Pahang

- vs -

Tengku Abdul Aziz

Judgment

HS Ong FJ

(delivering the judgment of the Court)

1. This is an appeal from the dismissal of an application for leave to amend the statement of defence by pleading s 9(1) of the Limitation Ordinance 1953 as a bar to the claim of the respondents as their action was commenced after the expiration of twelve years from the date on which the right of action accrued.

2. It is the claim of the respondents that by a document made in AH 1304 (1884 AD), the then Sultan of Pahang made a gift of certain lands being the basin of the Sungei Rompin and its tributaries from their sources to their mouths to the ancestors of the respondents. It is not necessary in this appeal to refer to the reliefs claimed. The only issue is whether the amendment should have been refused.

3. On 27 April 1977, the day fixed for hearing of Civil Suit No 9 of 1974, the Legal Adviser, Pahang applied to amend the statement of defence, in terms of a Summons-in-Chambers filed on 23 April 1977. Page 18 indicated this was taken up in Open Court on 27 April 1977 and adjourned to the following day, 28 April. The note at page 19 seemed to show that the application was referred back to the Judge in Chambers, when arguments were heard and then deferred to the following day for decision. On 28 April the brief note recorded that the application was dealt with in Chambers and dismissed. That same day, page 21 of the Record, noted that in Open Court, with both counsel present, the appellant’s counsel said he wished to appeal against the decision in Chambers and “asks that the hearing of the action be stayed until the disposal of the appeal.” His application for stay was supported by counsel for the respondents.

4. The learned judge in his judgment observed that the necessity for the amendment should have been abundantly clear to any ordinary practitioner from the moment the action was filed and overlooking ss 38 and 39, matters “essentially within the working knowledge of the ordinary practitioner” was inexcusable. By such conduct and laches, he deemed the appellant had acquiesced in the action and waived the privilege to plead the statute and is now estopped from invoking the plea.

5. We regret that both counsel failed to draw the attention of the learned judge to Ord.54 r 22A and to act in accordance therewith. It is obvious there has been indifference on all sides to the Rules of the Supreme Court Counsel for the respondent now seeks to take advantage of this non-observance, for which, in our view, he must accept some responsibility when he agreed to a stay of the action. We incline to the view that justice would not be served by acceding to objections on technicalities for non-compliance with Ord.54 r 22A.

6. We agree with learned counsel for the appellants that the recent amendment to Ord.70 r 1 would validate the proceedings. No party was taken by surprise or prejudiced by reason of the application. That application did not deny the respondents’ right to pursue their action. Dismissal, however, denies the appellant a defence which is clearly open to them. Counsel for the respondents based his preliminary objection in reliance upon Ord.54 r 22A and s 68(2) of the Courts of Judicature Act 1964. It is true that the Record does not show compliance with either. The judgment is at pages 22–26 and the order at page 27 is purported to have been made “In Open Court.” We would say we agree with what Gill CJ said in TO Thomas v KCI Reddy [1974] 2 MLJ 87, 92:—

   Reading sub-s (2) of s 68 of the Act in conjunction with r 22A, it would seem clear that leave to appeal is not required either if the judge issues a certificate that he requires no further argument or hears arguments in court and proceeds to make an order. The absurdity of the argument that leave is required even after a judge has made an order in court on reconsidering the matter after hearing further arguments lies in the fact that such reconsideration would not be considered even on par with a mere certificate that no further arguments are required for the purpose of such reconsideration.

7. We would allow the appeal and set aside the order refusing leave to amend. The appellant is given leave to amend subject to paying costs occasioned thereby. We make no order on the costs of this appeal.

Cases

TO Thomas v KCI Reddy [1974] 2 MLJ 87

Legislations

RSC 1957, Ord. 54 r 22A, Ord. 70 r 1

Courts of Judicature Act 1964: s. 68(2).

Representation

Lim Beng Choon (Senior Federal Counsel) for the appellant.

HL Tennakoon for the respondents.