What are Pleadings under Civil Procedure Law in Malaysia

Pleadings

Definition: written statements of facts exchanged between parties in a civil proceeding

O 18 + O 19 of the ROC: service of pleadings, set-off, counterclaim (O 15), default of service and close of pleadings

General rule: Parties are bound by their pleadings

The Chartered Bank v Yong Chan [Federal Court]

In this case, the respondent had issued a cheque which was dishonoured. He brought a claim against the bank for libel. In the pleadings, his claim was based on libel. The trial judge held that the action based on libel was barred by the limitation period. However, the judge gave damages of $1,000 for breach of contract.

On appeal to the Federal Court, it was held that the learned judge was clearly wrong when he concluded that the pleadings included a claim for breach of contract. Since he had decided on an issue not raised on the pleadings, the judgment was set aside and a new trial was ordered.

Exceptions:

1. Illegality

i) Wai Hin Tin Mining Co Ltd v Lee Chow Beng

The plaintiffs claimed repayment of an interest free loan of $2,500 lent by the plaintiffs to the defendant for the defendant to purchase shares in the plaintiff company. The defendant did not object to the legality of the loan. The Court held that the plaintiffs’ claim was based on an illegality as the loan transaction contravened the companies’ articles of association and the Companies Ordinance of 1940. Therefore, the claim was dismissed.

ii) North Western Salt Co Ltd v Electrolytic Alkali Co Ltd

House of Lords laid down 4 situations where the Court will not enforce a claim based on illegality even if it was not pleaded:

a         1) Ex facie illegal (it is obvious on the face of it

      2) Evidence of extraneous circumstances tending to show that it was an illegal object
3) Unpleaded facts which taken by themselves show an illegal object
4) Where the Court have all the relevant facts and it can be seen clearly that the contract had an illegal object

2. Lack of jurisdiction

Joseph Crosfield & Sons Ltd v Manchester Ship Canal Co

In this case, certain statutes provided that certain disputes are to be heard by way of arbitration. An action was brought by the plaintiff to the Court in contravention with the statutes. Although the issue of jurisdiction was not raised in the pleadings, the Court will allow an objection of lack of jurisdiction to be raised during the trial. The claim was dismissed.

3. Point not pleaded but presented and developed without objection

i) Kaliammal v Manickam

The principle is that if a defendant wishes to rely on a statute of limitation, it must be pleaded. If an action to recover a debt is statute-barred, the plaintiff will not be able to claim for recovery of the debt provided the defendant has pleaded the limitation period. However, the six years period is subject to s. 26(2) of the Limitation Act which provides for a fresh accrual of action if the defendant acknowledges the claim. The limitation period will then set in later.

ii) KEP Mohamed Ali v KEP Mohamed Ismail [Federal Court] – the acknowledgment to the debt under s.26 of the Limitation Act applies even if not pleaded.

4. Wisma Punca Emas exception

Wisma Punca Emas Sdn Bhd v Dr Donal R O’Holohan [Supreme Court]

In this case, the appellant contended that the main issue was a question of negligence but the trial judge awarded the claim of nuisance, i.e. physical damage to adjoining land and awarded both damages accordingly.

The respondent contended that nuisance was not pleaded in the statement of claim. Furthermore, there was a great difference between negligence and nuisance. The Court held that the difference between negligence and nuisance is not important as the facts also showed nuisance. It should be noted however that the decision sets a dangerous precedent as a plaintiff may get away with statement of claims that are vague and lacks clarity and precision.