Monday, April 14, 2008

PLEADING

SYARIAH COURTS PLEADING AND ITS COMPARATIVE WITH CIVIL COURTS PLEADING
LEGAL DEFINITION OF PLEADING

In the law, a pleading is one of the papers filed with a court in a civil action, such as a claim/complaint, a demurrer, or an answer. A complaint is the first pleading filed by a plaintiff which initiates a lawsuit. A complaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief whereas a demurrer is a pleading filed by a defendant which challenges the legal sufficiency of a complaint and an answer is a pleading which admits or denies the specific allegations set forth in a complaint and constitutes a general appearance by a defendant. A defendant may also file a cross-claim/complaint as well as bringing other parties into a case by the process of impleader. Pleading is a statement in factual form. It is not a statement of evidence nor law and the person whom submit pleading called as litigant or lawyer.
Examples of pleadings are as follows:-
  1. Statement of claim;
  2. Statement of defence;
  3. Counter-claim;
  4. Reply to counter-claim; and
  5. Reply to Statement of defence

FUNCTION OF PLEADING
  1. To notify the parties about what are the claims or defence and inform each party what the case of the opposite party is which he will have to meet before and at the trial as to avoid surprises.
  2. To limit and provide perimeter of claims and defences.
  3. Pleadings also serve as a fair and proper notice to an opponent so as to enable him to frame and prepare his own case for trial.
  4. It is so in reason to save court’s time by avoid non-arguable issues being introduced.

GENERAL RULES OF PLEADING
  1. Pleading must be precise, concise and definite.
  2. Litigant must use either Basic English or Malay Language.
  3. Must be Facts and not evidence to be pleaded.
  4. Every facts pleaded in pleadings must be proven by witness’s evidence.
  5. The parties cannot invoke any matters or facts which not stated in the pleading.
  6. The court unless satisfy can order for no submission if the case presented clearly.
SYARIAH COURTS PLEADING

Syariah Court is a body where it provides and governs the service of law according to the Islamic law and the enforcement of syariah jurisdiction based on law of syara in an effective manner. According to Syariah Court Civil Procedure [Federal Territories] Act 1997[hereinafter referred as the Act]; the Syariah court jurisdiction only applies to the Federal Territories of Kuala Lumpur and Labuan by virtue of Section 1(1).

Besides that, provision under Section 2 of the Syariah Court Civil Procedure [Federal Territories] Act 1997 shall have effect in all civil proceedings commenced in any Syariah Court except as otherwise provided under any other written law or ordered by the Court.

These Act briefly provide and stipulate the manner of lawsuit to be conducted in a Syariah Civil Proceedings. The mode of beginning a civil proceeding in Syariah Court according to the Act are based on Section 7(1) that states “subject to Subsection (2) or any other written law, every civil proceedings in a court shall be begun by summons” and in Subsection (2) states that “all proceedings in respect of any of the matters specified in the Second Schedule shall be begun by application”.

The system of pleadings in the Syariah Court, laid under Section 63(1) of the Syariah Court Civil Procedure [Federal Territories] Act 1997 that states every statement of claim shall be signed by the plaintiff or his Peguam Syarie and shall contain the following aspects :-
  1. A concise statement, in numbered paragraphs, of the fact relied on by the plaintiff and indicating his cause of action, including particulars of any special capacity in which the plaintiff sues;
  2. Sufficient particulars of the claim;
  3. A statement of the relief claimed; and
  4. Particulars of any other applications
Besides that, according to Section 63(2) “where more than one cause of action is relied on the ground of each and the relief claimed thereon shall be stated separately.

However, defendant relying on Section 64(1) of the Act, which said “a defendant who disputes his liability for the whole or part of any claim in the action may take action based on proviso as follows:-
  1. That says at any time before the day of appearance, serve on the plaintiff a defence; or
  2. Appear on the day of appearance and dispute the plaintiff’s claim
If a defendant appears in Court and disputes the plaintiff's claim, the Court by Section 64(2) may order him to serve a defence within such time as it may direct and this defence must be filled in through Form MS16 as stipulated under Section 64(3) of the Act. Defendant’s defence pleading in Syariah Court should be according with Section 65(1) of the Act where it stated that every defence shall be signed by the defendant or his Peguam Syarie and shall either follow the provisions under proviso as follows:-
  1. Admit or deny every material allegation of the fact in the statement of claim;
  2. State concisely any new facts on which the defendant relies by way of defence; and
  3. Raise concisely and without argument any necessary matters of law
But, bear in mind that denial under Section 65(1) must be clear which shall answer all the point of substance brought on him/her.

In relation to a counterclaim in Syariah Court which according Section 66(1) of the Act, where every counterclaim shall contain/ascertain the like matter and particulars as a statement of claim and shall be signed by the defendant or his Peguam Syarie.

