Serba Kemas Sdn Bhd v 1. ) Pentadbir Tanah Kulim (KA-21NCVC02-03/2019)

2.KERAJAAN NEGERI KEDAH DARUL AMAN 2 | P a g e GROUNDS OF JUDGMENT Introduction This is the Defendants’ application in Enclosure 17 to strike out the Writ of Summons and Statement of Claim (‘SoC’) both dated 5 March 2019, under O. 18, r.19(1)(b), (c) and/or (d) of the Rules of Court 2012 (‘RoC 2012’) and/or under the inherent jurisdiction of the Court (‘Striking Out Application’). Having read Enclosure 17 and all the Affidavits and written submissions filed, I dismissed Defendants’ application with cost of RM2,000.00. These are my full grounds for the decision. The Cause Papers The Bundle of Pleadings has been filed as Enclosure 17. The relevant affidavits pertaining to Defendants’ application are as follows:

The Notice of Application dated 28 October 2019 (“Enclosure 17”).

Affidavit In Support affirmed by Nurulashikin binti Mahadzir on 28 October 2019 (“Defendants’ 28 .10. 2019 Affidavit”)

Affidavit In Reply affirmed by Ang Siak Ewe on 13 November 2019 (“Plaintiff’s 13.11.2019 Affidavit”)

Plaintiff’s Notice of Intention to Use Affidavit dated 1 November 2019 filed under Enclosure 12 Application to use the Affidavit In Support affirmed by Ang

Affidavit In Reply affirmed by Nurulashikin binti Mahadzir on 28 November 2019 (“Defendants’ 28.11.2019 Affidavit)

Defendants’ Notice of Intention to Use Affidavit dated 27 November 2019 filed under the Enclosure 12 Application to use the Affidavit In Reply affirmed by Abdul Ghafar bin Yahya on 8 September 2019 (“ Defendants’ 8.9.2019 Affidavit”). 3 | P a g e Background Facts In order to have a proper understanding of this Striking Out Application, it is necessary for me to trace the litigation history of this suit in brief. The Plaintiff is a company incorporated in Malaysia and having its registered office at No. 232, Taman Kota Jaya, Kota Sarang Semut 06800 Alor Setar, Kedah. The 1st Defendant is the Pentadbir Tanah Daerah Kulim in Kedah and having its registered address at Pejabat Tanah Kulim, 09000 Kulim, Kedah. The 2nd Defendant is the State Government of Kedah and having its address at Aras 4 Blok B, Wisma Darul Aman, 05503 Alor Setar, Kedah Darul Aman, Malaysia. The 2nd Defendant is sued on the basis that it is responsible for the acts and/omissions of the 1st Defendant and/or his servants or agents. On 18.9.1995, Cayman Development Sdn. Bhd. (“Cayman Development”) entered into a joint-venture agreement (“JVA”) with Meenachi Holding and Trading

(M) Sdn, Bhd. (“Meenachi”) with the intention to develop several pieces of land owned by Meenachi and Cayman Development respectively. Pursuant to the JVA, Cayman Development was under a duty to make necessary applications to the relevant authorities for approval for the conversion, amalgamation and/or sub-division of the said land into commercial and industrial projects. On 2.8.1995, Cayman Development and Meenachi surrendered the said lands to the 1st Defendant for re-alienation under section 204 of the National Land Code

