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Malayan Law Journal Articles/1993/Volume 1/MEETING OF MINDS WITHOUT PLEADINGS

[1993] 1 MLJ cxv

Malayan Law Journal Articles

1993

MEETING OF MINDS WITHOUT PLEADINGS

Choong Yeow Choy

University of Malaya

Pleadings serve a two-fold purpose. First, pleadings inform each party what the case of the opposite party is
which he will have to meet before and at the trial. Thus, issues and questions which are in dispute between
the parties are defined with clarity and precision. 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. Secondly, pleadings inform the
court what the precise matters in issue are between the parties, issues which the court alone may adjudicate.
As was said by Scrutton LJ in Blay v Pollard & Morris:1 'Cases must be decided on the issues on the record;
and if it is desired to raise other issues they must be placed on the record by amendment.' 2

Pleadings also constitute a permanent record of the issues and questions raised in the action and decided
therein so as to prevent future litigation upon matters already adjudicated upon between the litigants or those
privy to them. 3

Parties bound by pleadings

Generally, parties are bound by their pleadings and are not allowed to adduce facts which they had not
pleaded. Chartered Bank v Yong Chan4 shows us the grave consequence of failing to plead a cause of
action. In that case, the respondent brought an action against the appellant bank for wrongful dishonour of a
cheque drawn by the respondent on a partnership account with the appellant bank. Although the act by the
appellant bank gave rise to two possible causes of action, namely, an action for damages for breach of
contract and in tort for libel, the case made against the bank in pleadings rested entirely on an allegation of
libel. At the trial, it was discovered that the action founded on libel was statute-barred by virtue of item 11 of
the Schedule to the Sabah Limitation Ordinance (Cap 72). However, the trial judge awarded a sum of
RM1,000 by way of damages for breach of contract.

The Federal Court held that the learned trial judge was wrong when he concluded that the pleadings
included a claim for breach of contract as well as a claim for libel. Since the trial judge had decided on an
issue not raised on the pleadings, the judgment was set aside.5
1 MLJ cxv at cxvi
Similarly, if a defendant wishes to raise for example, a defence of limitation, this too must be pleaded. This is
clear in view of the provisions in s 4 of the Limitation Act 19536 and O 18 r 8 of the Rules of the High Court
1980.

A strict enforcement of this rule can be seen in Kaliammal v Manickam. 7 The facts were straight forward in
that the plaintiff claimed from the defendant for wages payable by the defendant to him for services
rendered. The plaintiff succeeded in the Sessions Court. On appeal to the High Court, the substantial ground
raised was that the plaintiff's claim was statute barred. The defendant in the lower court was unrepresented
and she did not plead the statute of limitations. To this, Abbott J said:
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... there is an obligation imposed by the law of procedure in this country requiring the party relying upon the statute of
limitations specifically to plead it, and failure to do so robs him of the value of the statute. It is not part of the duty of the
court to take notice of the statute of limitations unless it is specifically pleaded.8

Again, in the case of The Firm of TARCT v The Firm of SNSARN, 9 Buhagiar J said:

The court is not bound of its motion to look into the question of limitation and see whether the suit, prima facie, has
been brought in time; the court hearing a suit is compelled to dismiss it if the claim is barred only if the defence of
limitation is set up; if such defence is not set up the claim will be tried on its merits and there is no duty imposed on the
court to dismiss the suit motu proprio. 10

A pleading of the defence of limitation is merely an illustration of this cardinal principle.11 In Gimstern Corp
(M) Sdn Bhd & Anor v Global Insurance Co Sdn Bhd, 12 the Supreme Court reaffirmed this principle that if
issues brought up at the trial had not been pleaded, the contentions should not be entertained.

As stated earlier, cases must be decided on the issues on record. Whether a point has not been pleaded due
to the negligence or inadvertance of the solicitor, the courts play an inactive, passive and non-interventionist
role in the machinery of civil justice which operates throughout the whole range of civil proceedings. The
court, subject to a few exceptions which will be examined later, has no power or duty to determine what are
the issues or questions in dispute between the parties save as may appear from the pleadings or other
statements of the parties. 13 The court itself is as much bound by the pleadings of the parties as they are
themselves. This is understandable in view of the fact that we adhere to the adversarial system
1 MLJ cxv at cxvii
and thus a judge should play the role of an umpire rather than the inquisitor. We were reminded of this
fundamental principle in Haji Mohamed Dom v Sakiman, 14 Janagi v Ong Boon Kiat15 and quite recently by
the Supreme Court in Yew Wan Leong v Lai Kok Chye. 16

