Alasan Penghakiman No: S4-22-669-2005

Alasan Penghakiman No: S4-22-669-2005 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN SIVIL) GUAMAN NO : S4-22-669-2005 ANTARA MARIA TUNKU SABRI … PLAINTIF DAN DATO’ WAN JOHARI WAN HUSSIN … DEFENDAN ALASAN PENGHAKIMAN OLEH YANG ARIF PESURUHJAYA KEHAKIMAN DATO’ TENGKU MAIMUN BINTI TUAN MAT Alasan Penghakiman No: S4-22-669-2005 2 Encl 22 is an appeal by the plaintiff against the decision of the learned Deputy Registrar in allowing the defendant’s application to strike out the plaintiff’s claim under O18 r 19(1) (a), (b), (c) or (d) of the Rules of the High Court 1980. The plaintiff’s claim against the defendant filed in court on 3.8.2004 is for the sum of RM5,500,000.00 pursuant to a settlement agreement dated 10.3.2004 (the settlement agreement) which was entered into between the plaintiff and the defendant for the purposes of settling the breach of promise by the defendant to marry the plaintiff. On 9.9.2004 the plaintiff filed an application for summary judgment under O 14 for the amount of RM5,500,000.00 which application has not been heard. Vide the statement of defence dated 9.9.2004 the defendant pleaded inter alia that:- “5. Defendan juga menafikan pada masa yang material, Defendan berhutang apa-apa jumlah wang dengan Plaintif dan meletakkan beban bukti yang kukuh ke atas Plaintif untuk membuktikannya kepada Mahkamah yang mulia ini. Alasan Penghakiman No: S4-22-669-2005 3 7. Secara alternatif, Defendan menyatakan bahawa Perjanjian tersebut adalah tidak sah di sisi undang-undang dan/atau terbatal dan/atau tidak boleh diterimapakai di dalam Mahkamah yang Mulia ini kerana terdapat unsur-unsur paksaan dan ugutan daripada Plaintif. 9. Defendan dengan ini menyatakan bahawa tuntutan Plaintif adalah suatu penyalahgunaan proses Mahkamah kerana ianya adalah suatu yang remeh dan/atau membuang masa Mahkamah yang mulia ini.” On 11.5.2006 the defendant filed an application under O 18 r 19(1) (a) (b) (c) or (d) to strike out the plaintiff’s claim on the ground that the matter is within the exclusive jurisdiction of the Syariah Court. The application was allowed by the learned Deputy Registrar, hence the appeal. In opposing the O 18 r 19 application the plaintiff raised the following issues:- 1. the lack of jurisdiction of the civil court was not pleaded by the defendant; 2. there was inordinate and unexplained delay in making the application; Alasan Penghakiman No: S4-22-669-2005 4 3. the plaintiff’s claim is based on a breach of civil contract and has no relevance to the syariah law. On the first issue, learned counsel for the plaintiff in his written submission relied on the case of Lian Ann Lorry Transport & Forwarding Sdn Bhd v Govindasamy [1982] 2 MLJ 232 wherein at page 236 Salleh Abas F.J said:- “Before we conclude this judgment we must deal with the submission of counsel for the appellants on the second ground of appeal. It was submitted to us that the learned trial judge erred in law in failing to hold that the question as to whether the respondent was an employee within the meaning of the Act ought to be decided by the Social Security Appellate Board and not by a Civil Court. From the review of the records it is clear that the issue of the Civil Court’s lack of jurisdiction was never pleaded and that it was raised for the first time only at the last stage of the trial. No application was made by the appellants to amend the defence, nor did they take any action to have the hearing adjourned so that the question on employee could be referred to the Board for its decision. Thus we are of the view that the learned trial judge was right in not taking counsel’s submission on this issue into consideration as it was made without a basis in that it was not supported by their own pleadings.” Alasan Penghakiman No: S4-22-669-2005 5 Learned counsel for the plaintiff argued that on this ground alone, the application to strike out should be dismissed with costs. It is my view that the defendant’s failure to plead lack of jurisdiction does not render the O 18 r 19 application liable to be dismissed. This is unlike the case of Lian Ann Lorry Transport supra, where the issue was taken up during submission at the trial stage thereby giving rise to an element of surprise to the opponent. The plaintiff had also argued that since the defendant had not filed a conditional appearance, the application under O 18 r 19 is defective and ought to be dismissed. I hold that the filing of unconditional appearance by the defendant does not preclude the defendant from filing an application under O 18 r 19, as conditional appearance is necessary for the filing of an application to set aside the writ or service of the writ under O 12 r 7, which is not the case here. As regards the second issue, the learned counsel for the plaintiff contended that an application to strike out a pleading should be made promptly and as a rule before the close of pleadings. In support thereof counsel cited inter alia the case of Thiruchelvasegaram Alasan Penghakiman No: S4-22-669-2005 6 Manickavasegar v Mahadevi Nadchatiram [2001] 3 CLJ 743 where it was held that the amendment to O 34 r 2 of the RHC would appear to indicate that all applications to strike out under this rule, must without exception, be made before the close of the pleadings. This is because the plaintiff shall, not later than 14 days after the close of the pleadings file a notice for the pre-trial case management. In the instant case, given the fact that the plaintiff has not caused to be issued from the Registry a notice requiring the parties to attend the pre-trial case management, I do not consider that there is inordinate delay by the defendant in applying to strike out the plaintiff’s claim. The third issue concerns the plaintiff’s claim. Learned counsel for the plaintiff contended that the plaintiff’s claim is founded on the breach of the settlement agreement dated 10.3.2004 and has nothing to do with betrothal or breach of promise to marry. The High Court, argued learned counsel, has the exclusive jurisdiction to hear the plaintiff’s claim for enforcing the said