The said lands were re-alienated as H.S (M) 960/96 Lot No. pt 5700 Bandar Kulim (33733 square feet) and registered in the name of Cayman Development (“the subject land”). On 11.7.1998, the subject land was sold to the Plaintiff by the 1st Defendant without encumbrances for RM450,000.00. At all material times, the Sale and Purchase Agreement was executed with an intention to purchase the subject land as a whole. Accordingly, the Plaintiff was duly registered as the legal owner of the subject land. On 5.1.2008, Meenachi filed a Civil Suit No. 22-02-2008 against the Plaintiff and the 1st Defendant herein, seeking declaration, inter alia, that the transfer of the subject land to the Plaintiff by Cayman Development is null and void. 4 | P a g e On 31. 10.2011, the High Court dismissed Meenachi’s suit on the ground that the Plaintiff was a bona fide purchaser. However, the Court of Appeal reversed the High Court’s Order on the ground that section 204 of the National Land Code was not applied correctly by the 1st Defendant. The ground of judgment was only made available by the Court of Appeal on 12 .10. 2015. The Plaintiff filed the motion for leave to appeal in the Federal Court. In March 2016, the Federal Court dismissed the Plaintiff’s motion. As a result of that, the transfer of the subject land by Cayman Development to the Plaintiff was declared null and void and of no effect. Hence, in the SoC filed on 5 March 2019 , the Plaintiff pleaded that the 1st Defendant as servant and/or agent of the 2nd Defendant is negligence and/or breach of statutory duty as follows:

Failing to appreciate or understand sufficiently or at all the duty imposed on the 1st Defendant by the relevant provisions of National Land Code in relation to the registration on alienation land.

Failing to appreciate or understand sufficiently or at all the consequences of the failure to register Meenachi’s name on the subject land.

Failing to register the subject land in favour of the Meenachi’s name which contradicts the true intention of the parties. The Defendant’s Submissions In brief, the Defendants’ main argument in support of the Striking Out Application is that the Plaintiff’s claim is filed out of the limitation period. The Defendants’ prayers are for the following reasons: “1. Tindakan Plaintiff adalah berhubung satu kausa tindakan untuk deklarasi sama ada defendan telah cuai dan tuntutan kos bayaran guaman permulaan guaman sivil no. 22-02-2008 dan juga di Mahkamah Rayuan di mana Plaintiff tidak berhak menuntut dan terhalang oleh undang-undang had masa. 5 | P a g e

Writ Saman & Pernyataan Tuntutan Plaintif ini adalah satu tindakan yang mengaibkan, remeh atau menyusahkan kerana tindakan tersebut terhalang oleh had masa di bawah Akta Perlindungan Pihak berkuasa 1948.

Tindakan yang diambil oleh Plaintiff juga boleh menjejaskan, menghalang atau melengahkan perbicaraan tindakan dengan adil.