The foregoing is best summed up by referring to a judgment by the Supreme Court in a recent decision. In
Lee Ah Chor v Southern Bank Bhd, 17 Jemuri Serjan SCJ [as he then was] said:

It does not seem necessary for us to emphasize and repeat the importance of pleadings in a civil suit castigating
observations on which had been made from time to time in many cases in our courts. It is only a question of whether
counsel, either because of negligence, inadvertance or call it what you will, choose to pay them scant or no heed at all
and we must say that they do so at their own peril. Recently, lapses in the strict compliance with the rules of pleadings
occurred in our courts with marked frequency and we do not see how such lapses in the courts should be tolerated at
the expense of the clients. 18

In the last few years, a significant number of cases have been reported where Malaysian courts were
required to deal with such occurrences of lapses on the part of the solicitors in the preparation of their
pleadings with the resultant dire consequences. The Supreme Court in Lee Ah Chor referred to three such
cases, namely Muniandy & Anor v Muhammad Abdul Kader & Ors, 19 Chung Khiaw Bank Ltd v Hotel Rasa
Sayang Sdn Bhd20 and Associated Pan Malaysia Cement Sdn Bhd v Syarikat Teknikal & Kejuruteraan Sdn
Bhd. 21 In all these cases, the court disallowed the parties from raising points that were not pleaded.

However, what has to be emphasized is that although the above rule is trite law, it remains only a general
principle. Under some exceptional circumstances, the principle that prohibits a party from raising for the first
time points which have not been previously pleaded may be departed from. This article shall attempt to
discover the circumstances which justify a departure from this important rule.
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Before proceeding any further, it must be emphasized that a distinction should be drawn between raising for
the first time points which have not been pleaded and raising for the first time points which have been
pleaded but was never raised and argued at the trial. It is the former that we are concerned with. The
question that has to be answered is: what are the exceptional circumstances that may justify such a
departure? Were those exceptions not applicable in Lee Ah Chor and the other cases mentioned above?
1 MLJ cxv at cxviii

Exceptions to the rule that points not pleaded may not be raised

(1) Illegality

The extent of the application of this exception can be seen from the decisions of the following cases.

Chang Min Tat J in Wai Hin Tin Mining Co Ltd v Lee Chow Beng 22 discovered in the course of the trial that
the whole action by the plaintiff company claiming repayment of an interest free loan of RM2,500 lent by the
plaintiffs to the defendant at the latter's request to enable the defendant to purchase shares in the plaintiff
company was based on an illegality. This was because the transaction was a contravention of one of the
company's articles of association and certain sections of the Companies Ordinance No 49 of 1940.

The following passage in the judgment which is pertinent for our discussion is reproduced:

I could take cognizance of the said illegality, I thought the law, on the authority of Scott v Brown, Doering, McNab & Co
[1892] 2 QB 724, Gedge & Ors v Royal Exchange Assurance Corp [1900] 2 QB 214 and R v Weiss & Anor [1951] 2 KB
611 was clear that in some cases the court would itself take notice of the illegality of the contract in which the plaintiff
was suing if it appeared on the face of the contract and from the evidence brought before it by either party, although the
defendant had not pleaded the illegality.

In Scott v Brown, Doering McNab & Co, the maxim in pari delicto potior est conditio possidentis and ex turpi
causa non oritur actio were quoted by AL Smith LJ and Lindley LJ respectively. Lindley LJ succintly stated
that it matters not whether the defendant did or did not plead the illegality.

In North Western Salt Co Ltd v Electrolytic Alkali Co Ltd, 23 the House of Lords held that where an action is
brought on a contract which is ex facie illegal as being in unreasonable restraint of trade, the court will
decline to enforce the contract, irrespective of whether illegality is pleaded or not. However, where the
question of illegality depends upon the surrounding circumstances, as a general rule, the court will not
entertain the question unless it is raised by the pleadings.

The proposition that may be derived from the above cases is that where a contract is ex facie illegal, the
court will decline to enforce it, irrespective of whether illegality is pleaded or not. However, where a contract
is not ex facie illegal, three different situations may further give rise to different considerations.

