah High Court the jurisdiction to hear and decide the case even if there is no specific provision mentioning
thereto. Section 42(b) (ii) provides: "Any disposition of or claim to property arising out of any of the matters set out
in subparagraph (i) ie betrothal, marriage, divorce….."
 Page 7 of 10
Moriazi bin Mohamad v Ajmawati bte Attan

[31]Upon reading this section, it is clear that the claim made by the respondent against the appellant in the case
was appertained to the loan arising out of their marriage. By having that relationship, there exist few transactions
between the respondent and appellant such as borrowing money, involving in business as well as the loan given. In
the absence of any provision or specific section regarding that matter in any written law, the Shariah Court shall
refer to the provision of hukum syarak. Shariah Court Civil Procedure Enactment Selangor 2003 in section 245(2)
provides: "In the event of a lacuna or where any matter is not expressly provided for in this Act, the Court shall
apply Hukum Syarak."

[32]The question whether the Shariah High Court has the jurisdiction to hear and decide the application of the
plaintiff due to the fact that she is a non-resident in the State of Selangor but rather a Singaporean, we are of the
opinion that if the appellant acknowledge the jurisdiction of the Shariah [*116]
Court in Selangor when he registered the divorce, why the appellant tried not to acknowledge the claims arising
from the said divorce. Whereas s 42(2)(b)(ii) has clearly stipulated the jurisdiction to decide the case.

[33]We refer to the case Noh Bin Atan v Shakila bte Mohamad [1998] 6 MLJ 631, where the appeal was dismissed
and the court upheld the decision held by Shariah High Court (Wilayah Persekutuan Kuala Lumpur) that the court
has no jurisdiction to decide the division of joint property (harta sepencarian) in s 58 of the Islamic Family Law
(Federal Territories) Act 1984 when the divorce happened in Selangor, not in Kuala Lumpur.

[34]The Shariah Appeal Court (Wilayah Persekutuan) also referred to the s 106 of the Singapore Womens'
Declaration which stipulates that the power to make an order under the aforementioned section comes alongside
with the proceeding of any matters pertaining marriage. The court shall have power only on matters where the
Declaration expressly granted it. If there is no proceeding on any matter pertaining marriage in Singapore, then the
Court in Singapore has no jurisdiction to decide or give any order under section 106 of the Womens' Declaration.

[35]Another case referred is Ng Siew Wah v Chandra Michel Setiawan [1992] 2 SLR 830. In this case, both parties
were married in Jakarta. The defendant had filed and commenced the proceedings for dissolution of marriage in
Jakarta in March 1986. The decree of divorce was granted by the court in Indonesia in February 1987 whereas the
plaintiff (wife) at that time was not in Jakarta. After the divorce, the defendant moved to Singapore and become a
permanent resident of that country. After a certain period passed, the plaintiff had filed a case for maintenance for
herself and the children from that marriage at Singapore High Court but the defendant had applied for the case to
be struck off. The High Court decided in favour of the defendant and declared that according to section 106 of the
abovementioned Declaration, the power of the court comes together (sampingan) with the proceeding of any
matters pertaining to marriage. Since the decree of divorce was not granted by the court in Singapore, therefore the
plaintiff's, application for the maintenance cannot be considered.

[36]The Shariah Appeal Court (Wilayah Persekutuan) also refers to the authentic juristic opinion of Dr Abdul Karim
Zaidan in Nizam al-Qada' fi al-Shariah al-Islamiyyah, at p 125 which explains the way how a case should be
forwarded:

"Every case shall be filed and forwarded to the right court that has jurisdiction to hear and decide the case. In principle, the
court shall be the one in the territory where the other party resides. Therefore, based on this, the plaintiff should bring his
case to the judge in the place where the defendant resides."

[37]In exercising our discretion, we are in the opinion that the court of competent jurisdiction to hear and decide the
application of the appellant is the Shariah Court Selangor based on the referred case of Noh Atan v Shakila
Mohamad. In the case that comes before us, they had divorced outside court and the Shariah Lower Court
(Petaling Jaya) had confirmed the divorce. Therefore, the application for any matters arising from the divorce shall
be filed and tried at the Shariah Court (Selangor).

[*117]

[38]We also refer to the book of al-Ahkam al-Sultaniyyah by al-Mawardi which stated, "It is allowed in Islam for a
judge to be appointed to hear and decide a case in a particular territory. For example if a judge is appointed to hear
and decide cases in a certain territory, then the decision made is considered valid and enforceable in that particular
territory only. Therefore, he has the power and jurisdiction to hear and decide cases pertaining to any matters
forwarded by the people living in the territory or people who come and reside in that territory. Those who come and
become residents of that place are regarded as people who are the original residents of that place. But if the judge
 Page 8 of 10
Moriazi bin Mohamad v Ajmawati bte Attan

is given the power to decide cases for that particular place only, then he at that time, has no power and jurisdiction
upon any non resident who is living in the place."