Tindakan Plaintif memfailkan tindakan ini menjadikan permohonan ini suatu penyalahgunaan proses Mahkamah.” The Defendants contended that the Plaintiff who was the 1st Defendant in the previous suit had been in the knowledge of the action taken by Meenachi Holdings on 5 January 2008 when Meenachi filed a Civil Suit No. 22-02-2008 against the Plaintiff and the 1st Defendant herein seeking declaration, inter alia, that the transfer of the subject land to the Plaintiff by Cayman Development is null and void. However, the Plaintiff did not take action against the Defendant on the issue of negligence. Therefore, the Defendants submitted that by looking at the date, the Plaintiff was supposed to be aware of the issue much earlier and therefore is not entitle to make a claim now since it is already out of time. Further, the Defendants submitted that even after Meenachi Holding and Trading Sdn. Bhd. appealed to the Court of Appeal and the grounds of judgment was made available on the 12 October 2015, the Plaintiff is also out of time according to the Public Authorities Protection Act 1948 [Act 198] which provides that the Plaintiff should file the action in 36 month’s time from the date the cause of action arose. The Defendants went on further by submitting that according to subsection 6(1) of the Limitation Act 1953 [Act 254] too, it is clear that the Plaintiff’s claim for a declaration on negligence on the Defendants has been estopped by virtue of the provision. The Plaintiff’s Submissions The Plaintiff pleaded that, the Defendants are estopped from relying on the Limitation Act 1953 and/or Public Authorities Protection Act 1948 because the act of negligence was only discovered at the time after the Federal Court dismissed the Plaintiff’s leave to appeal for the aforesaid proceedings. The cause of action only accrued from March 2016 when the Federal Court dismissed the Plaintiff’s motion for leave to appeal. The present suit was filed in March 2019. 6 | P a g e The Plaintiff further submitted that this suit is not a plain and obviously unsustainable case. The cause of action herein arose from the Court of Appeal judgment date 12.10.2015 when the Court of Appeal held that the Defendants had breached its statutory duty under section 204A to 204H of the National Land Code 1965 by deciding the ownership of the subject land, namely H.S (M) 960/96 Lot No. Pt 57000 bandar Kulim. The findings of facts had been made in the Court of Appeal as follows: “[66] It would appear from the above provision that land surrendered under the provisions of section 204A-204H must be re-alienated to the proprietor under whose name the land was registered in “Proprietor” as defined under section 5 of the NLC means “any person or body for the time being registered as the proprietor of any alienated land. [67] By virtue of the aforesaid definition, proprietor in the present case would mean the Plaintiff (“Meenachi”) and Cayman (“the 2nd Defendant”). In this regard we agreed with the submission of learned counsel for the Plaintiff, that the above legal position is consistent with s186 of the NLC which stipulates that the title as derived from amalgamation and from subdivision should at all times be prepared in the names of the persons or body last registered as proprietor in the subsisting registered documents. ……. [77] We also agreed with the Plaintiff that based on s186 and s204B of the NLC, the State Authority in exercising its power under s204E only has discretion to either approve or reject the application for surrender and re-alienation made in Form 12D. [78] Before approving the application, the State Authority may require the proprietor to amend the application of the plans showing the lot or lots to be surrendered and the precomputation plan showing, inter alia, the details of the portion and the units to be re-alienated (s.204E(2) read together with s.204D(1)(c) of the NLC) [79] Although s.204E(3) provides that the State Authority shall, upon approving the application, determine the matters set out in s.79(2) of the NLC 7 | P a g e in respect of each pattern or unit to be re-alienated as if the land comprised therein had already become State land, the subsection also stipulates that if the original title is a freehold land, the re-alienated land shall also be freehold and if it is a leasehold, the period for which the land is re-alienated shall not be less than the remainder of the lease for which the land was held the original lease. [80] It can be seen from the above that under s.204E of the NLC these are the only matters which the State Authority may take into consideration when exercising its discretion whether to approve or reject an application for surrender an re-alienation made under Form 12D. [81] It would appear from the reading of ss.204A to 204H of the NLC that in a “surrender and re-alienation” exercise under those sections the State Authority is not vested with a discretion to decide on the ownership of the land. Such a power so vested, would be contrary to the provisions of s. 204B and s.186of the NLC for the reasons stated earlier”. It is due to that circumstances and arising from this Court of Appeal judgment, the Plaintiff filed the present action against the Defendants on tort of negligence. Before I go further on the issue of limitation and whether the present suit is time barred as pleaded by the Defendants in the Striking Out Application, I am reminded that it is trite law that the principles for striking pleadings pursuant to Order 18 rule 19 of the RoC are well settled. The Court should only strike out the pleading when the pleading is plain and obviously unsustainable. It is only in a plain and obvious case that recourse should be had to the summary process under this rule. Law Relating To Striking Out The Defendants had relied on the following provisions in the RoC 2012 as the basis for the instant application:

Striking out pleadings and endorsements (O. 18, r. 19)

(1) 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 8 | P a g e the action, or anything in any pleading or in the endorsement, on the ground that— …

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.”; and

Inherent powers of the Court (O. 92, r. 4)