After confirming that where a contract is ex facie illegal the court will not enforce it whether illegality is
pleaded or not, Devlin J in Edler v Auerbach 24 said:

... Secondly, evidence of extraneous circumstances tending to show that it was an illegal object should not be admitted
unless the circumstances relied on are pleaded; thirdly, where unpleaded facts, which taken by themselves show an
1 MLJ cxv at cxix
illegal object have got in evidence (because, perhaps, no objection was raised or because they were adduced for some
other purpose), the court should not act on them unless it is satisfied that the whole of the relevant circumstances are
before it; but, fourthly, where the court is satisfied that all the relevant facts are before it and it can be seen clearly from
them that the contract had an illegal object, it may not enforce the contract, whether the facts were pleaded or not
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The Federal Court of Singapore in Seven Seas Supply Co v Rajoo 25 endorsed the above propositions and
applied it to the facts of that case. Here, the appellants had appealed against the decision of the learned trial
judge who had given judgment against the appellants for $7,000 and costs on a claim for money lent to the
appellants. One of the grounds raised by the defendants was that the loans were illegal and void under the
provisions of the Moneylenders Ordinance 1959 and consequently not recoverable by the plaintiff. This
defence was not pleaded.

After quoting the above passage of Devlin J, Buttrose J said:

The court therefore ought not, on its own initiative, to refuse to enforce a contract on the ground of illegality unless it is
quite certain that all the relevant facts are in evidence.

So far from being certain that all the relevant facts were before the court it appeared to me that essential evidence was
missing.

The question of whether the plaintiff was a moneylender was disputed. The plaintiff was asked if he was a moneylender
but he denied it and also the fact that the defendants had ever paid him interest. The matter was never explored in any
detail nor given that close examination, it should have received and no doubt would have if it had been in issue and
pleaded.

In all these circumstances, it is impossible to say that all the relevant circumstances relating to the question of whether
the plaintiff was a moneylender or not were before the court.

I have come to the conclusion that the plaintiff is right in his contention that the third of those propositions enunciated
by Devlin J covers this case ie that court will not act on unpleaded facts unless it is satisfied that the whole of the
relevant circumstances are before it. 26

At this juncture, it is perhaps necessary to pause and summarize the law. What is clear is that ex facie illegal
contracts are unenforceable regardless of whether illegality is pleaded or not. Similarly, where the court is
satisfied that all the relevant facts are before it and it can see clearly from them that the contract had an
illegal object, the court will not enforce the contract, even though the facts were not pleaded. This is based
on the first and fourth proposition as enunciated by Devlin J in Edler v Auerbach.

On the other hand, if a case falls within the ambit of Devlin J's second or third proposition, the court may not
come to the aid of a party who has failed to plead illegality. In such a case, it is submitted that the court has a
discretion in dealing with the illegality. However, the court would only entertain the question not pleaded in
exceptional circumstances. What would amount to exceptional circumstances is a question of fact. One of
the very rare occasions where the court was willing to consider a point not
1 MLJ cxv at cxx
pleaded arose in Keng Soon Finance Bhd v MK Retnam Holdings Sdn Bhd & Anor. 27

The facts of Keng Soon Finance are briefly as follows. The first respondent was at all material time the
registered proprietor of certain land which had been divided into 59 lots, upon each of which it was proposed
to construct a dwelling house. The first respondent had applied for credit facilities from the appellant and
created a legal charge of that piece of land in favour of the appellant. At the same time of the creation of the
charge, the majority of the 59 lots had been sold to purchasers including the second respondent.

When the first respondent fell into arrears of payment of interest, the appellant served on the first respondent
a formal notice under s 254 of the National Land Code 1965. 28 The appellant then applied for an order for
sale under s 256(3) of the National Land Code 1965. This application was refused by the High Court and the
Federal Court. However, the appeal against the refusal was allowed by the Privy Council. Be that as it may,
their Lordships did not grant the order for sale of the land sought by the appellant on the ground that counsel
for the second respondent had succeeded in raising before their Lordships an entirely new point of illegality
which raised directly the question of the legality of the charge.

