Chapter 16 - Pleadings

Question 1

PLEADINGS

Overview

Answer 1

1) General principles on pleadings
2) Requirements in pleadings
3) Particulars of pleadings
4) Principles in pleadings
5) Specific pleas in pleadings
6) Objection on unpleaded points
7) Further & better particulars

Question 2

GENERAL PRINCIPLES OF PLEADINGS

Overview

Answer 2

1) The law of pleadings
2) Function of pleadings
3) Importance of pleadings
4) General principles of pleadings

Question 3

GENERAL PRINCIPLES OF PLEADINGS

The law of pleadings

Answer 3

O.18

Question 4

GENERAL PRINCIPLES OF PLEADINGS

Function of pleadings

Answer 4

Esso petroleum Co Ltd v Southport Corporation:

• To define the issues;
• To indicate to the party who asks for them how much of the range of his possible evidence will be relevant and how much irrelevant to those issues.
• To shorten the hearing and reduce costs.

Question 5

GENERAL PRINCIPLES OF PLEADINGS

Importance of pleadings

Answer 5

Lee Ah Chor v Southern Bank:

• Supreme Court emphasised on the importance of pleadings;
• SC ruled that where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal

Question 6

GENERAL PRINCIPLES OF PLEADINGS

General principles of pleadings

FC, 2015

Answer 6

Samuel Naik Siang Ting v Public Bank Bhd (FC, 2015):

Ref. State Government of Perak v Muniandy:

• In civil litigation, parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded.

Ref. Blay v Pollard & Morris:

• ’Cases must be decided on the issues on the record’; and
• ‘if it is desired to raise other issues there must be pleaded on the record by amendment’.

Ref. Lee Ah Chor v Southern Bank Bhd:

• Where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal.

Ref. The Chartered Bank v Yong Chan:

• As the trial judge had decided on an issue which was not raised in the pleadings, the judgment must be set aside and new trial ordered.

Ref. KEP Mohamed Ali v KEP Mohamed Ismail:

• Object of pleading is to prevent surprise;
• To condemn a party on a ground of which no material facts have been pleaded may be a great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.

On the present case:

• Appellant raised a ‘last-minute issue’;
• court held that the issue raised, if accepted, would completely change the character of the appellant’s defence to the respondent’s claim;
• It would be highly prejudicial to the respondent’s case.

Question 7

REQUIREMENTS IN PLEADINGS

Overview

Answer 7

1) Formal requirements
2) Signature requirements
3) Process of pleadings

Question 8

REQUIREMENTS IN PLEADINGS

Formal requirements

Answer 8

O.18, r.6

Question 9

REQUIREMENTS IN PLEADINGS

Signature requirements

Answer 9

1) The law - O.18, r.6(5):
- shall be signed by party’s solicitor or by a party.
2) General - Maclaine Stokvis (Malaya) Ltd v The Saloma Company:
- Pleadings must be signed by the party’s solicitor or by the party if he sues or defends in person.
3) Amended statement of claim - Nayar v Gian Singh & Co Ltd:

• The court held that it is not a fresh proceeding & the same proceeding with amendments.
• When an amendment is made, what in fact happened is that the same original pleadings continue to exist together with any such subsequent amendments.
• Therefore, new signature is not required for amended statement of claim as it is not a fresh pleading.

Question 10

REQUIREMENTS IN PLEADINGS

Process of pleadings

Answer 10

1) SOC;
2) Defence; (and counterclaim, if any)
3) Reply.

Question 11

PARTICULARS IN PLEADINGS

Overview

Answer 11

1) Facts not evidence
2) Specifically pleaded matters
3) Legal principles

Question 12

PARTICULARS IN PLEADINGS

Facts not evidence

Answer 12

1) The law:
- O.18, r.7: facts, not evidence.

Facts must be material:

1) Principles - In re Estate of Lee Siew Kow:

• The pleadings must contain material fact;
• The material facts will set out what the parties seek to prove and whether it has been set out with sufficient precision.
• The parties by their pleadings define the issues of fact which the Court will have to decide.

2) Meaning of material facts:

i) Bruce v Odhams Press:
- necessary for the purpose of formulating a complete cause of action.

ii) In re Estate of Lee Siew Kow:

• GUARD: those facts which will put the Ds on their guard;
• MEET: facts that should tell Ds what they have to meet.

3) Omission of material facts:
i) Lee Ah Chor v Southern Bank Bhd:
- Where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal.
ii) Bruce v Odhams Press:
- if any one ‘material’ statement is omitted, the statement of claim is bad.

Question 13

PARTICULARS IN PLEADINGS

Specifically pleaded matters

Answer 13

O.18, r.8:

• certain matters need to be specifically pleaded

See: Specifically pleaded matters below.