For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”. The guiding principles upon which the Court exercises its power under any of the four limbs of O.18 r.19(1) under the former Rules of the High Court 1980 and the current RoC 2012 are well settled; “it is only in plain and obvious cases that a defendant may have recourse to the summary process under this rule. This summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable (see Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd. [1993] 4 CLJ 7).” More recently, the Federal Court in Tan Wei Hong & Ors v. Malaysia Airlines Bhd & Other Appeals [2018] 9 CLJ 425 had stated the fundamental principles applicable in a striking out of pleadings at pp 435 - 436 in these words: “The principle for striking out of pleadings pursuant to O. 18 r. 19 of the ROC is well settled. It is applicable only in a plain and obvious case or where a claim is, on the face of it, obviously unsustainable (see: Bandar Builder Sdn 9 | P a g e Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 SC; Hubbuck & Sons Ltd v. Wilkinson, Heywood & Clard Ltd [1899] 1 QB 86; Attorney General of the Duchy of Lancaster v. London and North Western Railway Company [1892] 3 Ch 274). The tests for striking out application under O. 18 r. 19 of the ROC, as adopted by the Supreme Court in Bandar Builder (supra) are, inter alia, as follows:

it is only in plain and obvious cases that recourse should be had to the summary process under the rule;

this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable;

it cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence;

if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r.3 of the ROC; and

the court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable. The basic test for striking out as laid down by the Supreme Court in Bandar Builder (supra) is that “the claim on the face of it must be ‘obviously unsustainable’. The stress is not only on the word ‘unsustainable’ but also on the word ‘obviously’, ie, the degree of unsustainability must appear on the face of the statement of claim without having to go into a lengthy and mature consideration in detail. If one has to go into a lengthy detailed argument and mature consideration of the issues of law and/or fact, then the matter is not appropriate to be struck out summarily. It must be determined at the trial.” I bear in mind too the caution issued in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1, where the Federal Court held: 10 | P a g e “(3) ... However, whether the said evidence could or could not be obtained with reasonable diligence, whether it would have an important influence on the result of the trial, and whether it was presumably to be believed, were purely questions of facts which could only be determined at full trial where witnesses could be called to testify but not by way of affidavits evidence at the stage of summary proceedings of striking out under O 18 r 19 of the ROC as applied for by the appellant ...”. Law Relating to Time Barred It is the Defendants’ case that the Plaintiff’s claim is filed out of the limitation period. The issue of limitation under section 2 of the Public Authorities Protection Act 1948 was raised by the Defendants in his submission. “Section 2. Protection of persons acting in execution of statutory or other public duty Where, after the coming into force of this Act, any suit, action, prosecution or other proceeding is commenced in the Federation against any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall have effect:

the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty-six months next after the act, neglect or default complained of or, in the case of a continuance of injury or damage, within thirty-six months next after the ceasing thereof;

whenever in any such suit or action a judgment is obtained by the defendant, it shall carry costs to be taxed as between solicitor and client;

where the proceeding is a suit or action for damages, tender of amends before the suit or action was commenced may be pleaded in lieu of or in addition to any other plea; 11 | P a g e

if the suit or action is commenced after the tender or offer in writing, or is proceeded with after payment into court of any money in satisfaction of the plaintiff’s claim, and the plaintiff does not recover more than the sum tendered, offered or paid, he shall not recover any costs incurred after the tender, offer or payment, and the defendant shall be entitled to costs to be taxed as between solicitor and client as from the time of the tender, offer or payment, and the costs up to the time of such tender, offer or payment shall be in the discretion of the court: Provided that this provision shall not affect costs on any injunction in the suit or action.” The Defendant also relied on subsection 6(1) of the Limitation Act 1953. “Section

Limitation of actions of contract and tort and certain other actions

Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say—

actions founded on a contract or on tort;

actions to enforce a recognisance;

actions to enforce an award;

actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture.” Findings of the Court Having mentioned the principles as stated above, I am now turn to the main argument in support of the Striking Out Application by the Defendant that is the Plaintiff’s claim is filed out of the limitation period. As I have stated earlier on, it is the Defendants’ argument, as mentioned in their Affidavit In Support of the Striking Out Application, that section 2 of the Public 12 | P a g e Authorities Protection Act 1948 applies on the Plaintiff where the suit was not brought to court within thirty-six months after the act, neglect or default complained. The Defendant alleged that the cause of action accrued when the Plaintiff ( who was the 1st Defendants in the previous suit) had been in the knowledge of the action taken by Meenachi Holdings on 5 January 2008 when Meenachi filed a Civil Suit No. 22-02-2008 against the Plaintiff and the 1st Defendant herein seeking declaration, inter alia, that the transfer of the subject land to the Plaintiff by Cayman Development is null and void. However, the Plaintiff did not take action against the Defendants on the issue of negligence, not until 5 March 2019 when the SoC was filed. By the calculation of number of years, there was a gap of almost eleven (11) years between the accrual of the cause of action in tort and the filing of the suit. Thus, the Defendants submitted that the Plaintiff’s action for negligence had been time-barred. It is noted that the Plaintiff submitted in the paraghraph 6 of the Plaintiff’s Affidavit In Reply (1) that the defence of limitation cannot be used by the Defendants since it is not pleaded in the defence, in which the Defendants are not allowed to raise on that issue. However, upon perusal of the Striking Out Application, the Court found that the Defendants had highlighted in paragraph 11 of their Affidavit In Support of the Striking Out Application that, even by virtue of section 6(1) of the Limitation Act 1953, it is clear that the Plaintiff’s claim in this case, that is for the declaration of negligence on the Defendants, has been estopped by the limitation law. The Plaintiff then argued that the cause of action is premised on tort of negligence arising the Court of Appeal’s judgment dated 12.10.2015 in Civil Appeal No. K-01-699-11/2011 and not on the date the first action was taken when the Plaintiff was made as the 1st Defendant in Civil Suit No. 22-02-2008 on 5 January