What was sought to be raised on the issue of illegality was the question of the validity of cl 3 of the sale and
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purchase agreement entered into between the first and second respondent. It was alleged that the failure to
include the mandatory clause provided for in r 12(1)(b) of the Housing Developers (Control & Licensing)
Rules 1970 29 but cl 3 instead, rendered the sale agreement unlawful and of no effect. 30

This, it was argued, affected the first respondent's ability to bind the interests of the purchasers. Their
Lordships also observed that there was a broader point of illegality stemming from the contravention of s 5(1)
of the
1 MLJ cxv at cxxi
Housing Developers (Control & Licensing) Act 196631 in that the first respondent was an unlicensed housing
developer. Their Lordships were of the view that the point was a substantial one which raised directly the
question of the legality of the charge.

Against the background adumbrated above, Lord Oliver of Aylmerton said:

It is well established as a general principle that the illegality of an agreement sued upon is a matter of which the court is
obliged, once it is apprised of facts tending to support the suggestion, to take notice ex proprio motu and even though
not pleaded (see eg Edler v Auerbach [1950] 1 KB 359) for clearly, no court could knowingly be party to the
enforcement of an unlawful agreement. In these circumstances, their Lordships have been persuaded that this is one of
the very rare occasions upon which they should depart from their usual practice and permit Mr Hira Singh to present his
argument.32

(2) Lack of jurisdiction

To determine the civil jurisdiction of the subordinate courts in Malaysia, one has to refer to the Subordinate
Courts Act 1948.33 The jurisdiction to try a case may be restricted under any of the following three headings,
that is monetary value, 34 subject matter35 and territorial jurisdiction. 36

As for the civil jurisdiction of the High Courts in Malaysia, there is no monetary limit imposed. As for subject
matter, there is again no limit except to the extent excluded by art 128 of the Federal Constitution. The
relevant provisions to determine the territorial jurisdiction of the Malaysian High Courts are ss 23 and 24 of
the Courts of Judicature Act 1964. 37

If a court lacks jurisdiction, obviously any award or finding made would be null and void. A defendant would
certainly raise an objection as to the competency of a court to try the action. The question is whether a
defendant can raise an objection as to the lack of jurisdiction if this has not been pleaded. Can the court still
take cognizance of the point for want of pleadings?

The English Court of Appeal in Joseph Crosfield & Sons Ltd v Manchester Ship Canal Co38 was of the view
that in a proper case, the court will allow an objection of ouster of jurisdiction to be raised at the trial of an
action, though not previously raised by the pleadings. The court will treat the pleadings as amended
accordingly. The vital question is as to what constitutes a proper case. The answer may be found in
Rengasamy v Annamalai. 39
1 MLJ cxv at cxxii

In that case, the appellant had appealed against the decision of the High Court ordering, inter alia, 'that the
defendant do return to the plaintiff the eating-shop ... with all chattels and fittings as described in the
agreement dated 30 July 1951.'

At the appeal, counsel for the appellant contended that the agreement annexed to the plaint was a tenancy
agreement and that the respondent should have applied to the Rent Control Board under s 12 of the Control
of Rent Ordinance 1948 for permission to the institution of the present suit. Since the respondent had omitted
to do so, it was submitted on behalf of the appellant that the High Court had no jurisdiction.
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What is important is that this point on the lack of jurisdiction was only raised at the first time before the Court
of Appeal. Should the appellant be entitled to benefit from the jurisdiction issue? Mathew CJ answered as
follows:

I think the answer is to be found in Farquharson v Morgan (1894) 1 KB 552. The first part of the headnote reads:

'Where total absence of jurisdiction appears on the face of the proceedings in an inferior court, the court is bound to
issue a prohibition, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by
the inferior court.' 40

Having said that, the Court of Appeal held that the defect in jurisdiction was not patent on the face of the
proceedings. The court would require far more extended argument than what they had enjoyed before they
could be satisfied that there were in fact any defect in jurisdiction.

Another instance where the lack of jurisdiction was not patent is illustrated in Lian Ann Lorry Transport &
Forwarding Sdn Bhd v Govindasamy.41 In this case, the respondent had suffered severe injuries as a result
of an accident sustained while he was unloading bundles of carpets from the appellants' lorry. The trial court
found that the appellants were negligent and awarded damages in favour of the respondent. The defence by
the appellants that the respondents being an insured person within the meaning of s 2 of the Employees
Social Security Act 1969, 42 by virtue of s 31 thereof was not entitled to receive damages under the common
law failed. The trial judge came to the conclusion that s 31 of the said Act had no application to the case.

