1. ) Amran Bin Ismail v 1. ) Habibah Binti Ismail (PA-12A-26-07/2022)

AMRAN BIN ISMAIL

NOR HATINI BINTI IBRAHIM (NO. K/P: 760131065536) … PERAYU-PERAYU DAN 1. HABIBAH BINTI ISMAIL

MUHAIMIN BIN MOHAMAD

MOHD HAZWAN BIN MOHAMAD

MOHAMAD BIN SAAD (NO. K/P: 610414026015) … RESPONDEN-RESPONDEN (Dalam Mahkamah Sesyen Di Butterworth Dalam Negeri Pulau Pinang, Malaysia

Antara

Amran Bin Ismail Nor Hatini Binti Ibrahim … Plaintif-Plaintif S/N gBfaPh5jdk6py4u0shDX9w

Habibah Binti Ismail

Muhaimin Bin Mohamad

Mohd Hazwan Bin Mohamad

Mohamad bin Saad ...Defendan-Defendan) JUDGMENT (JOINDER OF PARTIES: APPLICATION TO ADD A PARTY) PRELUSION [1] This is an Appeal from the Sessions Court (SC). The suit in the SC is a defamation suit (Suit). The Plaintiffs sues the Defendants for slander. The Defendants mounts a Counterclaim. The Counterclaim is for libel. [2] In their Counterclaim, the Defendants wish to add Mohamad Bin Saad as a party, as he too has a cause of action for libel against the Plaintiffs, based on the same material facts. [3] The Defendants filed an Application under Order 15 Rule 6 of the Rules Of Court 2012 (ROC) to add Mohamad Bin Saad into the Counterclaim so that he becomes a party to the Suit. [4] By Order dated 5.7.2022, the SC allowed the Defendants’ joinder Application. The Plaintiffs were not pleased with the SC’s Order. They appeal to the High Court. That is the Appeal before me. S/N gBfaPh5jdk6py4u0shDX9w Page 3 of 8 THE RELATIONSHIP AMONG THE PARTIES [5] The parties are family members. I will describe the relationship among the family members using the intitulement of this Suit— P1: Amran Bin Ismail P2: Nor Hatini Binti Ibrahim (Amran’s wife) v. D1: Habibah Binti Ismail (P1’s sister and Mohamad Bin Saad’s wife) D2: Muhamin Bin Mohamad (D1’s son and Mohamad Bin Saad’s son) D3: Mohd Hazwan Bin Mohamad (also D1’s son and Mohamad Bin Saad’s son) [6] They are also neighbours. They live in the same ‘kampung’. PERTINENT PLEADED FACTS [7] What triggered the quarrel between the Plaintiffs and the Defendants was the distribution of property on the demise of P1’s and D1’s mother. Their relationship with each other turned sour after their mother passed away. [8] In May 2017, P1 and P2 were having matrimonial problems. By August 2019, they were divorced by ‘lafaz talak’. But only a few months later, in December 2019, they were re-married. S/N gBfaPh5jdk6py4u0shDX9w Page 4 of 8 [9] The Plaintiffs assert that D1 (P1’s sister) uttered, and continued to utter, words that were derogatory of them, including words that meant that they were committing ‘khalwat’. [10] They plead that these words were heard by various persons, including the Imam of their kampung, the neighbours and other residents of the kampung, and other family members. [11] The Defendants plead their defence to the Claim, and mount a Counterclaim against the Plaintiffs. The Defendants assert that the Plaintiffs published libelous words about them in P1’s Facebook page. [12] The Defendants assert that the Plaintiffs’ words that defamed the three Defendants (D1-D3) also defamed Mohamad Bin Saad, who is D1’s husband and D2&D3’s father. He is the patriarch of the family. [13] Since Mohamad Bin Saad asserts a cause of action for libel against the Plaintiffs, the Defendants applied to add him as a co-defendant in the Suit so that he too can mount a Counterclaim against the Plaintiffs. PRINCIPLES GOVERNING THE JOINDER OR ADDING OF PARTIES [14] The Defendants made the Application to add Mohamad Bin Saad as a party under Order 15 Rule 6 of the ROC. Order 15 Rule 6, particularly subrule (2), paragraph (b) is pertinent. Order 15 Rule 6 is set out below—

Order 15 Rule 6 Misjoinder and non-joinder of parties (O. 15 r. 6) S/N gBfaPh5jdk6py4u0shDX9w

A cause or matter shall not be defeated by reason of the misjoinder or non-joinder of any party, and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application-

order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

order any of the following persons to be added as a party, namely-

any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter… [emphasis added] DECISION AND REASONS [15] I apply the requirements of Order 15 Rule 6(2)(b)(ii) and find that if there is an issue of dispute between P1 and his brother-in-law: Mohamad Bin Saad, and it is “just and convenient” to determine the issues between S/N gBfaPh5jdk6py4u0shDX9w Page 6 of 8 them in the SC defamation Suit—then the leave of Court for Mohamad Bin Saad to be joined or added to the Suit should be given. [16] I find that D1-D3’s Counterclaim against the Plaintiffs is for the libel that P1 allegedly committed in his Facebook page against their family, which includes Mohamad Bin Saad. He is the husband and the father. [17] Also, P1 referred to an incident about the Suzuki RC100 motorcycle that referred to a police officer, which Mohamad Bin Saad asserts is a reference to him. He asserts that the publication is about him. [18] I find that there are indeed issues between P1 and Mohamad Bin Saad which are premised on the material facts of the Claim and the Counterclaim, which relate to the reliefs and remedies prayed for in the Claim and the Counterclaim. The issues arising between them also relate to the Plaintiffs’ cause of action for slander against D1-D3, and D1-D3’s cause of action for libel against the Plaintiffs. And in my opinion, it would be just and convenient to determine these issues among all of them in the same Suit. [19] I am of the view that Mohamad Bin Saad should be allowed to file his claim, and he should be allowed to be added to this Suit so that he can file his claim against the Plaintiffs, as part of the Defendants’ Counterclaim. [20] And of course, Mohamad Bin Saad has to prove his claim at trial. Likewise, P1 has to prove his defence to the Counterclaim at trial. S/N gBfaPh5jdk6py4u0shDX9w Page 7 of 8 [21] Further, I am of the view that instead of Mohamad Bin Saad filing a separate libel suit against P1, and then in all likelihood later consolidating or applying for his suit to be heard together with this Suit—it is just, expeditious and economical to add Mohamad Bin Saad as a co-defendant in this Suit, so that his and D1-D3’s Counterclaim can be canvassed and determined together with the Plaintiffs’ original suit. CONCLUSION [22] For these reasons, I dismiss the Plaintiffs’ Appeal (against the SC’s Decision to allow Mohamad Bin Saad to be added as a party to this Suit). In other words, the SC Order to add Mohamad Bin Saad as a co-defendant in this Suit stands. I also order costs of RM5K to be paid by the Plaintiffs to the Defendants by 23.3.2023. Costs are subject to the allocatur. Dated: 24 March 2023 signed KENNETH ST JAMES Judicial Commissioner High Court of Penang S/N gBfaPh5jdk6py4u0shDX9w Page 8 of 8 Counsel/Solicitors For the Appellants: Bharathi A/P Sinnathamby [Messrs. Bharathi & Associates (Kuala Lumpur)] For the Respondents: Muhammad Firdaus Bin Abd Razak [Messrs. Zarkasya & Co. (Selangor)] Statutes referred to:

Order 15 Rule 6 of the Rules Of Court 2012 S/N gBfaPh5jdk6py4u0shDX9w