Mohd Yazid Bin Mohd Sahari v Majlis Daerah Hulu Selangor (BA-12ANCvC-12-04/2023)

The matter before this Court concerns two basic aspects of practice and procedure. The first relates to the proper mode of commencement and the second appertains to the principle of striking out.

The Sessions Court had allowed the Respondent’s (Defendant in the Sessions Court) application to strike out the Appellant’s (Plaintiff in the Sessions Court) Writ and Statement of Claim pursuant to Order 18 rule 19(1)(a), (b) and/or (d) of the Rules of Court 2012. Dissatisfied with that decision, the Appellant filed the present appeal before this Court.

The twin principal issues in this appeal are:

Whether the Appellant was entitled to commence the action in the Sessions Court by way of a Writ action, as opposed to by way of Judicial Review; and

Whether the Writ and Statement of Claim disclosed a reasonable cause of action within the meaning of Order 18 rule 19(1)(a) of the Rules of Court 2012. The Parties and the Pertinent Facts [4] The Appellant is one Mohd Yazid bin Mohd Sahari. The plaintiff is the tenant of two vacant lands which he has rented from the landlord for a two-year period, that is, from 15 May, 2022 to 14 May, 2024. [5] The Respondent is the Majlis Daerah Hulu Selangor. [6] The Appellant had commenced an action in the Sessions Court against the Respondent by way of a Writ action. The cause of action was premised on trespass to land and the wrongful seizure and the subsequent failure, refusal and/or negligence by the Respondent to return a bulldozer machine which the Appellant had rented. The reliefs sought were for, inter alia:

Amount of RM166,400.00 as at 5 October, 2022;

Interest at Rate of 5% per annum calculated on a daily basis on Amount of RM166,400.00 calculated from the 6 October, 2022 to the date of full settlement;

General Damages to be assessed by this Court and to be paid by the Defendant to the Plaintiff;

Punitive damages to be assessed by this Court and to be paid by the Defendant to the Plaintiff; and

Costs. The Decision of the Sessions Court [7] At the Sessions Court, the Appellant’s Writ and Statement of Claim were struck out pursuant to Order 18 Rule 19(1)(a) or (b) and/or (d) of the Rules of Court 2012 with costs. [8] One of the grounds relied on by the learned Sessions Court Judge for the striking out of the Appellant’s Writ and Statement of Claim was that the Appellant has utilized the wrong mode of commencement. The Sessions Court held that the proper mode was by way of a judicial review process and this ground alone justified the striking out on the ground of an abuse of the process of court. [9] The Sessions Court also concluded that the Appellant’s suit did not disclose any reasonable cause of action within the meaning of Order 18 rule 19(1)(a) of the Rules of Court 2012. The Parties’ Contentions [10] The essence of the Appellant’s case in this appeal is that the Sessions Court had erred in invoking Order 18 Rule 19(1)(a) or (b) and/or