On appeal to the Federal Court, one of the grounds raised was 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. As was pointed out by Salleh Abas FJ there was nothing in the
statement of defence or amended statement of defence to show that the appellants objected to the
jurisdiction of the High Court to determine the issue and in particular, the question as to whether or not the
respondent was an employee. Since the issue of the civil court's lack of jurisdiction was
1 MLJ cxv at cxxiii
never pleaded and that it was raised only at the last stage of the trial, the Federal Court was of the view that
the learned trial judge was right in not taking counsel's submission on this issue into consideration. The
submission was considered to be without a basis in that it was not supported by their own pleadings.

Thus, a clear distinction is drawn between patent and latent defects in jurisdiction. The reason for the
distinction was explained by Coleridge J in Marsden v Wardle.43 At p 701, the learned judge said:

There is reason for refusing the writ after judgment in the courts where the proceedings set forth the detail of the
matter, and the party has the opportunity of moving before judgment. Then if he chooses to wait and take the chance of
judgment in his favour, he may be held incompetent to complain of excess of jurisdiction if judgment is against him.
There is, however, good reason for departing from this principle where the defect is apparent on the face of the
proceedings below; because the complaint is that case does not rest on the evidence of the complainant; and if such a
defective record were allowed to remain and to support a judgment, it might become a precedent: that which was in
truth an excess of jurisdiction might be considered to have been held to be legal.

A situation where the lack of jurisdiction would be patent would be where a session court has made an order
for specific performance or recission of a contract. 44 In such a case, even though the issue of jurisdiction
was not pleaded and raised for the first time on appeal, the court may nevertheless accept the point and treat
the pleadings as accordingly amended.

(3) Point not pleaded but presented and developed without objection

We have seen earlier, on the authority of s 4 of the Limitation Act 1953, O 18 r 8 of the Rules of the High
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Court 1980 and the case of Kalliamal v Manickam,45 that if a defendant wishes to rely on a statute of
limitation, this must be pleaded. Thus, if a right to recover a debt has accrued more than six years ago, prima
facie the action is statute-barred by virtue of s 6(1) of the Limitation Act 1953. But the plaintiff will only be
rendered remediless if this defence is pleaded. Otherwise, the court may make an award based on the claim.

This is only a prima facie rule because the six years limitation period is subject to s 26(2) of the Limitation Act
1953 which provides for a fresh accrual of action if the defendant acknowledges the claim. Hence, if a right to
recover a debt has accrued in 1980 and an action is only brought in 1988, the action is statute-barred. But
the defence of limitation must be pleaded. If, however, an acknowledgment in accordance with s 26(2) and s
27 of the Limitation Act 1953 was made by the defendant in 1985, limitation will only set in in 1991. The
important question is whether the plaintiff must plead the acknowledgment in his statement of claim if the writ
was issued in 1988.
1 MLJ cxv at cxxiv

The answer is in the affirmative. Reference may be made to the Federal Court case of KEP Mohamed Ali v
KEP Mohamed Ismail46 and the Privy Council decision in Overseas Chinese Banking Corporation Ltd v
Phillip Wee Kee Puan. 47 In both cases, the claims were statute-barred and this was pleaded by the
defendants. However, there were also acknowledgments of the debt by the defendants which would have
extended the limitation period. Here, the acknowledgments were not pleaded by the plaintiffs in their
respective statement of claim or reply. In both cases, the failure to plead the acknowledgments were proved
not to be fatal. What is the basis of this exception to the rule that parties are bound by their pleadings?

Raja Azlan Shah CJ (as he then was) in KEP Mohamed Ali rightly pointed out that in a case where limitation
is relied on, an acknowledgment should be pleaded. This point was also endorsed by the Privy Council in
Philip Wee Kee Puan's case. The learned Chief Justice in KEP Mohamed Ali drew our attention to the fact
that the material facts relating to the acknowledgment in that case were not pleaded in the statement of claim
nor in the reply apart from a statement by the plaintiff that the law of limitation did not apply in that action.
Based on the above finding, his Lordship came to the following conclusion:

That in our opinion is bad pleading. But it is a matter of indifference to the court whether the plea of acknowledgment is
pleaded in the statement of claim or in the reply. If it is raised in the statement of claim, it would make a reply
unnecessary and so reduce costs. A further advantage of pleading an acknowledgment in the statement of claim is that
the defendant may thereby be led to refrain from raising the issue of limitation in the defence, thus narrowing the area
of discovery and reducing costs: see Bullen & Leake (12th Ed) at p 638. Since the material facts and circumstances
were not pleaded in the statement of claim, it should have been pleaded in the reply. 48