Whereas, Section 66(2), reminds that a counterclaim shall not be made against any person not then a party to the action brought in as stated under statement of claim, but if a cross action is brought an order for consolidation may be made by the leave of Court.
Whenever defendant enter counterclaims, the plaintiff shall, if he desires to defend the counterclaim file and cause to be served on the defendant a defence to the counterclaim within such time as the Court shall direct as ascertain in Section 67(1) of the Act. Meaning that, if the plaintiff fails to comply with Section 67(1) and so Section 16 shall apply, as if the plaintiff were a defendant. Section 16(1) of the Act states that “notwithstanding anything in this Act, the Court may, in its discretion will allow any claim or defence to be made orally as provided that in such a case the Court shall record the particulars of the claim or defence having regard to the requirements of this Act relating to summons or applications, as the case may be”.

Accordance with Section 68 of the Act “if a defence of tender before action is raised, the defendant shall, on filing his defence, pay into Court the amount alleged to have been tendered”. Then the court according to Section 69 of the Act may for sufficient reason grant leave to file and deliver a reply to a defence, whether such defence is a defence against a claim or a counterclaim.

In the case of Non-compliance in the manner or procedure of pleading the Court may refuse to accept pleading and direct for amendment. This is stipulated under Section 70 of the Act. Simply it mean that if any pleading does not contain sufficient particulars, the court may, of its own motion or on the application of any party, order the party responsible to file and cause to be served further and better particulars, and may stay all proceedings pending compliance, as per in Section 71(1) of the Act, and by virtue of Section 71(2), further and better particulars may be filed and served on request without order as consequence of non-compliance.

However, by virtue of Section 80(1) of the Act the Court may at any stage of the proceedings before ruling or judgment, allow the plaintiff to amend his summons, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner, if any, as it may direct. If the amendment referred to in Section 80(1) made after any relevant period of limitation current at the date of issue of the summons has expired, the Court may, if it thinks just, grant such leave on such terms as it thinks fit. It is court’s discretionary power by taking into consideration the parties equality and in the save of justice according to Section 80(2). And any party to any proceedings may amend his pleading at any time before the service of pleadings to the other party without the order of the court as provided under Section 80 of Subsection (3).
CIVIL COURTS PLEADING
Pleadings are statements in writing drawn up and filed by each party to an action stating what his contention will be at the trial and giving all such details as his opponents needs to know in order to prepare his case in answer. It is a cardinal rule that parties is bound by their pleadings and are not allowed adduce facts which they had not pleaded. In the case of Blay v Pollard & Morris (1930) Scrutton LJ observed that “cases must be decided on the issues on the record; and if it is desired to raise other issues they may be placed on the record by amendment.

Some of the documents which come within the definition of pleadings are statement of claim, defence, reply, counterclaim, defence of counterclaim, a statement of claim indorsed on a writ of summons, and further and better particulars of pleadings. Some of the documents, which fall outside the definition of pleadings, are a general indorsement on a writ, a petition, summons or preliminary act, an originating summons and any affidavit or notice of appeal. An affidavit may stand as a pleading if specifically ordered by the court. When further and better particulars are furnished it amounts to pleadings. The objects of pleadings are as follows: (a) to define with clarity and precision the issues in dispute, (b) to require each party to give fair and proper notice to his opponent, in order to enable him to prepare his case and (c) to inform the court the issues, which are, required to be determined by the court.

The importance of pleadings was emphasized by the Supreme Court in the case of Lee Ah Chor v Southern Bank Bhd (1991). The court stated that where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal. The rules regarding pleadings are set out under Order 18 of The Rules Of The High Court 1980.

Under Order 18 of The High Court Rules it is stated that a pleading must state the facts and not the law. In the case of Song Lian Chye v Tai Kian Cheong (1983), the Federal Court stated that it is a cardinal rule of pleading that law should not be pleaded. Order 18 Rule 7 states that pleadings must only contain material facts on which the party pleading relies for his claim or defence. It must state only the facts on which the party pleading relies for his claim or defence, and not the evidence by which they are to be proved. It also states that the facts must be in form of a concise statement, but in aiming at conciseness precision should not be sacrificed.

According to Order 18 Rule 6, the pleadings where necessary, shall be divided into paragraphs, numbered consecutively and each allegation being so far as is convenient contained in a separate paragraph. Dates, sums and figures shall be expressed in figures. It is also stated under Order 18 Rule 7(3) that allegation in anticipation of the opponent’s answer should not be made. The pleadings should be confined to what is material at the present stage of the action. Facts necessary for the enforcement of a legal right or duty must be mentioned. Thus in an action for breach of contract, it has to be stated specifically the terms of the contract and the breach thereof by the defendant.

