4. Parties

Question 1

Plaintiff cannot indulge in vagueness - Capacity to sue must be stated clearly

• Case?
• Curable?

Answer 1

[Arkitek Bersatu v Sempurna] Imperative for P to state at the outset his legal personality to sue. Otherwise, court is entitled to rule that he has no legal personality to sue, thus no reasonable cause of action = case can be struck out

This is a fundamental defect incurable by O1A - parties = fundamental ingredient of the cause of action [Defined in Lim Kean v Choo Koon & Govt of Msia v Lim Kit Siang]

Question 2

Pre-requisite for P/D

Answer 2

P/D act in person or solicitor (O5)

• age of majority (sui juris)
• mentally sound

If not then = disabled person (O76)

• need litigation representative and can only act by a solicitor
• LR may be liable personally but is entitled to be indemnified

Question 3

Legal Personality of:

• Company
• Societies
• Trade Unions
• Partnership
• LLP
• Government
• Sole Proprietor - Enterprise
• Foreign Bodies

Answer 3

Company: s16(5) Companies Act 1965

• can sue and be sued in its own name
• or the particular legislation e.g. Legal Profession Act
• [Salomon v Salomon] company is a separate legal entity

Trade Unions: s25 Trade Unions Act 1959
- can sue or be sued in its own name

Societies: s9 Societies Act 1966

• no separate legal personality
• can sue or be sued in the name of its public officer; can be sued in the name of its office bearer

Partnerships: O77

• can sue or be sued in the name of the partnership or in the name of individual partners
• advantage: easier for service & enforcement of judgment
• *Limited Liability Partnership (LLP Act 2012)
• separate legal personality
• sue or be sued in its own name

Individual Trading as a Firm = Enterprise (O77 r 9 under Partnership header)

• may be sued in his business name but can only sue in its own name
• [Arkitek Bersatu v Sempurna] cannot sue under the name of the business

Government

• Government Proceedings Act 1956
• Govt of M’sia / State Govt of X
• [Lay Kee Tee] Fed Court: for tortious claim, identity & liability of the particular officer must be ascertained before govt can be liable - govt can only be vicariously liable

Foreign Sovereign & Mission

• Immunity
• International Organisations (Privileges and Immunities) Act 1992

Question 4

Estate w/ cause of actions

Answer 4

• s8(1) CLA 1956: causes of action shall survive against or for the benefit of the deceased’s estate - except: seduction/adultery/defamation/induce spouse to leave

Probate - executor

• executor may sue without waiting for grant to be extracted since his title to the estate is derived from the will not from probate [Chetty v Chetty]
• but cannot obtain decree - not because lack of title but because production of probate is the only way for him to prove his title to the court
• cannot be sued until grant has been extracted because although named in the will he may not want to act as executor [Pitchey]

Inestate - Administrator

• [Yan Tai Min]
• cannot sue or be sued until a grant has been extracted
• it is only until grant is extracted that the administrator can be said to be fully clothed with a representative character
• writ regarded as nullity from the beginning

Question 5

Issuing writ in the name of the deceased

Issuing writ against a deceased defendant

D no representative?

Answer 5

• writ issued in the name of a deceased plaintiff is a nullity [Dawson v Dove]
• writ issued against a deceased defendant treated to be issued against his estate [O15 r6A(3)]
• cf D died halfway through the proceedings: court to substitute another person
• if estate has no executor/administrator:
  (1) apply O15 r6A(2): “personal representatives”
  (2) issue and serve the writ to the Official Administrator (s39 Probate and Administration Act 1959)
  (3) P apply to for grant (s30 Probate and Administration Act 1959)

Question 6

Representative Actions

Answer 6

[Palmco Holdings v Sakapp]

• common interest
• common grievance (same cause of action)
• remedies beneficial to all

Question 7

Joinder of Parties

Answer 7

O15 (@ commencement of proceedings)

• common Q of law
• relief claimed based on same transactions
• Ps must be joined otherwise made D
• D must be joined if jointly and not severally liable

Question 8

Misjoinder & Nonjoinder of parties

Answer 8

O15 (halfway through the proceedings)

• wrongly joined, or person not joined
• court may add, substitute or strike out parties (own motion or parties’ application under Form 57)
• addition of parties = ought to have been joined / presence necessary (may not be liable)

Question 9

Adding P2 or D2

• if limitation period expired?
• consent?

Answer 9

• O15 r6(2)(b)
• have to amend cause of action (statement of claim) if add co-P
• can’t add if limitation period has expired [Govt v Mohamed Amin bin Hassan]
• P2 needs to consent
• D2 can be added dispute P’s objection [Hee Awa] - ultimately it’s up the court’s discretion [Tajjul Arrifin]

Question 10

Intervener

• purpose
• consent?
• show what type of interest?
• exception?

Answer 10

• to prevent injustice being done to a third party
• party can be added against the wishes of the P - as long as can satisfy O15 r6(2)(b)(ii)
• must show interest affected:
  (i) legal interest [Pegang Mining v Choong Sam]
  (ii) pecuniary interest [Arab Malaysian v Jamaluddin]
  (iii) equitable interest [Tohtonku v Superace]

Exception: tenancy intervener
- O15 r10