Although it appears quite clear that the failure to plead the acknowledgment is a serious lapse in the strict
compliance with the rules of pleadings and the plaintiff should suffer the consequences, nevertheless the
Federal Court in KEP Mohamed Ali treated this as an exception to the principle that parties and the court are
bound by pleadings. In the very next line after the above quotation, the Federal Court said:

Be that as it may, this aspect of the case has been satisfactorily presented and developed in the proceedings before
the High Court and we think there are materials on the record from which a decision to that effect could be arrived at.
As one of the objects of modern pleadings is to prevent surprises, we cannot for one moment think that the defendant
was taken by surprise. To condemn a party on a ground of which no material facts have been pleaded may be as great
a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.

What is the basis of the exception? Is it (1) because the point not pleaded was nevertheless allowed to be
presented and developed; or (2) because the
1 MLJ cxv at cxxv
other party was not caught by surprise as the point not pleaded was raised time and time again at the trial?
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If we accept the first reason, then what we are saying is that the rule that requires material facts to be
pleaded has no application if an opponent fails to object to an unpleaded point from being raised for the first
time. As long as the point has been allowed to be presented and developed, it is immaterial whether it has
been pleaded or not. We must remember that the function of pleadings is not merely as a rule that may be
compromised by the parties in the litigation, for pleadings also serve as a permanent record of the issues
and questions raised in the action.

The decision in KEP Mohamed Ali was affirmed by the Privy Council in Philip Wee Kee Puan's case. In that
case, the Privy Council confirmed that the failure on the part of the respondent to raise an objection to the
admission in evidence of the respondent's letter which was an acknowledgment of his own indebtedness to
the bank had the effect of making the letter part of the total material on which the judge had to decide the
case. The fact that the acknowledgment was not pleaded was rendered immaterial.

With regard to the second reason, the object of preventing surprise is merely one of many objects of modern
pleadings. To allow an exception on the ground that the parties concerned were not caught by surprise on a
point raised would strike at the very root of the rule of modern pleadings. With respect, it is submitted that it
is incorrect to say that to condemn a party on a ground of which no material facts have been pleaded may be
as great a denial of justice as to condemn him on a ground on which his evidence has been improperly
excluded.

Perhaps the failure to take an objection to a point not pleaded and raised for the first time would only be
material in a case involving a failure to plead an acknowledgment of a debt. In other words, the decision of
the Federal Court and Privy Council in KEP Mohamed Ali and Philip Wee respectively, are restricted to the
facts and not to be taken as of general application.

(4) The Wisma Punca Emas exception

In Wisma Punca Emas Sdn Bhd v Dr Donal R O'Holohan, 49 the Supreme Court by a majority of two to one
upheld the decision of the trial judge in awarding damages to the respondent/plaintiff for actionable nuisance
even though nuisance was not specifically pleaded. In that case, the appellant and respondent were owners
of adjoining landed properties. As a result of development works carried out on the appellant's land, the
respondent took out a writ against them claiming, inter alia, damages and also prayed for an injunction. The
case against the appellant was summed up in the statement of claim as follows:

The indiscriminate excavation and removal of earth, stone and clay from the defendants' property without ensuring
sufficient support for the adjoining properties and without taking sufficient precautions and providing adequate support
or otherwise has caused the surrounding areas to be lowered thereby
1 MLJ cxv at cxxvi
causing the said premises (of the plaintiff) to sink and its walls to move from its original position and the premises has
been damaged.

What is clear, and this was conceded by counsel for the respondent is that the cause of action was founded
on the natural right of support. It was contended for the appellant that the main issue was the question of
negligence but the trial judge regarded the claim to be one of nuisance ie physical damage to adjoining land
and awarded damages accordingly. The appellant submitted that the parties were bound by their pleadings,
and since nuisance was not specifically pleaded, the appeal should be allowed by the Supreme Court.