Question 14

PARTICULARS IN PLEADINGS

Legal principles

Answer 14

1) The law - O.18, r.11:
- legal principles need not be pleaded
2) The rule - Zung Zang Wood Products Sdn Bhd v Kwan Chee Hang Sdn Bhd:

• Conclusions of law, or of mixed law and fact, are no longer to be pleaded.
• It is for the court to declare the law arising from the facts proved before it’.

3) Effect of pleading legal principles - Tay Choo Foo v Tengku Mohd Saad:

• If he pleads legal principles, he is not bound by, or limited to, what he has stated.
• He can present, in argument, any legal consequence of which the facts permits.

Example & application:

1) Contents of statute - Middlesex County Council v Nathan:

• It is unnecessary to state the principles of the common law or set forth the contents of statute.
• But if a statute is relied on as the foundation of a claim or defence, the facts necessary to bring the case within the statute must be pleaded.
• Reference should usually be made to the section relied on.

2) Estoppel - Boustead Trading Sdn Bhd v Arab-Malaysian Merchant Bank Bhd:
- the relevant facts which gives rise to an estoppel is sufficient.

Question 15

PRINCIPLES IN PLEADINGS

Overview

Answer 15

1) Parties are bound by their pleadings
2) Omissions of material facts
3) Raising an unpleaded issue
4) Decision based on unpleaded issues

Question 16

PRINCIPLES IN PLEADINGS

Parties are bound by their pleadings

Answer 16

Janagi v Ong Boon Kiat:

• MATTERS: The matters on which the parties are at issue are determinable by an examination of the pleadings.
• TRIAL: The trial of a suit should be confined to the pleadings;
• JUDGMENT: A judgment should be based upon the issues which arise in the suit.

Question 17

PRINCIPLES IN PLEADINGS

Omission of material facts

Answer 17

1) Effect on parties - Lee Ah Chor v Southern Bank Bhd:
- it could not be allowed to be argued and to succeed on appeal.
2) On the court - Yew Wan Leong v Lai Kok Chye:
- when a party does not raise the material point, it is not proper for the court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleadings.

Question 18

PRINCIPLES IN PLEADINGS

Raising an unpleaded issue

Answer 18

Blay v Pollard & Morris:

• Cases must be decided on the issues on record; and
• if it is desired to raise other issues they must be placed on the record by amendment.

Question 19

PRINCIPLES IN PLEADINGS

Decision based on unpleaded issues

Answer 19

1) The Chartered Bank v Yong Chan:

• a decision based on unpleaded issues is null & void.
• the judgment must be set aside & a new trial may be ordered.

2) Janagi v Ong Boon Kiat:

• Judgment is unsustainable if it goes outside the issues;
• such a judgment cannot be said to be in accordance with the law and the rules of procedure.

Question 20

SPECIFIC PLEAS IN PLEADINGS

Overview

Answer 20

1) Limitation
2) Frustration
3) Illegality
4) Admissions
5) Nuisance and/or negligence
6) Fraud & forgery
7) Contributory negligence
8) PAPA 1948

Question 21

SPECIFIC PLEAS IN PLEADINGS

Limitation

Answer 21

1) General rule - O.18, r.8 & S.4 LA

i) O.18, r.8:
- D who wishes to rely on limitation must specifically plead in his Defence.

ii) S.4 LA:
- Limitation not to operate as a bar unless specially pleaded.

2) Applicability to O.S - Tham Kok Onn v Perwira Habib Bank Sdn Bhd (CA):
- S.4 LA did not apply to an originating summons.
3) Exception - Tasja Sdn Bhd v Golden Approach Sdn Bhd:

• Limitation based on PAPA or CLA is absolute;
• Application to strike-out on the ground of limitation should be granted without having to plead such a defence.
• However, in a situation where limitation is not absolute, like in a case under the Limitation Act, application for striking out should not be allowed until and unless limitation is pleaded as required under S.4 of the Limitation Ac

Question 22

SPECIFIC PLEAS IN PLEADINGS

Effect of unpleaded limitation

Answer 22

1) On P’s cause of action -

Kennet v Brown:

• Court held that P’s cause of action is not time-barred unless & until D takes the plea.
  2) On D’s application to strike-out:
  i) Kuan Hip Peng:
• Limitation under CLA is absolute;
• D may apply to strike-out even without delivering defence & pleading limitation.

ii) Tasja Sdn Bhd v Golden Approach Sdn Bhd:

• Limitation under CLA & PAPA is absolute;
• D may apply to strike-out even without delivering defence or pleading limitation.

iii) Lay Kee Tee:
- a defendant on an application to strike out pleadings and indorsements under O.18, r.19(1) is entitled to raise limitation of action without pleading a defence and filing it to that effect.