of Rules of Court 2012 to strike out its claim. [11] First, it is the Appellant’s submission that the learned Sessions Court Judge had erred in dismissing his Writ and Statement of Claim on the ground that he should have invoked the procedure in Order 53 of the Rules of Court 2012. Second, the Appellant also averred that the learned Sessions Court Judge had erred in agreeing with the Respondent that the Appellant’s action “discloses no reasonable cause of action” within the meaning of Order 18 rule 19(1)(a) of the Rules of Court 2012. [12] With regards to the wrong mode of commencement ground, the Appellant submitted that there exists a valid cause of action by way of private law and therefore this case does not need to be initiated by judicial review proceedings. The Appellant further argued that even if the court is uncertain as to whether there is any private law cause of action or whether this action ought to have been initiated by way of judicial review, the action ought not be summarily struck out. The Appellant claimed that the Sessions Court should have proceeded to hear all the evidences prior to making any determination. [13] The Appellant relied primarily on the decision of the Federal Court in Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJL 145; [2010] 5 CLJ 865; [2010] MLJU 196; [2010] 1 MLRA 524 (“Ahmad Jefri”) for the proposition that “not every decision made by an authoritative body is suitable for judicial review” and that “there must be sufficient public law elements in the decision made” before judicial review is deemed obligatory and the case of Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loong & Ors [2006] 2 AMR 563; [2006] 2 CLJ 1; [2006] 2 MLJ 389; [2006] 1 MLRA 166 which observed “that remedies for protecting both private and public rights can be given in private law proceeding and an application for judicial review”. [14] The Appellant further underscored the point that his writ action was based on the following causes of action, namely, tort of negligence, tort of conversion and tort of trespass to land and he was thus accordingly entitled to the legal remedies under the private law of negligence, tort of conversion and trespass to land. [15] To substantiate his contention that these causes of action are in the sphere of private law, the Appellant made reference to the decision of the Court of Appeal in the case of OSK Trustees Bhd v Metroplex Holdings Sdn Bhd [2019] 10 CLJ 1; [2020] 3 MLJ 358; [2019] 4 MLRA 324 which duly explained the principle of tort of conversion and another decision of the High Court in Jik Teck Piling Sdn Bhd v Jopp Builders Sdn Bhd [2016] AMEJ 0834; [2014] CLJU 1916; [2014] MLJU 1820; [2014] MLRHU 1429. [16] The Appellant also relied on two decisions by the High Court in Perbadanan Pengurusan Rumah Pangsa Taman Tasik Utama Lot 11846 v Metacorp Properties Sdn Bhd [2017] AMEJ 1124; [2018] 2 CLJ 246; [2017] MLJU 2233; [2017] MLRHU 1008 and Abdul Murthalib bin Hassan v Maimoon binti Haji Abd Wahid [1992] 2 CLJ Rep 5; [1992] 1 CLJ 88; [1992] 2 MLJ 108; [1991] 3 MLRH 437 on the law of the tort of trespass to land. [17] Expectedly, the Respondent adopted the diametrically opposing view and argued that first, the Sessions Court was correct in deciding that this action against the Respondent should have been commenced by way of judicial review and second, the causes of action were or had not been clearly set out or pleaded. [18] The Respondent’s position was that in initiating this action by way of a writ action instead of by way of judicial review, the Appellant had abused the process of court. [19] It is interesting to note that the Respondent also relied on Ahmad Jefri. The Respondent then went on to cite the following three cases, namely Ahmad Amryn bin Abd Malek & Ors v Bursa Malaysia Securities Bhd [2020] AMEJ 0755; [2021] 2 CLJ 222; [2021] 8 MLJ 948; [2021] 1 MLRH 69, Rosli bin Yang Danian v Datuk Mohd Zain bin Mohd Dom & Ors [2016] AMEJ 1011; [2015] CLJU 1351]; [2016] 9 MLJ 669; [2015] MLRHU 1302 and YKK (M) Sdn Bhd v Pengarah Tanah dan Galian Johor [2021] 8 CLJ 197; [2021] 6 MLJ 496; [2021] MLRA 476 where in each of these three cases, the holding was that the actions in those cases should have been initiated by way of the judicial review procedure instead of a writ action. [20] The nub of the Respondent’s second ground was that the Appellant had failed to sufficiently plead the causes of action and this rendered the Writ and Statement of Claim as disclosing no reasonable cause of action within the purview of Order 18 rule 19(1)(a) of the Rules of Court 2012. In support of this contention, the Respondent relied on Order 18 rule 12 of the Rules of Court 2012 and the decision of the High Court in Syarikat Logistik Petikemas Sdn Bhd v Maruzen Sh Logistics Sdn Bhd [2020] 7 AMR 408; [2020] CLJU 794; [2020] MLJU 1008; [2021] 2 MLRH 218. The Applicable Law and Principles [21] In support of the above respective contentions as outlined in paragraphs [10] to [20] above, both parties submitted numerous decided cases as authorities to support their respective positions. The principles enunciated in these cases are clear and do not require restatement. [22] Order 18 rule 12 and Order 18 rule 19(1)(a) – (d) of the Rules of Court 2012 are two core provisions that affect the present appeal. These provisions provide as follows: Particulars of pleading (O. 18, r. 12)

12.

Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words —

particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and

where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.

