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Syariah Court Civil Procedure Sulh Sabah Rules 2023

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Enacted: 2023
Sections: 19

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SYARIAH COURT CIVIL PROCEDURE (SULH) (SABAH) RULES 2023

Opening note

Preamble

IN exercise of the powers conferred by paragraph 247(1)(c) of the Syariah Court Civil Procedure Enactment 2004 [No.10 of 2004], the Syariah Court Rules Committee makes the following rules: Citation and commencement

Section 1

(1)

These rules may be cited as the Syariah Court Civil Procedure (Sulh) (Sabah) Rules 2023.

(2)

These Rules shall be deemed to have come into operation on 18 October 2023.

Section 2

Application and non-application

(1)

These Rules shall apply to the cases specified in the First Schedule.

(2)

These Rules shall not apply to cases specified in the Second Schedule.

Interpretation

Section 3

In these Rules, unless the context otherwise requires —

“Majlis Sulh” means a mediation session between parties chaired by a Sulh Officer to resolve a case through sulh at a location determined by the Court;

“remote communication technology” has the meaning assigned to it under the Syariah Court Civil

Procedure (The Conduct of Syariah Court through Remote Communication Technology) Rules 2022 [No.8 of 2022];

“sulh” means negotiation, agreement and settlement of cases between the parties in a Majlis Sulh;

and

“Sulh Officer” means any Syariah Officer appointed by the Chief Syar’ie Judge to chair the

Majlis Sulh.

Section 4

Establishment of Majlis Sulh

There shall be a Majlis Sulh established by the Court to conduct sulh between the parties in dispute which shall be chaired by Sulh Officer.

Section 5

Commencement of sulh

Upon receiving a summon or an application for any cause of action under the First Schedule, the

Court shall —

(a)

as soon as practicable, register the case and fix a date for the parties to attend sulh; and

(b)

serve a notice of attendance by using Form KS 1 of the Third Schedule.

Section 6

Duration of sulh

The Sulh Officer shall resolve the sulh between parties within a period of ninety days from the date of registration of sulh.

Section 7

Extension of time

Any party may apply to the Court to extend the duration of sulh upon the expiry of ninety days.

Section 8

Procedure of sulh

(1)

Sulh shall be conducted in a Majlis Sulh attended by the parties to the cause of action.

(2)

Each party shall attend the Majlis Sulh personally without any Syar’ie Lawyer or any other parties unless with the consent of the Sulh Officer.

(3)

If any of the parties fails to attend the Majlis Sulh, the Sulh Officer shall refer the matter to the Court by making a report in Form KS 4 of the Third Schedule.

(4)

For the purposes of these Rules, Majlis Sulh may be held through a remote communication technology.

Section 9

Conduct of Majlis Sulh

(1)

A Majlis Sulh may be conducted in accordance with the following procedures:

(a)

opening statement by a Sulh Officer regarding —

(i)

aims and objectives of sulh;

(ii)

procedures and rules of sulh;

(iii)

confidentiality of communication and matters discussed in a Majlis Sulh; and

(iv)

a Sulh Officer shall not be called in any Court proceedings in respect of a case which is the subject matter of the sulh;

(b)

preliminary submission by the parties in dispute by submitting —

(i)

matters in dispute;

(ii)

effect and consequences of the dispute; and

(iii)

recommendation of settlement;

(c)

joint discussion between the parties in dispute and a Sulh Officer to reach settlement;

(d)

private session (caucus) where the Sulh Officer meet with the parties separately if the joint discussion in paragraph 9(1)(c) cannot be held or if he thinks it is necessary; and

(e)

further joint discussion where the Sulh Officer hold a joint discussion between the parties to reach an amicable and voluntary settlement.

(2)

The processes in paragraphs 9(1)(c), (d) and (e) may be repeated if the sulh is still within the period of ninety days or the Sulh Officer is confident that amicable settlement can be reached.

(3)

For the purpose of subrule (2) the Court shall issue a notice of adjournment of Majlis Sulh in Form

KS 2 of the Third Schedule.

(4)

During the conduct of Majlis Sulh, the Sulh Officer shall determine —

(a)

issues and matters in dispute;

(b)

status of the parties in dispute;

(c)

interests of the parties;

(d)

options of settlement; and

(e)

conduct of sulh in accordance with Islamic Law and any relevant written laws.

Section 10

Sulh agreement

(1)

If the parties voluntarily agree to resolve all or any part of the claims, the Sulh Officer shall prepare a sulh agreement by using Form KS 3 of the Third Schedule, containing the agreed matters which shall be signed by the parties, before the Sulh Officer.