In the Statement of Claim the Plaintiff also pleaded that the Defendants are estopped from relying Limitation Act 1953 and/or Public Authorities Protection Act 1948 because the negligence was only discovered after the Federal Court dismissed the Plaintiff’s leave to appeal for the aforesaid proceeding. Having read the chronology of events and the submissions by both parties, I could see that there are three (3) dates being highlighted to this Court in order to 13 | P a g e determine the calculation of time when the cause of action commenced. The relevant dates are – i. 5 January 2008, when Meenachi filed a Civil Suit No. 22-02-2008 against the Plaintiff who was the 1st Defendant in that suit; ii. 12 October 2015, when the ground of judgment was made available by the Court of Appeal in suit No. K-01-699-11/2011 (as stated in the paragraph 3 of the Plaintiff’s Affidavit In Reply (1); and iii. March 2016, when the Federal Court dismissed the Plaintiff’s motion for leave to appeal (as stated in paragraph 15 of the Plaintiff’s SoC) The present suit was filed in March 2019. To illustrate the above, we refer to the Court of Appeal case of Ambank (M) Bhd v Kamariyah bt Hamdan & Anor [2013] 5 MLJ 448, per Jeffrey Tan JCA (as he then was), at paragraph 22 where His Lordship stated as follows: “[22] Likewise, in the instant case, the appellant on 1 September 1997 could not have discovered whatever negligence on the part of the respondent by the exercise of any reasonable diligence. Indeed, there was no reason for the appellant to suspect negligence, as effectively the respondents had advised the appellant that the charge was a valid charge. And the release of the loan only evinced that the appellant on 1 September 1997 could not have discovered that something could be amiss about the charge. The earliest that it could be said that the appellant should have suspected possible negligence in the preparation of the charge was when the appellant was served with the writ of summons dated 24 May 2000. Only then could it be said that the appellant should have discovered that the charge was under challenge. On 28 October 2005, the appellant applied for leave to issue the said third party notice, which leave was granted on 2 January 2006. On 20 January 2006, the said third party notice was issued. Evidently, the said third party notice was issued within six years from the date when the material facts on which the third party notice was based ought to have been discovered by the appellant by the exercise of reasonable diligence.” In this present case, I am of the opinion that although the Plaintiff was all aware that there was a suit against the Plaintiff when Meenachi filed a Civil Suit No. 14 | P a g e 22-02-2008 on 5 January 2008, against the Plaintiff who was the 1st Defendant in that suit, that alone did not and could not have constituted actual discovery. At most, it was only an indicator that something that needed to be settled between few parties involved in the dispute. This is especially so when the Defendants in this Striking Out Application were together made as the co-Defendants in that suit. I observed that the actual discovery of the negligence was when the grounds of judgment made available by the Court of Appeal by 12 October 2015. I am of the view that it would not have been reasonable to contend that the accrual of the causes of action for negligence were to commence from the date when the Federal Court dismissed the Plaintiff’s motion for leave to appeal in March 2016. This is because the actual discovery of the act of negligence was when the disclosure already made known earlier to the parties from the said grounds of judgment. Therefore, the calculation of time when the cause of action should commence was from the 12 October 2015 and judging from that and following the provision under section 2 of the Public Authorities Protection Act 1948, the present suit should have been considered time barred since the thirty – six (36) months requirement has lapsed. However, I must not ignore the point raised by the Plaintiff on the issue of whether or not the Public Authorities Protection Act 1948 is applicable to the present suit. The Plaintiff submitted that the Defendants’ contention on the Act is misplaced by law. The Plaintiff cited the case of Ngo Ong Chung & Ors. V Pengarah Tanah dan Galian Perak Darul Ridzuan [2013] 10 MLJ 879 where Hamindar J (as he then was) said that – “[16] It would appear from an analysis of s.2(a) of the PAPA 1948 itself that protection is limited to ‘any act done in pursuance or execution or intended execution of any written law of any public duty or authority’ and that the ‘neglect or default’ must be ‘in the execution of any such written law, duty or authority’. In other words, not every act of a public authority is entitled to protection (see also Ban GuanHin Realty Sdn Bhd v Sunny Yap Chiok Sai & Ors [1989] 1 MLJ 131; Lee Hock Ning v Government of Malaysia [1972] 2 MLJ 12; Littlewood v George Wimpey & Co Ltd [1953] 2 15 | P a g e All ER 915 [1953] 1 QBD 383 at p 587; Bradford Corp v Myers [1916] 1 AC 242) [17] It might be argued that everything done by a public authority ought to be regarded as being done in execution of their powers under the statute. In this regard, Lord Buckmaster LC in the Bradford Corporation case clarified:”…it is not because the act out of which an action arises is within their power that a public authority enjoy the benefit of the statute. It is because the act is one which is either an act in direct execution of a statute, or in the discharge of a public duty, of the exercise of a public authority”. [18] More importantly, and this is especially relevant to the instant case, protection is only afforded if the authority acts within their power. In the Bradford Corporation case, Lord Atkinson referred to the judgment of Vaughan Williams LJ in Lyles v Southend-On-Sea Corporation [1905] 2 KIB when His Lordship said: “Now I do not think that it can have been the intention of the