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SUITABILITY & APPLICABILITY OF ORDER 14A

By:

Harneshpal Karamjit Singh (Co-Managing Partner) [harnesh@luibhullar.com]

Bryan Lui (Co-Managing Partner) [bryanlui@luibhullar.com]

Chandni Anantha Krishnan (Partner) [chandni@luibhullar.com]



INTRODUCTION

Order 14A of the Rules of Court 2012 covers the disposal of a case on point of law.

Order 14A rule 1(a) states as follows:

“The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that-

(a) such question is suitable for determination without the full trial of the action; and

(b) such determination will finally determine the entire cause or matter or any claim or issue therein.”


With such an attractive interlocutory summary procedure, it is worth to look at recent jurisprudence to ascertain how such a procedure can be utilized.


RECENT JURISPRUDENCE ON ORDER 14A

For the purposes of this Article, the focus will be limited to the two (2) recent Court of Appeal and High Court cases as follows:


(a) Yuda Water Sdn Bhd v State Government Of Sabah [2020] 1 LNS 832 (“Yuda Water”); and


(b) Su'ot Tebari v. Land Custody and Development Authority (LCDA) & Another Appeal [2020] 10 CLJ 807 (“LCDA”).


YUDA WATER

Yuda Water is a High Court matter involving the alleged premature termination of an Agreement entered between Yuda Water Sdn Bhd, the Plaintiff and the Director of Sabah Water Department, who was acting under the authority of the State Government of Sabah, the Defendant in relation to the operation, management and maintenance of the river intakes, dam and treatment works including the ancillary buildings and other facilities within the vicinity of the area at Telibong II (Tuaran), Kampung Limbawang (Beaufort) and Kampung Ulau (Sepitang) for a period of twenty (20) years with effect from 1 October 2011.


In Yuda Water, the Plaintiff made an application under Order 14A for the determination of the following questions:

“Whether the Defendant has any defence to the Plaintiff's claim for compensation arising from the termination without fault dated 14.12.2018 under Clause 13.3(b) of the Contract dated 19.10.2011;

Whether the Defendant has any defence to the Plaintiff's claim for consequential damages arising from the termination without fault dated 14.12.2018 under Clause 13.3(b) of the Contract dated 19.10.2011;

Such other questions as this court shall deem fit.”


Mairin Idang @ Martin J, the High Court judge, noted that the requirements of Order 14A is trite as follows:

The defendant has entered appearance (Order 14A rule 1(3));

The question of law or construction is suitable for determination without a full trial of the action (Order 14A rule 1(1)(a));

Such determination will be final to the entire cause or matter or any claim or issue therein (Order 14A rule 1(1)(b)); and

The parties had an opportunity of being heard on the question of law (Order 14A rule 1(3)).


Under the Order 14A, the court will determine questions of law or construction of documents when it appears to the court that such question or construction of documents can be determined without a full trial. The determining factors will be derived from the facts disclosed by the pleadings and affidavit evidence which must be sufficient for the court to make such determination.


In Yuda Water, the High Court judge ruled as follows:

“To answer whether the Defendant has any defence to the Plaintiff's claims would clearly require the court to peruse through all available relevant evidence instead of just the pleadings and affidavits at hand. It is impossible for the Court to answer these questions by merely relying on the conflicting averments in the pleadings and affidavits. I agree with the Defendant that these questions are questions of facts which should be determined in a full trial.”


The High Court judge referred to two (2) pertinent authorities namely page 332 of the Malaysian High Court Practice 2001 Desk Edition and the Federal Court judgment in Thein Hong Teck & Ors v. Mohd Afrizan Husain & Another Appeal [2012] 1 CLJ 49 (“Mohd Afrizan”).


Page 332 of the Malaysian High Court Practice 2001 Desk Edition stated as follows:

"The test of whether the question of law or construction is suitable to be determined under this order is whether all the necessary and material facts relating to the subject matter of the question have been duly proved or admitted, and this postulates that there is no dispute or no further dispute as to the relevant facts at the time when the court proceeds to determine the question. The suitability of disposing of an action under this order depends entirely on whether the court can determine the question of law raised without a full trial of the action."


The Federal Court judgment in Mohd Afrizan stated as follows:

“It was trite that O. 14A of the RHC could only be resorted to if there was no dispute by the parties as to the relevant facts, or the court concluded that the material facts were not in dispute. In the present case there were serious disputed facts involved and these issues of fact were interwoven with the legal issues raised. As such the Court of Appeal was correct in finding that O. 14A of the RHC was not suitable for the purpose of determining the applicability of s. 314 of the Act to the partnership in the present case."


In Yuda Water, the High Court judge held that there were material dispute of facts relating to unpaid monthly lump sum fee balance and late payment interest, and the purchase of chemicals and reagents. These would require determination through examination of witnesses and evidence which warrants a full trial. In furtherance, since the reliefs sought of the writ action also derived from other provisions in the said Contract, the determination of these questions of law will not be final as to the entire suit.


In relation to the third question, “Such other questions as this court shall deem fit”, the High Court judge referred to the Court of Appeal case of Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2007] 6 CLJ 741 and stated that Order 14A is not a tool where the Court is required to interpret the statement of claim to decide what point of law arises before deciding on it. An Order 14A application is to decide clear points of law or construction that are apparent on the pleadings. The points of law to be determined thereunder must be stated in clear and precise terms.


Accordingly, the application was dismissed.


LCDA

LCDA is a Court of Appeal matter involving two appeals wherein the appellant appealed against the decision of the High Court judge in granting the 1st and 2nd Defendants’ application and the 3rd Defendant’s application respectively.


LCDA stems out of a Native Customary Rights (“NCR”) dispute wherein the Plaintiff, a native of Sarawak and of Lun Bawang race, pleads that he has acquired or inherited NCR over four parcels of Temuda land known as Field Lots No. 349, 682, 702 and 722 Block 9, Trusan Land District.


The 1st Defendant is the Superintendent of Lands and Survey Kuching Division. The 2nd Defendant is the State Government of Sarawak. The 3rd Defendant is a statutory body within the 2nd Defendant's Government created under Land Custody and Development Ordinance 1984 and currently named as the registered proprietor of Lot 349, Block 9, Trusan Land District.


Although various provisions of the Rules of Court 2012 were cited, the applications were primarily premised on Order 14A.


The 1st and 2nd Defendants’ questions of law were:

“Whether the third defendant being the registered proprietor of Lot. 349, Block 9, Trusan Land District has indefeasibility rights over the said land against the plaintiff's alleged NCR claim as delineated and shown in Map "M" of the plaintiff's amended writ and statement of claim dated 21 September 2017.

If the above question (i) is in the positive, whether the plaintiff could apply for or be entitled to the remedies, reliefs or orders prayed for in the amended statement of claim dated 21 September 2017 as against the third defendant title?

Whether the plaintiff's claims and reliefs sought are barred by reason of s. 2 of the Public Authorities Protection Act 1948 and or items 29, 72, 97, 110 and/or 112 of the Schedule to Sarawak Limitation Ordinance (Cap 49) and or s. 202 of the Sarawak Land Code (Cap 81).”


The 3rd Defendant’s questions of law were:

“(a) Whether the plaintiff's claims and reliefs sought are barred by reason of s. 2 of the Public Authorities Protection Act 1948 and/or items 29, 72, 97, 110 and/or 112 of the Schedule to Sarawak Limitation Ordinance (Cap. 49) and/or s. 202 of the Sarawak Land Code (Cap. 81) and

(b) Other relief deemed fit and proper by the court.”


The Court of Appeal, in examining both appeals, stated that the Federal Court in Kerajaan Negeri Kelantan v. Petroliam Nasional Bhd & Other Appeals [2014] 7 CLJ 597, ruled that a Court, in determining an Order 14A application, should consider whether the action is suitable to be disposed off by way of the said Order 14A application and whether the material facts are not in dispute.


The 3rd Defendant submitted that Lot 349 belonged absolutely to the Sarawak Government from 1977 vide the 1977 Settlement Order that was issued and gazetted in the Sarawak Government Gazette pursuant to Section 95 of the Sarawak Land Code (a full investigation and final determination of all claims over the relevant State lands, Lot 349 was determined by the settlement officer and settled as being unencumbered interior area land). Further, in 1991, vide Trusan Land District (Native Area Land Declaration) (No. 2) Notification, 1991, the whole of Lot 349 was declared as native area land free of any encumbrances. Accordingly, pursuant to Section 132 of the Sarawak Land Code, the 3rd Defendant being the registered proprietor of the said Lot 349, holds an indefeasible title to it.


The Plaintiff claimed that no notice was issued to him and that he possessed no knowledge that the said Settlement Order was issued and gazetted. Also, he pleaded that the Land Department fraudulently issued Lot 349 to LCDA and contended that evidence existed to show that portions of Lot 349 were in fact cleared land. The Plaintiff was also steadfast that his grandfather cleared and cultivated the said lands prior to the Japanese Occupation circa 1941 and the said lands are now inherited by the Plaintiff and his siblings. Accordingly, the NCR rights claimed by them were not extinguished.


The Court of Appeal held that the relevant and material facts pertaining to the issues were in dispute such as whether an investigation of the of NCR's claim over the said lands was made prior to the said Settlement Order and whether the said lands were cleared and cultivated by the Plaintiff’s grandfather. Appropriately, this requires hearing the evidence of witnesses in a full trial, and not summarily vide affidavit averments.


Accordingly, the appeals were allowed, and the order of the High Court was set aside.


CONCLUSION

Yuda Water and LCDA are two timely reminders of the trite principles that ought to be satisfied for an application under Order 14A to be successful.


To recap, a successful Order 14A application shall satisfy the following:


(a) The defendant(s) has filed a Memorandum of Appearance.


(b) The question of law or construction is suitable for determination without a full trial of the action.


(c) Such determination will be final to the entire cause or matter or any claim or issue therein.


(d) All necessary and material facts relating to the subject matter of the question have been duly proved or admitted, and there is no dispute or further dispute as to the relevant facts at the time when the court proceeds to determine the question.


(e) The parties have had an opportunity of being heard on the question of law.


Image by Edward Lich from Pixabay

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