In response to the submission by the appellant, the respondent argued that whilst the statement of claim
earlier set out has resulted in submissions which were largely directed towards negligence in the court
below, nevertheless, the facts of the case which showed negligence would also show nuisance. Leakey &
Ors v National Trust For Places of Historic Interest or Natural Beauty50 was cited as authority. Wan Suleiman
SCJ accepted the principle as laid down in Leakey and held that the difference between nuisance and
negligence was unimportant. His Lordship further said:
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... it matters not whether in this particular appeal before us nuisance was specifically pleaded or not. As has been
indicated earlier learned counsel for the respondent said that the cause of action is founded on the natural right of
support. That, in the context of the present case is the same as saying that the claim is based on nuisance. In any
event, it is clear beyond per adventure that the appellant/defendant was not caught by surprise and his defence was in
answer to what was alleged in the statement of claim. To paraphrase Leakey's case I can see no conceivable prejudice
to the defendants in this case that the word 'nuisance' has not been expressly set out in the statement of claim. 51

Wan Hamzah SCJ who agreed with Wan Suleiman SCJ merely said: 'In my opinion averment of nuisance
can be perceived from the allegations of the facts contained in the statement of claim although the word
'nuisance' is not stated.' 52

It appears from the above statement that once an action is founded on the natural right of support, this would
automatically encompass a claim in nuisance and negligence. With respect, it is submitted that this
proposition may set a very dangerous precedent as a plaintiff may get away with statement of claims that are
vague and lacks clarity and precision. Can an action that is founded on the wrongful dishonour of a cheque
be deemed to have been based on a claim for libel and breach of contract? If the answer is in the affirmative,
then the decision of the Federal Court in The Chartered Bank v Yong Chan needs to be reappraised.

It was correctly pointed out by Seah SCJ (dissenting) that it was apparent from the statement of claim that
the respondent sought to establish and the case the appellant had to meet was based on alleged negligent
acts of the
1 MLJ cxv at cxxvii
appellant and/or their agents resulting in the loss of support and damage. It is doubtful whether Wan
Suleiman SCJ was right is saying that the appellant was not caught by surprise and his answer was to what
was alleged in the statement of claim. On this point, Seah SCJ was of the view that it would be an
understatement to say that both learned counsel for the appellant and respondent were not taken by surprise
at this turn of event which was totally unexpected.

Furthermore, the defence raised before the trial judge was directed specifically against a claim in negligence.
We can see this from the part of the judgment by the trial judge which was quoted by Wan Suleiman SCJ
(delivering the judgment for the majority) as follows:

The defence of the defendants in this case appears to be that they have exercised all reasonable care, caution and
skill. Thus, the defendants have adduced evidence of soil investigation, subsequent sinking of piling sheets, placing
wedge of earth on them, etc. Examination and cross-examination of witnesses and submission from both parties were
invariably or almost exclusively directed to the causes to the subsidence and the consequential settlement. Would this
defence really absolve the defendants from liability in nuisance, even if it is established?

The answer to the question raised by the trial judge in the last sentence would be in the negative and this
goes to show that the appellant was indeed prejudiced. One cannot help but agree with Seah SCJ when he
said:

I am clearly of the opinion that the action framed on nuisance ought to be distinctly and expressly pleaded in the
statement of claim in order to give to the defendant a fair notice to meet it. A fortiori, the pleadings ought to specify
whether or not negligence is to be relied upon to establish it. In my opinion, if the respondent's case were put in the
alternative in this manner, the proceedings would no doubt have been developed on wholly different lines. The ambit of
discovery would have been enlarged and it is idle to speculate what would have happened if such a case has been
made out.
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Conclusion

What is clear from the foregoing is that the courts in cases like Gimstern Corp, 53 Janagi v Ong Boon Kiat54
and most recently in Lee Ah Chor55 have not minced words in upholding the principle that requires strict
compliance with this rule of pleadings. This stand will ensure that pleadings are not treated as pedantry or
mere formalism.

However, it is inevitable that exceptions be made to the above rule and here, we can see that the exceptions
that have been applied are not a closed category. The courts have also shown a tendency to allow points not
pleaded to be raised in particular circumstances as illustrated in KEP Mohamed Ali v KEP Mohamed
Ismail,56 OCBC v Philip Wee57 and Wisma
1 MLJ cxv at cxxviii
Punca Emas. 58 In fact, one view as expressed by Lindley LJ in Leakey's case has it that 'if this rule is strictly
adhered to, it would be a regrettable modern instance of the forms of action successfully clanking their
special chains.'