(Refer to Al-Mawardi, Al-Ahkam al-Sultaniyyah Wa al-Wilayah al-Diniyyah, Dar al-Kutub al-Alamiyyah, Beirut, Edition 1,
1985, p 93)

[39]If we make an analogy between the opinion of al-Mawardi and the provision of s 4 of Islamic Family Law
Enactment (Selangor) which provides, "Save as otherwise expressly provided, this Enactment shall apply to all
Muslims living in the State of Selangor and to all Muslims resident in the State of Selangor who are living outside
the State". It is crystal clear that both provisions do not contradict each other where the word "all Muslims living in
the state of Selangor includes all people who come and reside in the state of Selangor whether he/she stays for a
long or short period. The respondent/plaintiff in this case is not excluded from the spirit of s 4 as well as what was
explained by al-Mawardi. The provision is actually in conformity with the opinion uttered by Dr Abd Karim Zaidan
that the claim or application shall be made to the judge in the territory where the defendant lives. Therefore, in this
case, it refers to Shariah Court (Selangor) since the other party or the appellent/defendant is living in the State of
Selangor.

[40]With regard to the appropriate method used to commence the proceeding in this case, shall it be by way of
application or statement of claim? The Shariah Civil Procedure Code Enactment 1991 Selangor provides the
mode in which a proceeding should be commenced. Section 23 of the said Enactment provides:

"Every action shall be commenced by summons in the form provided. The statement of claim shall be endorsed at the back
of the summons and comply with the requirements of s 52."

Sections 69 to 74 provide that one can make an application by way of a notice and affidavit as in the form provided.

[41]The preliminary objection raised by the appellant when the case was heard before the judge of the Shariah
High Court was that the application filed by the Plaintiff at that time was not in conformity with the procedure
provided in the abovementioned Enactment. It was not clear whether it shall be commenced by summons and
statement of claim or by means of a notice and supported by affidavit. The abovementioned Enactment does not
expressly provide on this matter. Practice Direction No 4 of 2000 also neither classifies spouse debts in the
category of claim nor application. The appellant [*118]
submitted that it is a claim that shall be commenced by summons which will automatically allow the evidence from
the plaintiff to be heard, cross examined and re examined, as well as that of the witnesses if need be.

[42]After perusing the appeal record, we found that this case was filed by way of notice and supported affidavit, not
by summons together with a statement of claim. We completely agree with the arguments put forth by the appellant
as has been deliberated earlier.

[43]On the contrary, should we accept the arguments of the respondent that the subject matter in this case is not
specified by law either to commence by summons or notice of application and the non-compliance with any section
or the enforceable Practice Direction shall not nullify the proceedings unless the court decides otherwise. But the
court shall on its own motion or upon application by any party to set aside the whole proceedings or part of the
proceedings as non compliance to the provision or to order for amendments on certain conditions that the court
deems fit. We doubt whether it is compliance with provisions of hukum syarak. Is it right according to hukum syarak
to hear and decide a claim of such big amounts pertaining to debts only by examining the affidavit that was only
affirmed?

[44]The basis of any allegation comes from the well-known hadith that is,

"The burden of proof is on him who alleges, the oath on him who denies".

And also from the hadith about the dispute between Hadramy and Kindy. The Prophet said,

"Do you have any proof? He answered, No.

Then the Prophet said, "Then on you to take oath" which is oath of the person who denies.
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Moriazi bin Mohamad v Ajmawati bte Attan

(Refer to Dr Wahbah al-Zuhayli, Fiqh al-Islami, Chapter 6, p 515)

[45]It is stated in Raudah al-Talibin that, when the plaintiff said, "I have evidence" but he failed to produce it, the
judge shall ask the defendant to take a denial oath. The judge shall allow the oath transferred to the defendant. But
according to al-Qaffal, the judge shall not allow the denial oath but rather he should ask the plaintiff to produce that
particular evidence as claimed earlier.

(Refer to al-Nawawi, Raudhah al-Talibin, Beirut, Dar al-Fikr, 1995, Chapter 10, page 122)

[46]We may infer from the statements that the plaintiff has the evidence/ witness and witnesses. So they should be
called to provide such evidence. Nowadays, witnesses can be ordered to appear before the court by issuing a
subpoena. And if the witness refuses or fails to attend without sufficient reason given, after a subpoena has been
duly served, such witnesses can be ordered to attend by way of warrant for arrest. But when it is proven that the
evidence produced by the witnesses cannot be considered, then the right will be given to the plaintiff to seek oath to
be taken by the defendant.