NOTE: if the limitation is not absolute, i.e. in LA, D has to plead the limitation in his defence & seek trial of preliminary issue or apply to strike out under frivolous.

Question 23

SPECIFIC PLEAS IN PLEADINGS

Frustration

Answer 23

Pacific Forest Industries Sdn Bhd & Anor v Lin Wen-Chih:

• particulars which give rise to frustration must be provided specifically in the pleadings;
• failure to plead frustration as defence meant that the Court was precluded from considering that defence.

Question 24

SPECIFIC PLEAS IN PLEADINGS

Illegality

Answer 24

1) General rule - O.18, r.8:
- Facts giving rise to illegality must be specifically pleaded.
2) Exception - ex turpi causa - Merong Mahawangsa Sdn Bhd v Dato’ Shazryl Eskay Bin Abdullah:
- even where the illegality is not pleaded, a court of equity will not enforce a contract which is illegal or arises out of an illegal transaction.
3) Exception -4Ex-facie illegality - Narayanan v Kannamah:
- court may take into account ex facie illegality even though not pleaded or raised by parties.
3) Exception - Illegal contract or transaction - China Road & Bridge Corp. v DCX Technologies:

• the trial courts must be vigilant not to provide any relief on contracts which is void on the grounds of public policy, or illegality;
• this is so whether or not it is the pleaded case of the parties or whether the issue was raised during the trial.

Question 25

SPECIFIC PLEAS IN PLEADINGS

Admissions

Answer 25

Yam Kong Seng:

• a judicial admission made in a pleading stands on a higher footing than evidentiary admission;
• respondent’s admission in the pleadings are made the foundation of the rights of the parties.
• OTF, since there was a clear judicial admission of the debt owed, the respondent failed to avoid legal liability.

Rules for admissions: O.27

Question 26

SPECIFIC PLEAS IN PLEADINGS

Nuisance & negligence

Answer 26

Wisma Punca Emas Sdn Bhd v Dr. Donal R O’Holohan:

• the rule is, as long as D is not prejudiced, nuisance and negligence need not specifically pleaded BOTH if they arise from the same set of facts.
• as long as P pleads one of it, P is entitled to rely on both nuisance & negligence as long as they arise from the same set of facts.

Question 27

SPECIFIC PLEAS IN PLEADINGS

Fraud & forgery

Answer 27

1) Principle - Letchumanan Chettiar Alagappan & Anor v Secure Plantations Sdn Bhd:

• It is not always necessary to plead the word ‘fraud’ if the facts which make the conduct fraudulent are pleaded.
• ‘Fraud’ is a generic term that covers all manner of cheat, deceit and dishonesty.
• OTF, the appellant did not plead the word ‘fraud’ in the generic sense but pleaded ‘fraud’ in the specific sense of ‘forgery’.
• Given that ‘forgery’ was pleaded, it could not be said that ‘fraud’ was not pleaded at all.
• ‘Forgery’ is a specific method of ‘fraud’ and is ‘fraud’ in every sense of the word;
• A complaint of forgery is therefore a complaint of fraud.
• the correct test for a valid plea of fraud is whether or not the facts which make the conduct fraudulent are pleaded.
• Therefore, as long as P pleads facts that give rise to fraudulent conduct, P has already fulfilled the requirement of O.18, r.8 & O.18, r.12(a).

2) Application - Tay Tho Bok v Segar Oil Palm Estates:

• Although the word ‘fraud’ does not appear in the said para. 6 of the statement of claim, that paragraph contains an averment of dishonesty and particulars of the dishonest acts;
  Therefore, the defendant was not taken up by surprise & no prejudice was caused to D by failure of P to plead the word “fraud”.

Question 28

SPECIFIC PLEAS IN PLEADINGS

Contributory negligence

Answer 28

Anuar bin Mat Amin v Abdullah bin Mohd Zain (HC):

• The learned judge of the sessions court was wrong in considering contributory negligence in the case when contributory negligence was not pleaded nor otherwise properly made an issue of during the course of the trial.
• Therefore, contributory negligence MUST be specifically pleaded.

Question 29

SPECIFIC PLEAS IN PLEADINGS

PAPA 1948

Answer 29

Tengku Ali v Kerajaan Negeri Terengganu Darul Iman:

• If a party intends to rely upon any section of the Act as a defence, the Act or the section in question must be specially pleaded.
• The point of law on limitation, as is clearly required by O. 18 r. 18(1) RHC, must always be raised by an express plea.