(2)

Where the sulh agreement has been duly signed by the parties, the Sulh Officer shall submit the sulh agreement to the Court together with a report in Form KS 4 of the Third Schedule.

(3)

The Sulh Officer shall ensure that the sulh agreement shall not contain any term contrary to Islamic

Law and any relevant written laws.

Section 11

Withdrawal of claim in dispute

If during the Majlis Sulh is carried out, the plaintiff agrees not to pursue with the claim in the dispute, the plaintiff may withdraw his claim by giving a notice to the Sulh Officer and the Sulh Officer shall make a report of the withdrawal to the Court by using Form KS 4 of the Third Schedule.

Section 12

Fail to resolve claim in dispute

(1)

Where the parties failed to resolve all or any part of the claim in dispute, the Sulh Officer shall refer the matter to Court by making a report in Form KS 4 of the Third Schedule.

(2)

Notwithstanding subrule (1), the Sulh Officer may, subject to rules 6 and 7, if the parties agree and if he is in the opinion that there is a possibility for the parties to resolve the claims amicably, continue with the sulh in respect of any part of the claim which is still in dispute.

Section 13

Consent judgement

The Court shall record the sulh agreement as a consent judgment —

(a)

with the appearance of the parties, if it thinks necessary; or

(b)

without the appearance of the parties, the case may be.

Section 14

Termination of Majlis Sulh

A Majlis Sulh shall be terminated upon —

(a)

the withdrawal of Sulh Officer from the Majlis Sulh with the consent of the Chief Syar’ie

Judge;

(b)

withdrawal of any party from the Majlis Sulh;

(c)

the absence of any party in the Majlis Sulh;

(d)

death or incapacity of any party; or

(e)

the opinion of the Sulh Officer, subject to the approval of the Chief Syar’ie Judge, that there are unreasonable circumstances to proceed with the Majlis Sulh.

Section 15

Disclosure of communication

(1)

No person shall disclose any communication in Majlis Sulh.

(2)

Notwithstanding subrule (1), communication in Majlis Sulh may be disclosed, if —

(a)

the disclosure is made with the consent of parties;

(b)

the disclosure is made with the consent of the Sulh Officer conducting the Majlis Sulh;

(c)

such disclosure is required under these Rules or for the purpose of any mal, civil or criminal proceedings under any written laws; or

(d)

such disclosure is required under any other written laws for the purpose of the execution or enforcement of a sulh agreement.

Section 16

Revocation and savings

(1)

The Syariah Court Civil Procedure (Sulh) Rules 2010 is revoked.

(2)

Any declaration, order, notification, notice, form, letter of authorization or appointment issued or made under or by virtue of the previous Rules shall, on the coming into operation of these Rules, continue in force, in so far as they are not inconsistent with these Rules, until revoked or replaced by a declaration, order, notification, notice, form, letter of authorization or appointment issued or made under these Rules.

(3)

All proceedings which were instituted before these Rules came into force shall continue until the completion of such proceedings.

FIRST SCHEDULE

[subrule 2(1)]

APPLICATION

Cases can be referred to the Majlis Sulh are as follows:

(a)

betrothal damages;

(b)

muta’ah;

(c)

jointly acquired property;

(d)

maintenance of wife;

(e)

maintenance of disabled party;

(f)

security for maintenance;

(g)

maintenance of ‘iddah;

(h)

variation of a maintenance order;

(i)

arrears of maintenance;

(j)

maintenance of child;

(k)

hadhanah;

(l)

variation of order for maintenance of child;

(m)

variation of order for hadhanah;

(n)

marital damages;

(o)

right to accommodation;

(p)

order to resume cohabitation;

(q)

order for a wife to obey her husband;

(r)

dowry; or

(s)

any such case instructed by the Judge which in his opinion is necessary to be referred to a

Majlis Sulh.

SECOND SCHEDULE

[subrule 2(2)]

NON-APPLICATION

Cases which should not go through the process of sulh, including —

(a)

ex-parte cases;

(b)

cases where a mediation process was conducted under the Legal Aid Act 1971 [Act 26];

(c)

cases where a settlement agreement or consent entered between parties before a Syar’ie

Lawyer;

(d)

cases where the whereabout of the other party is unknown or cannot be traced by the plaintiff;

(e)

cases involving parties requiring a guardian ad litem under section 24 of the Syariah Court

Civil Procedure Enactment 2004; or

(f)

any cases where the Court is satisfied that there are reasonable circumstances which cause the reference to the Majlis Sulh to be impractical.