[*119]

[47]In this case before us, based on arguments of the appellant, the respondent/plaintiff did not produce any
witnesses in the case because they live in Singapore. Therefore it was sufficient for her to produce affidavits and
evidence only. We are of the opinion that the provisions of ss 94–99 of the abovementioned Enactment shall apply
and a subpoena can be issued in order to compel the witnesses to attend and produce evidence before the court.
And if the witnesses refuses or fails to attend, the provision of s 102 shall apply to arrest the witnesses after the
subpoena is duly served. In this case, the provisions have not been effectively utilised. In addition the plaintiff was
satisfied with her affidavits only. Based on the arguments raised, the respondent did not produce any witness
because all of the witnesses live in Singapore and they are not subject to the law in the Shariah Court (Selangor).
Notwithstanding anything, we think that the respondent should use her best endeavours to bring witness in support
of her claim. If she fails, the provision of hukum syarak as mentioned earlier in the case of Kindy and Hadramy shall
be applied by the learned judge. However, the learned judge has not considered this and overlooked the provision
before making the decision.

[48]We regretfully noted that the trial of this case was in the state of pandemonium that intersperses between the
case of claim and application. The case was filed by way of notice and affidavit but the trial was conducted as if the
case was commenced by summons and statement of claim when the examination-in-chief, cross-examination and
re-examination was conducted throughout the trial.

[49]Upon scrutiny and perusing the appeal record, we found that the basis of the allegation as discussed earlier has
not been followed at all. Even if we found in the appeal record, the evidence from the plaintiff was taken, no
evidence was taken from the witnesses to corroborate her evidence. We merely found the procedure of
examination-in-chief, cross-examination and re-examination of the plaintiff and the defendant. And it is abundantly
clear that the defendant has categorically denied the entire allegations made by the plaintiff.

[50]We also refer to the Shariah Court Evidence Enactment Selangor 1996, ss 72–75 which provide;

72. The burden to produce evidence in a civil case lies on the person who alleges or asserts a fact (al-Mudda'ii) and the
person who takes the oath to deny or disputes a fact (al-Mudda'a 'alaih)

73. (1)Whoever desires any Court to give judgment as to any legal right or liability which is dependent on the existence of
facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said the burden of proof lies on that person.

74. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either
side.

[*120]

75. The burden of proof as to any particular fact lies on that person who wished the Court to believe in its existence.
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We are of the opinion that the provisions of the said Enactment have not been properly followed in this case. In
addition, the learned judge also did not follow s 87 of the said Enactment as required.

Section 87 provides that;

87(1)In a civil case, evidence shall be given by the plaintiff and the defendant, and if the defendant denies the claim
made against him he shall be required to take an oath according to Islamic Law.

(2)(a)Where the defendant takes the oath under subsection (1), the claim made by the plaintiff shall be dismissed.

(b)If the defendant refuses to take such oath, the Court may ask the plaintiff to take oath upon which his claim shall be
accepted.

[51]The above procedure has been clearly explained earlier. When can the defendant be asked to take oath? The
answer is when the paintiff failed to produce evidence and she requested the defendant to take oath. The judge
allows it and the defendant denies the claim of the plaintiff.

[52]The learned trial judge has misdirected himself in considering the evidence given by the respondent together
with the qarinah without any evidence from the witnesses. From the appeal record, we found that in page 64–65,
the learned judge in his grounds of judgment stated that, there was no authentic evidence either in terms of letter of
agreement or contract (aqad) or witnesses to support the evidence showing that the amount of DS 62, 8000 was
considered as debts or a special gift or hibah. However the learned judge accepted the cheque of DS 20,000
produced by the plaintiff as the qarinah showing the defendant had paid part of the debts. If we refer to the
provision in s 22 of the abovementioned Enactment, it provides;

"Entries in books of accounts regularly kept in the course of business are qarinah whenever they refer to a matter into
which the Court has to inquire, but the entries shall not alone be sufficient evidence to charge any person with liability." This
provision clearly stipulates that the qarinah of an account book or a document needs to be proved by other evidence such
as witnesses to support the document. Whereas in this case, there was no witnesses or any other evidence produced to
support the qarinah of a document.

[53]We are of the opinion that the trial judge has misdirected himself when making a decision without considering
the proper and sufficient evidence either in terms of witnesses or bayyinah. This error originated from the moment
this case was filed by way of notice and affidavit and not by summons and statement of claim. We fervently believe
that when the case was commenced by way of notice and affidavit, it is proper and sufficient for the learned judge
to read and make a decision. The learned judge need not have to conduct a full hearing or the proper trial (in the
same way as a case which was commenced by way of summons and statement of claim). (Regarding this matter,
reference can be made to the book Usul Murafaat by Anwar al-Amrusi).

[*121]
Order

[54]Therefore, after we examine and evaluate the appeal record, arguments of both sides of the appellant and
respondant and based on the grounds that we produced, we unanimously allow this appeal and order the case to
be re-tried at the Shariah High Court (Selangor) with full proceedings and witnesses if any need to be called.

[Editor's note: All reference to "Shariah" in the text should be read as "Shariah".]

Reported by Nurhidayah Muhd Hashim, MA(Shariah)(Malaya), LLB(Hons), LLB(Shariah)(Hons)(IIUM), DLSA

(UiTM) & Lecturer (UiTM)

End of Document