BA-24NCVC-1898-11/2022
High Court of Malaysia29 Sept 2023
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“any case precedent except to say that what the Plaintiff has done here also constitutes multiplicity of proceedings which is intended to be prevented by paragraph 11 of the Schedule to the Courts of Judicature Act 1964 which provides for “Power to dismiss … proceedings … where by reason of multiplicity of proceedings i”
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1
The Plaintiff/BH Chong’s application in this Originating Summons seeks an order to direct the Defendant/Hanson to produce the original of Letter of Guarantee and Indemnity dated 29.8.2005, part of the subject matter in another Sessions Court suit, for forensic examination by the Chemistry Department of Malaysia regarding the authenticity of the signature therein said to be BH Chong’s signature.
2
This is not a fresh application before the commencement of a court suit but a collateral or circuitous way of circumventing the relevant Sessions Court in applying for an order which is ancillary to the Sessions Court suit and which is well within the jurisdiction of the relevant Sessions Court.
3
On 29 September 2023 this Court dismissed the Plaintiff’s Originating Summons with costs.
4
Dissatisfied, the Plaintiff has appealed to the Court of Appeal. Legal principle
5
It is basic and elementary principle of procedural law that when a litigant in a court case intends to make an application for inspection or examination of an original document which is used or being used as evidence in a pending court case, the litigant applies for the 3 necessary order for inspection or examination in the same court case. Where the necessity for such application arises in a subordinate court case, such application is to be made to the same subordinate court which is hearing the case, as it is well within the powers and jurisdiction of the subordinate court to make such order.
6
The law does not countenance a leapfrogging process of circumventing the subordinate court by parachuting to the High Court an application for order of inspection or examination of documents used or to be used in the pending subordinate court case.
7
As this procedural matter is so basic and elementary, this Court does not propose to cite any case precedent except to say that what the Plaintiff has done here also constitutes multiplicity of proceedings which is intended to be prevented by paragraph 11 of the Schedule to the Courts of Judicature Act 1964 which provides for “Power to dismiss … proceedings … where by reason of multiplicity of proceedings in any court or courts the proceedings ought not to be continued.”
8
In the Shah Alam Sessions Court Suit No. BA-B52C-37-11/2021 (“the Sessions Court Suit No. 37”), Hanson sued BH Chong and CP Ser as guarantors for the unpaid value of goods sold by Hanson to Syarikat Generasi Nirwana Sdn Bhd, a company in which BH Chong and CP Ser were Directors. BH Chong and CP Ser was sued in the Sessions Court Suit No. 37 as the guarantors of Syarikat Generasi 4 Nirwana Sdn Bhd pursuant to the Guarantee and Indemnity dated 29.8.2005.
9
The issue on signature in the Guarantee and Indemnity dated 29.8.2005 was one of the issues in the Sessions Court Suit No.37 whereby Session Court has rejected BH Chong’s argument on signature and then proceeded to grant summary judgement in favour of Hanson (the Plaintiff in the Sessions Court Suit No.37): see paragraphs 15(b) and (c) of the Defendant’s Affidavit in Reply (Enclosure 5). These paragraphs 15(b) and (c) of the Defendant’s Affidavit in Reply are not denied by the Plaintiff: see paragraph 10 of the Plaintiff’s Affidavit in Reply (Enclosure 8).
10
Whatever dissatisfaction that a party has regarding the Sessions Court's decision including procedural or evidential rulings, ought to be raised in an appeal against the Sessions Court's decision and not by filing a fresh and separate suit in respect of one of the issues there.
11
Filing fresh and separate suit like this would result in multiplicity of proceedings, or a collateral attempt to re-litigate the same issue in a separate forum.
12
In the premises, the Originating Summons here is frivolous and an abuse of process in terms of procedure and/or mode of commencement. 5
13
In conclusion, this Court on 29 September 2023 dismissed the Originating Summons with costs.
14
After the dismissal of the Originating Summons on the ground of duplicity of proceeding and abuse of process, it is unnecessary to look at the merits of the application.
15
As the merits of the application forms part of another court suit and it has become unnecessary for this Court to decide on it, this Court will refrain from making any comment on the merits. Dated this : 26th October 2023 Signed ….….............................................................. TEE GEOK HOCK JUDGE HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) 6 To the parties’ solicitors:
1
For the Plaintiff : Ahmad Zayd Ahmad Zuber Messrs Faisal & Zayd (Petaling Jaya)
2
For the Respondent : Pannir Selvam s/o Narayanasamy Messrs N. Selvam, Jay and Company (Kuala Lumpur)
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