THIRD SCHEDULE

[paragraph 5(b)]

FORM KS 1

CASE MAL NO. : ....................................................

: .................................................

ADDRESS : .................................................

: .................................................

ADDRESS : .................................................

NOTICE OF ATTENDANCE OF MAJLIS SULH

TAKE NOTICE THAT the Plaintiff has filed a case………..................................(type of claim/

application) ...................................... .........................to this Court.

YOU ARE HEREBY ORDERED to attend personally before the Sulh Officer in this Court on:

Date

.............................................

Time

.............................................

Venue

.............................................

YOU ARE REQUIRED TO ATTEND in the Majlis Sulh personally without the presence of Syar’ie

Lawyer or your representative.

YOU ARE HEREBY INFORMED that your absence will cause this case to be referred to the Court for hearing.

THIS NOTICE ISSUED under the signature and seal of this Court on …… day of ….........………20………

Seal

......…………………………………

Judge/Registrar

Syariah Subordinate/High Court

[subrule 9(3)]

FORM KS 2

CASE MAL NO. : ...................................................

CASE SULH NO. : ...................................................

: .................................................

NOTICE OF ADJOURNMENT OF MAJLIS SULH

PLEASE TAKE NOTE that the above case which is fixed on …….................. at................................... a.m./

p.m. is adjourned to ……………. ...at ........ ............a.m./p.m.

THIS NOTICE ISSUED under the signature and seal of the Court on ............. ..........day of ……….. 20………

Seal

...…………………………………

Judge/Registrar

Syariah Subordinate/High Court/

Sulh Officer

[subrule 10(1)]

FORM KS 3

CASE MAL NO. : ...................................................

: .................................................

Before

………….......................................................

Sulh Officer

At Syariah Subordinate/High Court

…………...............………….........................

On ……………….…………..........................

SULH AGREEMENT

THIS SULH AGREEMENT is made on ................................... between …………..............

addressed at ………….............................. (hereinafter known as “the Plaintiff) and

…………............... addressed at ........................................... (hereinafter known as

“the Defendant”).

MAJLIS SULH was held between the Plaintiff and the Defendant on ………………...…

at……………………a.m./p.m. at .........................................

After negotiation has been held in the Majlis Sulh, both parties Plaintiff and Defendant voluntarily agreed as follows:

Section 1

..............…………..............................…………............................................

Section 2

..............…………..............................…………............................................

Section 3

...............…………..............................…………...........................................

AS A WITNESS TO THIS SULH AGREEMENT, both parties verified that they have read and understand the content in this SULH AGREEMENT and both parties hereby fix their signature respectively on the date as stated below.

Signed by the Plaintiff

…………..............................…

Name

NRIC No. :

Date

Signed by the Defendant

………….................................

Name

NRIC No. :

Date

Before

...............................................

Sulh Officer

Name :

Court :

Date

[subrules 8(3) and 10(2), rule 11 and subrule 12(1)]

FORM KS 4

CASE MAL NO.

: ....................................................

: .................................................

Before

………….......................................................

Sulh Officer

At Syariah Subordinate/High Court

…………...............………….........................

On ……………….…………..........................

SULH REPORT

THIS SULH REPORT is between …………..................................(NRIC No.: …………...

......................................) (hereinafter known as “the Plaintiff”) and ……............................

..........................................(NRIC No. ............................. ) (hereinafter known as “the

Defendant”).

THE MAJLIS SULH was held between the Plaintiff and the Defendant at …………..................

on ……….........day of...............................20.......at ............... a.m./p.m.

AND IT IS HEREBY STATED THAT the sulh is —

(Please tick (/) where is applicable)

(a)

withdrawn by the Plaintiff;

(attach notice of withdrawal and state the reason)

.........................................................................................................

(b)

fully succeed;

(attach Form KS 3 and state the reason)

.........................................................................................................

(c)

partially succeed;

(attach Form KS 3 and state the claim that is still in dispute)

.........................................................................................................

(d)

failed;

(state the reason)

.........................................................................................................

(e)

failed due to the non attendance of the parties; or

(state the reason and the date of non attendance of the parties)

.........................................................................................................

(f)

others.

(state the reason)

.........................................................................................................

Thank you.

Yours Faithfully,

............................................................................

Sulh Officer

Syariah Subordinate/High Court

Made 18 October 2023

TUAN HAJI SAMAL BIN MUNJI

Chief Syari’ie Judge

Department of Syariah Judiciary Sabah

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