1. ) Noor Liyana Binti Ahmad Marzuki v Mohd Fadli Bin Mohamed Salleh @ Salleh (WA-23CY-11-04/2025)

NOOR LIYANA BINTI AHMAD MARZUKI (NRIC No.: 811124-14-6546)

MUHAMMAD NAJIB BIN ABU BAKAR (NRIC No.: 820516-14-5715) …PLAINTIFFS AND MOHD FADLI BIN MOHAMED SALLEH @ SALLEH (NRIC No.: 830706-03-5911) …DEFENDANT GROUNDS OF JUDGMENT [Enclosure 8] Preliminary [1] By way of Enclosure 8, the defendant is seeking leave from this Court to file a Reply to Defence to Counterclaim. The purpose of this is to reply to the plaintiffs' Reply to Defence and Defence to Counterclaim. [2] The application is made in accordance with Order 18 rule 4 of the Rules of Court 2012 ("ROC 2012"), which provides that: Pleadings subsequent to reply (O. 18, r. 4)

Pleadings subsequent to a reply or a defence to a counterclaim shall not be served except with the leave of the Court. An overview of the facts of the case [3] The suit involves a claim of defamation. [4] The parties involved here are all what are commonly referred to as influencers in today's world. [5] The plaintiffs claim that the defendant had defamed them by mentioning their names in subsequent postings, which followed two main articles written by the defendant in a news portal on a matter in which local radio station deejays were fined by the Malaysian Communications and Multimedia Commission (“MCMC”) for mentioning religiously sensitive topics in one of their radio segments. [6] The defamation postings allegedly suggested that the plaintiffs were not sensitive to issues relating to their own religion. [7] Meanwhile, the defendant counterclaimed on defamation issues, claiming that the plaintiffs implied that all charity work by the defendant was insincere and a form of taking advantage of national and disaster issues. Court’s analysis and findings [8] Before going into the merits of the application, the parties have agreed for me to decide on a preliminary issue raised by the defendant by way of a preliminary objection. [9] On this, the plaintiffs argue that the affidavit in support of Enclosure 8 and its affidavit in reply were both affirmed by the learned solicitor for the defendant. There was no affidavit filed by the defendant. [10] Pursuant thereto, the plaintiffs argue that given the issues raised by the defendant in the draft Reply to Defence to Counterclaim consist of facts which could only be known by the defendant personally, it is unreasonable and inappropriate for the learned solicitor to file both affidavits on matters arising from those facts. [11] Meanwhile, the defendant argues that the contents of both affidavits only contain issues of law as opposed to issues of fact. [12] In this regard, the defendant claims that the issue of law involved Order 78 rule 3 of the Rules of Court 2012, which provides that: Obligations to give particulars (O. 78, r. 3)

(1) Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in respect of such sense.

Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he must give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.

Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice, but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.

This rule shall apply in relation to a counterclaim for libel or slander as if the party making the counterclaim were the plaintiff and the party against whom it is made the defendant. [13] Also, the defendant argues that the draft Reply to Defence to Counterclaim was drafted pursuant to the position of the law proposed by the defendant's solicitor and therefore must be done by the solicitor because, eventually, notwithstanding the facts that came from the defendant, it is the defendant’s solicitor's obligation to draft the affidavit on behalf of the defendant as her client. [14] Therefore, there is no necessity to give any reason why the defendant does not personally affirm those affidavits. [15] I have given this matter my utmost consideration. [16] Having analysed the parties’ position, I am constrained to allow the preliminary objection as raised by the plaintiffs. [17] To this end, notwithstanding the interesting arguments raised by the defendant, I find that upon perusing both affidavits, which were drafted pursuant to the facts contained in the draft Reply to Defence to Counterclaim, the affidavits could not have been drafted without the facts that were available personally and in the knowledge of the defendant. [18] Here, even though the issues that arose were said to be out of the provisions of the law, the applicability of this law must still depend on facts. It is necessary to establish some facts in order to establish the law's applicability before the law can be applied. [19] According to the defendant's draft Reply to Defence to Counterclaim, the plaintiffs have referred to him by his nickname in their postings, and allegations have been made about the defendant's physical appearance and interpretation of these postings, which led to the conclusion that he was being referred to, thus defamatory. [20] As such, I find that the issues that have been deposed in the affidavits are still based upon contentious facts. It is only the defendant who knows these contentious facts. [21] Therefore, I find that there are no valid affidavits filed in support of Enclosure 8. [22] Those findings above are guided by the case of Malayan Banking Bhd v Charterefield Corp Sdn Bhd [2001] 3 MLJ 160, in which His Lordship Ramly Ali JC (as His Lordship then was) identified what conditions must be met if a solicitor is to depose an affidavit for the litigant. His Lordship observed at page 165: Based on the above cited cases, I am of the view that a solicitor may depose an affidavit on behalf of the litigant if all the following conditions are fulfilled:

the facts to be deposed must not be contentious or disputed question of facts;

(ii) the facts to be deposed must be from his knowledge (if the affidavit is for the purpose of being used in interlocutory proceedings, it may contain statements of information or belief with sources and grounds thereof); and

(iii) he is authorized to depose the affidavit by the litigant. Conclusion [23] In light of the above, Enclosure 8 is dismissed with costs in the cause of RM3,000.00 subject to allocatur. Dated 14th August 2025 …………………………………………… (Raja Ahmad Mohzanuddin Shah) Judge High Court of Malaya Kuala Lumpur Counsel for the Plaintiffs - Fatima Zulaikha Ahmad Bashri Messrs Faizal Rahman & Co Counsel for the Defendant - A. Chinnapalani Devi Messrs Nor Zabetha Chinna & Co