Question 30

OBJECTION ON UNPLEADED POINTS

Overview

Answer 30

1) The rules
2) When can object
3) Example

Question 31

OBJECTION ON UNPLEADED POINTS

The rules

Answer 31

• Failure to object unpleaded point being raised amounts to waiver;
• This is so unless the unpleaded points represent a radical departure from the pleadings.

Question 32

OBJECTION ON UNPLEADED POINTS

When can object

Answer 32

OCBC v Phillip Wee Kee Puan (PC):

• The only time when objection could have been taken was when the evidence was tendered.
• The letter became part of the total material on which the judge had to decide the case;
• Therefore, failure to object the unpleaded points raised when it is tendered amounts to waiver.

Question 33

OBJECTION ON UNPLEADED POINTS

Example

Answer 33

Supritendent of Lands & Surveys v Hamit:

General rule:

• If a party is taken by surprise, he must object then and there at the point of time when such evidence emerges.
• However, the court will generally grant an adjournment if requested, for the pleadings to be amended.
• Party failing to object cannot be said to be taken by surprise, prejudiced, misled or embarrassed.
• Unpleaded point, when given without any objection by the opposing party, will further have the effect of curing the absence of such plea.

Exception:

• When an evidence represents a radical departure from the pleadings, and is not just a variation, modification or development of what has been alleged in the pleading in question, it does not have the effect of curing the absence of such plea.
• Failure to object such evidence does not amount to waiver.

Question 34

FURTHER & BETTER PARTICULARS

Overview

Answer 34

1) The law & scope
2) Object of FBP
3) When should apply for FBP
4) Discretion of court
5) Procedures to apply for FBP
6) Test to satisfy
7) Outcomes of application

Question 35

FURTHER & BETTER PARTICULARS

Law & scope

Answer 35

O.18, r.12(3):

• Court may order a party to serve any particulars in his pleadings;
• The order may be made in the terms court thinks just.

Question 36

FURTHER & BETTER PARTICULARS

Object of FBP

Answer 36

1) Spedding v Fitzpatrick:

• to enable the party asking for them to know what case he has to meet at the trial;
  to save unnecessary expense;
• to avoid allowing parties to be taken by surprise.

2) Lim Kee Tiak v Lim Kee Tian:
- To save time and expense and narrow down issues.
3) Dato’ Seri Dr. Ling Liong Sik v Krishna Kumar:

• INFORM: inform the other side of the nature of the case that they have to meet (as distinguished from the mode in which that case is to be proved);
• PREVENT: prevent the other side from being taken by surprise at the trial;
• PREPARE: enable the other side to know with what evidence they ought to be prepared and to prepare for trial;
• LIMIT & DEFINE: to limit the generality of the pleadings, define the issues to be tried and identify as to which issues discovery is required; and
• TIE: tie the hands of the party so that he cannot go into any matters not included.

Question 37

FURTHER & BETTER PARTICULARS

When should apply for FBP

Answer 37

Dato’ Seri Dr. Ling Liong Sik v Krishna Kumar:

• When a party’s pleading is insufficiently particularized.

Question 38

FURTHER & BETTER PARTICULARS

Discretion of court

Answer 38

1) Batcha Ammal v Ponnachi:

• The question of further and better particulars is essentially a matter of discretion;
• the object is to ensure that a defendant is informed with reasonable particularity as to the various matters which are alleged against him.

2) Dato’ V.K Lingam v Tommy Thomas:
- It is matter of discretion for the court whether or not to order a party to give the particulars sought.

Question 39

FURTHER & BETTER PARTICULARS

Procedures for application for FBP

Answer 39

1) The law:

O.18, r.12(6)

2) By letter - Re Estate of Lee Siew Kow:
- Application is by letter unless there is an adequate reason for not applying by letter.
2) Application to court:

• NoA + affidavit
• Court must be satisfied that application by letter sufficiently accounted for.

Question 40

FURTHER & BETTER PARTICULARS

Test to satisfy

Answer 40

Skrine & Co v MBF Finance:

• Particulars will be ordered in respect of those matters arising in the pleadings where it is relevant and necessary to enable the other party to respond or prepare his case.
• A litigant is not entitled to have his opponents’ evidence.

Question 41

FURTHER & BETTER PARTICULARS

Outcomes of application

Answer 41

1) FBP ordered: O.18, r.12(7)

• Mode of giving particulars: O.18, r.12(7) & Form 31
• Effect: FBP form part of pleadings.

2) FBP rejected:

Astrovlanis Compania Naviera SA v Linard:

• It will not be granted where there has been a delay in making the application especially where such an application will result in the postponement of the trial; or
• Where the particulars sought are in respect of matters of evidence.