No party shall quantify any claim or counterclaim for general damages.

Where it is necessary to give particulars of debt, expenses or damages and those particulars exceed three folios, they shall be set out in a separate document referred to in the pleading and the pleading shall state whether the document has already been served and, if so, when, or is to be served with the pleading.

The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just.

Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of paragraph (3), the Court may, on such terms as it thinks just, order that party to serve on any other party —

where he alleges knowledge, particulars of the facts on which he relies; and

where he alleges notice, particulars of the notice.

An order under this rule shall not be made before service of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason.

Where the applicant for an order under this rule did not apply by letter for the particulars he requires, the Court may refuse to make the order unless the Court is of the opinion that there were sufficient reasons for an application by letter not having been made.

The particulars requested or ordered and supplied shall be served in accordance with Form 31. Striking out pleadings and endorsements (O. 18, r. 19)

19.

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that —

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. [23] On the principle governing striking out, it came as no surprise that the Appellant alluded to Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 2 AMR 1969; [1993] 4 CLJ 7; [1993] 3 MLJ 36; [1993] 1 MLRA 611 and Mak Yan Tai & Anor v Chia Moy King & Ors [2020] CLJU 1022; [2020] MLJU 1334; [2020] MLRHU 1066 on the exercise of the court’s powers under Order 18 rule 19(1)(a) of the Rules of Court 2012. The Decision of this Court [24] Having carefully reviewed and analyzed the cause papers, the submissions by the parties and the authorities, this Court is of the considered view that the Appellant was entitled to commence the action by way of Writ. [25] As remarked by the Federal Court in Ahmad Jefri: [62] We observed that a challenge on the use of appropriate procedure is very much fact based. Thus, it is necessary for a judge when deciding on such matter to first ascertain whether there is a public law element in the dispute. If the claim of infringement is based solely on substantive principles of public law then the appropriate process should be by way of O. 53 of the RHC. If it is a mixture of public and private law then the court must ascertain which of the two is more predominant. If it has substantial public law element then the procedure under O. 53 of the RHC must be adopted. Otherwise it may be set aside on ground that it abuses the court’s process. But if the matter is under private law though concerning a public authority, the mode to commence such action under O. 53 of the RHC is not suitable. [26] In this Court’s view, the above directives are clear. The key takeaways are that: • The question as to which is the appropriate procedure to be used is dependent on the factual matrix of each case; • Once it has been established that a claim is based solely on substantive principles of public law, then the appropriate process should be by way of judicial review; • If a matter is under private law though concerning a public authority, the judicial review procedure is not suitable; and • If it is a mixture of public and private law then the court must ascertain which of the two is more predominant. [27] This Court is of the considered view that the Appellant’s claim is not based solely on substantive principles of public law. Therefore it is incorrect to conclude that the Appellant’s only recourse is by way of judicial review proceedings. As observed by the Federal Court in Ahmad Jefri, there is a need for a court to ascertain whether it is the public law or the private law element that is more predominant. [28] This Court is also of the view that the lapse of time argument is irrelevant if Order 53 of the Rules of Court 2012 is not the governing procedure. [29] Likewise, after having thoroughly examined the cause papers, considered the arguments from both sides, and reviewed the legal precedents, this Court is of the view that the causes of action have sufficiently been set out or pleaded in the Statement of Claim. [30] There are issues pertaining to service of the various notices, the granting of consent/permission and elements of trespass and conversion that will have to be established and ventilated. [31] In view of the above findings, this is not a plain and proper case for Order 18 rule 19(1)(a) to be invoked, that is, to justify the striking out of the Writ and Statement of Claim. [32] The decision of the learned Sessions Court Judge is set aside. [33] The Respondent to pay costs of RM5,000 to the Appellant. Dated: 20 March, 2024 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Manpal Singh Sachdev a/l Manjit Singh with Helmi bin Zaharin for the Appellant (Messrs. Manjit Singh Sachdev Mohammad Radzi & Partners) Mohd Nazri bin Yahya and Jailani bin Moh Fari for the Respondent (Messrs. Nazri Yahya & Co.)