Until a definite boundary is drawn by our Supreme Court, these exceptions will remain a threat to this
important rule of pleadings and these exceptions will be applicable if similar facts were to arise. The
Supreme Court in Lee Ah Chor failed to mention any of these exceptions nor made any attempts to apply the
facts in that case to see if any of the exceptions that we have discussed earlier apply. This does not augur
well for certainty and may lead to situations where counsel may pay scant or no heed to this important
principle and as a result, the purpose of pleadings may not be achieved.

Where pleadings are not properly drawn, it cannot be said that the minds of the parties and of the judge are
directed to the issues at the time when evidence was tendered and admitted. This observation was made by
Wan Hamzah J in Saraswatee d/o Arumugam & Anor v Tan Chong & Motors Co Sdn Bhd.59 In other words,
when pleadings are not properly drawn, there can be no meeting of minds.

1 [1930] 1 KB 628.

2 Ibid at p 634.

3 See Pleadings: Principles and Practice, Sir Jack Jacob and Ian Goldrein (eds) (1990) at pp 2-4.

4 [1974] 1 MLJ 157.

5 See also Mat bin Lim & Anor v Ho Yut Kam & Anor [1967] 1 MLJ 13.

6 Act 254.

7 [1952] MLJ 152.

8 Ibid at p 163.

9 [1953] MLJ 172.

10 Ibid at p 174.

11 See also Janagi v Ong Boon Kiat [1971] 2 MLJ 196.

12 [1987] 1 MLJ 302.

13 Supra n 3 at p 9.

14 [1956] MLJ 45.

15 [1971] 2 MLJ 196.

16 [1990] 2 MLJ 152.

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17 [1991] 1 MLJ 428.

18 Ibid at p 431.

19 [1989] 2 MLJ 416.

20 [1990] 1 MLJ 156.

21 [1990] 3 MLJ 287.

22 [1968] 2 MLJ 251.

23 [1914] AC 461.

24 [1949] 2 All ER 692.

25 [1966] 1 MLJ 74.

26 Ibid at p 74.

27 [1989] 1 MLJ 457. Although Lord Oliver of Aylmerton cautioned at p 461 that the Privy Council has always been extremely
reluctant to permit the raising for the first time on an appeal of points which have not been previously raised and argued, it is
submitted that in all probability, the case was one where the party was trying to raise a point that was never pleaded.

28 Act 56/65.

29 PU(A) 268/70.

30 Clause 3 reads: 'subject to the provisions of cl 4 hereof, the purchaser agrees that the vendor may subject the land sold to
the purchaser to encumbrances at any time after the signing of the agreement.'

Clause 4 goes on to provide that: 'The land sold to the purchaser shall be free from any encumbrance immediately prior to the
handing over of vacant possession of the building to the purchaser.'

Rule 12(1) of the Housing Developers (Control & Licensing) Rules 1970 provides: 'Every contract of sale shall be in writing and
shall contain within its terms and conditions provisions to the following effect, namely:

...

(b) provisions binding on the licensed developer that immediately after a contract of sale has
been signed the licensed housing developer shall not subject the land sold to the purchaser to
any encumbrance without the prior approval of the purchaser.'

31 Act 118.

32 Supra n 27 at p 461.

33 Act 92.

34 Sections 65(1) and 90 of the Subordinate Courts Act 1948 as applicable to the sessions court and first class magistrate
respectively.

35 Sections 69 and 93 of the Subordinate Courts Act 1948 as applicable to the sessions court and first class magistrate
respectively.

36 See s 99A read with the Third Schedule of the Subordinate Courts Act 1948.

37 Act 91.

38 [1904] Ch D 123.
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39 [1956] MLJ 46.

40 Ibid at p 47.

41 [1982] 2 MLJ 232.

42 Act 4.

43 3 E & B 695.

44 See s 69(1)(b) of the Subordinate Courts Act 1948.

45 Supra n 7.

46 [1981] 2 MLJ 10.

47 [1984] 2 MLJ 1.

48 Op cit at p 11.

49 [1987] 1 MLJ 393.

50 [1980] 2 WLR 65.

51 Op cit at p 396.

52 Ibid at p 398.

53 Supra n 12.

54 Supra n 15.

55 Supra n 17.

56 Supra n 46.

57 Supra n 47.

58 Supra n 49.

59 [1985] 1 MLJ 327.