settlement agreement. There is no denial that the plaintiff’s claim is founded on the settlement agreement but there can also be no denial that the settlement agreement arose out of the defendant’s breach of promise to marry the Alasan Penghakiman No: S4-22-669-2005 7 plaintiff. Hence the plaintiff’s claim could not be totally detached from the defendant’s breach of promise to marry. Given the fact that both the plaintiff and the defendant are Muslims and the plaintiff, a married woman at the time the agreement was entered into, could the defendant be said to breach the promise when the plaintiff at the material time remains married and would be in no position to marry the defendant? Could the plaintiff be in breach herself? Clearly the main issue for determination should this matter proceed to trial is whether the settlement agreement could be enforced by the plaintiff given the circumstances and whether it would be against Islamic law in view of s 14(1) of the Islamic Law (Federal Territories) Act 1984 (Act 303) which provides:- “No woman shall, during the subsistence of her marriage to a man, be married to any other man.” S 46 of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505) provides:- “(1) A Syariah High Court shall have jurisdiction throughout the Federal Territories and shall be presided over by a Syariah Judge. Alasan Penghakiman No: S4-22-669-2005 8 (2) A Syariah High Court shall – (b) in its civil jurisdiction, hear and determine all actions and proceedings in which all the parties are Muslims and which relate to – (i) betrothal, marriage, ruju’, divorce, nullity of marriage (fasakh), nusyuz, or judicial separation (faraq) or other matters relating to the relationship between husband and wife;” S 15 of Act 303 provides:- “If any person has, either orally or in writing, and either personally or through an intermediary, entered into a betrothal in accordance with Hukum Syara’, and subsequently refuses without lawful reason to marry the other party, the other party being willing to marry, the party in default shall be liable to return the betrothal gifts, if any, or the value thereof and to pay whatever moneys have been expended in good faith by or for the other party in preparation for the marriage, and the same may be recovered by action in the Court.” To betroth is to promise to marry (see the Concise Oxford Dictionary Ninth Edition). Thus the plaintiff’s claim under the settlement agreement which arose from the defendant’s breach of Alasan Penghakiman No: S4-22-669-2005 9 promise to marry is intertwined with the issue of betrothal and betrothal is a matter within the jurisdiction of the Syariah Court. In respect of the Syariah Court of the Federal Territories, learned counsel for the plaintiff has submitted that it is not constitutionally constituted until and unless the Constitution is amended to include the Syariah Courts in Part IX of the Federal Constitution. For want of Syariah Courts being included in the Judiciary of the Federation, learned counsel further submitted that Act 303 and Act 505 stand null and void. In response, learned counsel for the defendant refers to the case of Mohamed Habibullah Mahmood v Faridah bt Dato Talib [1992] 2 MLJ 793 which states that the validity of a State law can only be questioned in a separate proceeding under Article 4(3) of the Federal Constitution. I totally agree that it is not open for the plaintiff to raise the issue of the validity of Acts 303 and 505 here. In Mohamed Habibullah Mahmood v Faridah bt Dato Talib, supra, Mohd Azmi SCJ said at page 809:- “With effect from 10 June 1988, the new exclusion cl (1A) was introduced by the Constitution (Amendment) Act 1988 which expressly excludes the jurisdiction of the High Court in Malaya and the High Court in Alasan Penghakiman No: S4-22-669-2005 10 Borneo in respect of any matter within the jurisdiction of the Syariah Court. By such exclusion, the intention of the new cl (1A) is clearly to confer exclusive jurisdiction to the Syariah Courts to adjudicate on any matter which has been lawfully vested by law within the jurisdiction of the Syariah Court. In short, any jurisdiction lawfully vested in the Syariah Court is now exclusively within the jurisdiction of that court. Whether the vesting of such jurisdiction is valid is of course another matter which can be challenged under art 4(3). Since s 45(3)(b) Administration of Muslim Law Enactment 1952 confers jurisdiction on the Kuala Lumpur Syariah Court to hear and determine all actions and proceedings which relate to marriage or divorce in which all the parties profess the Muslim religion, the High Court’s specific jurisdiction under s 24 of the Courts of Judicature Act 1964 on the subject matter of divorce and matrimonial causes and matters relating thereto are excluded by virtue of art 121 (1A). The principle of interpretation of statutes demands that a general provision cannot override a specific one, and as such the High Court cannot invoke its general civil jurisdiction under 23 to revive a specific jurisdiction under s 24 which has been excluded by the Constitution.” In Dato’ Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29 the appellants after filing their defence applied for an order that the statement of claim be struck Alasan Penghakiman No: S4-22-669-2005 11 off on the ground that the court has no jurisdiction because the dispute involved a question of the adat laws and the constitution of luak Jelebu. On appeal to the Federal Court, Raja Azlan Shah Ag L.P (as His Royal Highness then was) in allowing the appeal said at page 33:- “It is open to the courts in this country to refuse a remedy on forum non conveniens. This doctrine is that a court may decline to exercise jurisdiction on the ground that another body would be more appropriate.” Based on the foregoing and on the authority of Mohamed Habibullah, supra and Dato Menteri Othman Baginda, supra, the appeal by the plaintiff in encl 22 is dismissed with costs. (DATO’ TENGKU MAIMUN BINTI TUAN MAT) PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA BAHAGIAN SIVIL KUALA LUMPUR Dated 24th June 2007