Order 18 Rule 7(3) stipulated that facts, which the law presumes in ones favour or as to which the burden of proof lies upon the opponent need not be pleaded. The party also should not plead conclusion of law. However foreign law and certain customs and usage which are not judicially taken notice by the court, must be pleaded as facts.

All pleadings must be filed in the registry of the High Court where the writ issued and served within the prescribed time as stated below, unless the court gives leave to the contrary. According to Order 18 Rule 1, a statement of claim must be filed and served with the writ unless there is a general indorsement or within fourteen days after the defendant has entered appearance. Under Order 18 Rule 2, a statement of defence must be filed and served within fourteen days after the time limited for the appearance, or after the statement of claim is served on him. If the plaintiff intends to serve a reply he must do so within fourteen days after the service of the defence. This can be found under Order 18 Rule 3(4). If the defendant serves a defence with a counterclaim, the plaintiff must serve a reply if any, within fourteen days after the service of defence. If there is a counterclaim, a defence to the counterclaim within fourteen days after the service of the defence and counterclaim respectively. Generally both the reply and the defence to the to the counterclaim are joint and is served as one document. No pleading subsequent to a reply or a defence to a counterclaim can be served unless the court grants leave.

Normally parties are bound by their pleadings and they are not permitted to raise any issue at the trial if it is not pleaded. In the case of Mat bin Lim & Anor v Ho Yut Kam & Anor (1967), the plaintiff brought an action to recover damages for personal injuries. The defendant in their defence pleaded that the plaintiff’s claim was barred by limitation. In reply the plaintiff alleged there has been an acknowledgement of liability. The defendant applied for the plaintiff’s statement of claim to be struck out on the ground that it disclosed no reasonable cause of action. The court held that the acknowledgement should have been pleaded in the statement of claim and, as this was not done, the plaintiff’s statement of claim to be struck out must be allowed.

As discussed previous, pleadings are statements in writing prepared by the parties and served on each other. They consist of all the material facts on which the parties rely for the purpose of establishing a claim or defence. The pleading process only applies to an action commenced by writ. The term pleading is not positively defined by the rules but is expressed to exclude a petition, summons and preliminary act. An affidavit is not a pleading unless there is a specific order that it stands as one. Nor is a general endorsement on neither a writ, nor a notice of appeal a pleading. Pleadings include a statement of claim, a counterclaim, a defence and defence to counterclaim, a reply and subsequent responses served with the leave of court. When particulars of pleadings are given pursuant to a request or an order of court or voluntarily, they form part of the pleadings.

Every pleading must comply with the formal requirements laid down by the rules. These requirements ensure that the pleading is appropriately identified, that is it has the necessary details in relation to the suit, that the terminology used in respect of certain matters is consistent, that the content of the pleading is expressed in the appropriate form, and that it is properly endorsed and signed. Accordingly, every pleading must “bear on its face” the year in which the writ in the action was issued and the number of action, the title of the action and the description of the pleading. The pleadings must, if necessary, be divided into paragraphs numbered consecutively, each allegation being so far as convenient contained in a separate paragraph. Dates, sums and other numbers must be expressed in figures and not in words. Where the party sues or defends in person, the pleading must be endorsed with his name and address. In any other case, it should be endorsed with the name of the firm and business address of the solicitor by whom it was served. The pleading must be signed by the party’s solicitor or by the party, if he sues or defends in person. Specific provisions as to the paper used for the court documents must be considered in relation to the pleadings.

According to Order 18 Rule 20, pleadings in an action is deemed to be closed at the expiration of fourteen days after the service of the defence. However if there is a reply or defence to counterclaim pleadings is deemed to be closed after fourteen days of the service of the reply or defence to the counterclaim. It also can be noted under Order 18 Rule 22 that either party may, after the defendant has entered appearance apply to the court for an order that the action be tried without pleadings or further pleading as the case may be. The court may make an order provided it is satisfied that the issues in dispute between the parties can be defined without pleadings or further pleadings.
COMPARATIVE OF SYARIAH COURTS PLEADING WITH CIVIL COURTS PLEADING
Pleadings on Civil Courts system can be found under the Rules of The High Court 1980[hereinafter referred as the rules] of Order 18. The major differences which might be found under the rules are the limitation of time period set out for the parties to be bound in their procedure of submitting pleadings and the manner of endorsement of first instance pleadings on summons or writ by a plaintiff. Whereby Syariah Court Civil Procedure [Federal Territories] Act 1997 silent in these matters. Order 18 of Rule 1 of the rules stipulated that plaintiff must serve a statement of claim at any time after the service of the writ or summons but before the expiration of 14 days after that defendant enters an appearance. And defendant must enter his statement of defence before the expiration of 14 days after the time limited for appearing or after the statement of claim is served on him. By virtue of Order 18 of Rule 3(4) a plaintiff whom wants to reply to any defence and a defence to counterclaim must be served by the plaintiff before the expiration of 14 days after the service on him of that defence and counterclaim respectively.