legislature that every act done by the corporation which was intra vires conferred by this order should be subject to the protection afforded by this Act……. [19] The position that obtains from the case law is that not every act of a public authority is entitled to protection. However, in order to get protection, an act must be first be intra vires or within the power of the public authority. In the instant action, however, the Defendant’s action in reducing the tenure of the lands was ultra vires the NLC, without jurisdiction and a nullity. Being ultra vires and void of jurisdiction, it was invalid from its very inception…. [20] ……… [21] For the aforesaid reasons, s2(a) of the PAPA 1948 is not applicable in the instant case. As no other limitation period was suggested by the parties, the contention of the defendant with regard to the action being time barred is without merit and cannot succeed.” This has been similarly highlighted in this present case where the Court of Appeal in the Civil Appeal No. K-01-699-11/201, stated in its grounds of judgment that – 16 | P a g e [81] It would appear from the reading of s204A-204H of the NLC that in a ‘surrender and re-alienation’ exercise under those sections the state authority is not vested with a discretion to decide on the ownership of the land. Such a power so vested, would be contrary to the provisions of ss204B and 186 of the NLC for the reasons stated earlier.” ………….. [94] Instrument in s340 (2)(b) means “an instrument of dealing” as set out in s 292 of the NLC and includes, inter alia, a memorandum of transfer. (s292(1)(a) of the NLC). [95] As seen earlier, the issuance of the issue document of title in the sole name of Cayman was clearly in breach of s 204B of the NLC. In view of that the second defendant had acted ultra vires his powers when issuing the title in Cayman’s name only. (Section 340(2)(c) - see the United Malayan Banking Corporation Bhd. V Syarikat Perumahan Luas Sdn. Bhd.). Upon reading the abovementioned authorities and by relating the principles to this present case, it is my view that since the 1st Defendant’s act is found ultra vires of NLC by the Court of Appeal, the act of the 1st Defendant cannot be protected by the Protection Public Authorities Protection Act 1948. Hence, it is therefore irrelevant to consider that the provision under section 2 of the Public Authorities Protection Act 1948 is applicable on the Plaintiff’s suit. It is to be noted that there is another provision under subsection 6(1) of the Limitation Act 1953 used by the Defendants to raise the issue of time barred. Taking into account of the Defendants’ contention that the calculation of time runs from the date of 5 January 2008 when Meenachi filed a Civil Suit No. 22-02-2008 against the Plaintiff who was the 1st Defendant in that suit, I believe the contention is no longer has merit. The actual discovery of the negligence was when the grounds of judgment made available by the Court of Appeal by 12 October 2015. With that findings, the calculation of time should have started from 12 October 2015 and runs till the day the Plaintiff filed in the SoC in March 2019 in which it is within limitation period stipulated under the Limitation Act 1953. 17 | P a g e Now that I have discussed and decided on the issue of limitation, the next thing to see is whether the Plaintiff’s case is a plain and obviously unsustainable. As noted earlier, the principle in the striking out is that the court should only do that when it believes that the pleading is plain and obviously unsustainable. The Plaintiff contended that the present suit is not obviously unsustainable because of the fact that the cause of action arose from the Court of Appeal judgment where it held that the Defendants had breached its statutory duty under section 204A to 204H of the National Land Code by deciding the ownership of the subject land, namely H.S (M)960/96 Lot No. Pt.5700 Bandar Kulim. It was also highlighted by the Plaintiff that the Defendants in their Defence admitted that they have omitted to register the name of the other owner, Meenachi into the subject land’s issue documents of title. At this juncture, I must also highlight here that in the Affidavit In Opposition to the Plaintiff’s application under Order 14A and/or Order 33 Rules of Court 2012 (Enclosure 12) (in which it has been used for this Striking Out Application through Notice of Intention to Use Affidavit), the Defendants stated that there are “triable issues” in the main suit, hence the Plaintiff’s application under Order 14A should not be allowed. The principles of Order 18 r.19 of RoC are well known and has been succinctly explained in many cases relating to the Striking Out Application as I have mentioned above. The cases guide the Court on how to exercise its discretion when faced with cases of this nature. Both learned Counsels for the Plaintiff and the Defendants had highlighted to the Court the relevant cases applicable and I have noted the principles enunciated in the cases highlighted. From a careful and objective perusal of the pleadings, the written submissions as well as after hearing and considering the parties submissions, I am of the view that the Plaintiff’s Writ and SoC against the Defendant disclosed a reasonable cause of action and that there was a triable issue. The SoC in all circumstances of the case could not be said as scandalous, frivolous or vexatious or an abuse of the process of the court. 18 | P a g e At this point, the Court is not concerned with the prospect of success or failure of the Plaintiff’s claim. This is a matter for the Court to decide on the evidence adduced later during the trial. Having said that I hereby dismissed the Defendant’s application with cost of RM2000/=. Dated this 18th of November 2020 ……………………………………… (MAHAZAN BINTI MAT TAIB) Judicial Commissioner High Court, Alor Setar. For the Plaintiff: Cik Ang Jun Jia (Messrs Kevin & Co.) For the Defendants: Puan Nurulashikin binti Mahadzir (Legal Officer, Kedah State)