Beside that, Syariah Court Civil Procedure [Federal Territories] Act 1997 silent in the way of illustrating the manner or frame of a pleading should be. Such in Order 18 Rule 6(1), (2), (3), (4) & (5) stipulate the necessary details/formal requirements which should be followed by a litigant while presenting their pleading. Even though, Syariah Court Civil Procedure [Federal Territories] Act 1997 indicate certain manner of drafting pleadings such as statement of claim but it is too general and not specifically illustrated.

Other than that, Syariah Court Civil Procedure [Federal Territories] Act 1997 not contains the form of the pleadings. Where under the Rules of The High Court 1980 Order 7 Rule (1), (2), (3) & (4) explain the forms of a claim or defence by parties in the proceedings and what should be included in the statement such as the statement should be the facts and not the evidence nor it should be brief.

However, both Rules of The High Court 1980 and Syariah Court Civil Procedure [Federal Territories] Act 1997 have the same opinion on the instruction of matters which must be specifically pleaded. It is accordance with Order 18 Rule 8. But no provision of matters which may plead at any time it is arising under Syariah Court Civil Procedure [Federal Territories] Act 1997.

Furthermore, Order 18 Rule 12 of the rules widely explain about the particulars of pleading which ought to be claimed. Order 18 of Rule 13 stipulate the admissions and denials of any allegation made by the parties in the proceedings whether by pleading or a joinder of issue.

Syariah Court Civil Procedure [Federal Territories] Act 1997 also quiet about the period of close of pleadings. But according to Order 18 Rule 14 the parties can denial by joinder of issue if the facts are not admitted whether impliedly or expressly.

Order 18 Rule 15 of the rules are pari materia with Section 63(1) of the Act which constituted the substance of a statement of claim. And Order 18 Rule 18 illustrate about the counterclaim on statement of claim and statement of defence by either parties to the proceedings.

Procedure of striking out of pleadings and indorsement to the pleading can be set out by relying on Order 18 Rule 19 in reason of no cause of action, no defence or malicious defence was framed and even if there is a reasonable cause of action but its scandalous, frivolous and vexatious or meaning to prejudice/embarrass the parties in proceedings and it may abuse the process of the Court. This Rule is equivalent with Section 80(1) of the act where court ought a discretionary power to order for strike out or amend the pleadings for any of the reason stated above before the judgment.
Whereas Order 18 Rule 20 stated the pleadings can be closed on the pleading last served are no documents to be filled after 14 days from the date of last document entered into and there is no reply entered.

Generally, parties are bound by their pleadings and are not allowed to adduce facts which they had not pleaded but however, Order 18 Rule 22 cited that an order can be gained for an action tried without pleading or further pleading if the defendant entered his appearance.

Finally, Order 19 of the rules clarify the position in default of pleadings. Where it can make a proceeding irregular or nullity. Even the writ can be without statement of claim but it must be endorse with the summary of claim. And the brief statement of claim must be served on defendant before expiration of 14 days after the defendant enters on appearance. The failure may amount defendant to apply dismissal action by summon in chambers towards the cause of action brought on him. However, bear in mind that plaintiff can apply for an extension order from court for serving statement of claim before expiration of the date. Unfortunately, Syariah Court Civil Procedure [Federal Territories] Act 1997 did silent of this part where no brief explanation was given to guide litigant in default of pleadings.
CONCLUSION

As a conclusion, Syariah Courts have become an integral part of the court system in Malaysia. In order for it to be accepted as such. It is necessary for the judges and officials of the Syariah Courts to show that they are as capable of dispensing justice as the civil courts. In the past, syariah court were treated as an inferior court and neglected in many ways. There were no doubt grounds to find excuses for the system of justice in the Syariah Courts. Now that they have became better organized, equipped and respected it will be possible for the Syariah Courts to show their worth and capabilities.

In order to make the public and especially the non-Muslims, Citizens in Malaysia less apprehensive and critical of their existence and work. It will be necessary for the Syariah Courts to show that they are capable of giving fair and equitable justice. It is not enough to speak about Islamic justice, it is necessary to demonstrate it by providing best and contemporary Civil Proceeding rules as to capable of dispensing fair and equitable justice to all.
What Article 121(1A) of Federal Constitution has done is to grant exclusive jurisdiction to the Syariah Courts in the administration of such Islamic laws. In other words Article 121(1A) is a provision to prevent conflicting jurisdiction between the civil courts and the Syariah Courts and so why not Islamic law statutes or legislation which region based amended and compiled together as to provided better settlement for the disputes arise in Islamic Civil matters such in discussion above in regard to pleading under Syariah Courts in Malaysia.

No comments: