Basic about Summary judgment

Example: I would like to obtain judgment from the court without trial because the defendant has no defence and there is no triable issues.

The summary judgment provided in Order 14 of the Rules of The High Court 1980. The procedure is to enable plaintiff to obtain early judgment in cases where the defendant has no hope of success and any defence he raises would merely have the effect of delaying judgment (Jones v Stone). The summary judgment must file when the defendant has enter the appearance.

Reasons for summary judgment:
1. such defence is just a mock defence (pembelaan olok-olok)
2. that defence only a mere denial
3. there is no triable issues

What is 'triable issues' ?
It is an issue that the court cannot decided without hearing the disputes (defences and evidences) from both parties and if made, it will causes injustice to the other parties.

When to file the summary judgment?

If has been seen in the brief that the defendant cannot defend themselves. For example, in civil action (summon) by bank, where the debtor failed to pay the debts within the promised period. So, the plaintiff will file the summon in chamber for summary judgment. So, now, the summary judgment has to be heard by judge (in chamber), not in open court.

So, in that situation, the plaintiff must prove the case on the probability (must prove that the defendant has no defence). The plaintiff must prove it by supporting an affidavit that the defendant has no defence. Examples, all below should be exhibits:
1. the loan agreement become exhibit of affidavit
2. attach/show the receipt of loan payments
3. attach the reminders from the bank
4. attach the notice of demand

So, the plaintiff will show to the court that there is a cause of action to sue the defendant. ( the cause of action is the plaintiff has right to sue the defendant because the defendant failed to pay the credit).

When the summon in chamber has been submitted, the judge will read all the document, so, if there is the triable issue, or for example if the defendant has the reason that the bank has give him the re-schedule of the loan, the plaintiff cannot obtain the summary judgment. ( the court will set a side the summary judgment, but it does not mean that the plaintiff has lost the case, but the judgment will be given after the trial of the case. However, if the court held that the defendant has no defence, plaintiff will obtain the summary judgment after the court hearing the case in chamber.

Read more...

Basic about Notice of appearance

Order 12 Rule 4 of Rules of High Court 1980 provided about the notice of appearance. It is the rule about writ. It provides if the defendant failed to file the notice of appearance, the plaintiff will obtain the judgment in default (JID). Meanwhile, "notice of conditional appearance" is an indication that the defendant will objection to the jurisdiction of the court before the case start (in condition that the objection is going to be overruled by the court. In the case of Bank Negara v Gerald Glpsy the court held that plaintiff must file the appearance although defendant disagree that the courts has not have jurisdiction. But, the defendant will filed in the notice " notice of conditional appearance". It must file within 8 days. So, if there is not submitted within the day, the plaintiff will obtain JID. The short services only in two days. Moreover, if the defendant did not file the notice of defence, the plaintiff can file the JID.

How to file JID?
Plaintiff can file the JID when the other parties does not file the appearance within 8 days. So, the plaintiff will file the draft order of JID and the registrar must file in the JID to the defendant. But before that, the certificate of non-appearance also have to file in. Meanwhile, the defendant will file the summon in chamber to set aside the JID.


* this is only for basic understanding, for more info's please refer the books and ask your lecturer.

Read more...

Selamat Hari Raya Aidiladha

Malaysian Law Student wishes you Selamat Hari Raya Aidiladha to all Muslim around the world.

Read more...

How to build up the cause of action?

In easy words, the cause of action (COA) is a set of circumstances which brings the P to sue the D and the P is going to win. How to build up the cause of action? (without fabrication).

(1) get the evidence
(2) prove the fact
(lawyers should be able to take up the case, confident and win the case)
(3) Client: full story A to Z (whether there is a COA or not)

Example:

~what is the law to be applied? - Law Reform (Marriage and Divorce) Act
~Under section? Cases? What the remedies? (divorce or damages(money) )

~ Is there any gaps of facts that the client didn't tell? (if so, persuade client)

So, for the brief :

(1) summary

(2) structure frame

(3) fact

(4) evidence

(5) relevant Acts

(6) cases

(7) remedies

At the end of the brief, is there a cause of action or not? If no COA, forget the divorce! haha.. (because the court cannot provide any remedy if there is no COA).

Read more...

Basic about an arrest by Police

Basically, Article 5(1) of the Federal Constitution states that no person is to be deprived of his personal liberty save in accordance with law. Meanwhile, in Halsbury's Law defined arrest consists in the seizure or touching of a person's body with a view to his restraint. In the case Alderson v Booth 1969 the court held that words however amount to arrest it, in the circumstances of the case, they are calculated to bring, and do bring, to a person's notice that he is under compulsion and he thereafter submits to the compulsion. (problem always arise when the arrest is without warrant).

Who can arrest? Person who may effect an arrest are police officer, penghulu (village leader), private person and magistrate or Justice of the Peace. Section 23 of the Criminal Procedure Code allows a police to arrest without warrant. An arrest maybe made in relation to any seizable offence committed anywhere in Malaysia. What is seizable offence? S. 2 (1) CPC defined it as an offence and a "seizable case" which police may ordinarily arrest without a warrant according to the third collum of the first schedule. Whether there is or not a First Information Report is beside the point as the first information report is not a condition precedent to the setting in motion of a criminal investigation. This holds true for police officers as far as policing and enforcement in general is concerned, and the police knowing of a design to commit any seizable offence may arrest without orders from a Magistrate and without a warrant the person so designing if it appears to such officer that the commission of the offence cannot otherwise be prevented.

Moreover, arrest and investigation are not the same, though they are interrelated. Police investigation normally commences when the police have information whether receive through their own wits or intelligence (credible information) or reasonable suspicion. Investigation is also prompted if there is a First Information Report (reasonable complaint) made to them. In non-seizable cases, s 108 of the CPC clearly stipulates that an order to investigate from the Public Prosecutor is first needed to enable the police to exercise their special powers in relation to police investigations such as recording statements from witnesses under s 112 of the CPC. In seizable cases, ss 109 and 110 of the CPC state that the Police whose rank is at least a sergeant are not required to obtain an order to investigate from the Public Prosecutor and may exercise their special powers relating to police investigations. However, the police must forthwith report those cases to the Public Prosecutor unless the offence is of the type the Public Prosecutor has directed need not be reported to him.

A police officer whose rank is not less than a sergeant or the Officer in Charge of the Police Station may proceed with the investigation but if they deputed the task to a lower ranking subordinate police officer, such subordinate officer shall withhold from resorting to the special powers of investigation provided under ss 111 (summoning witnesses), 112 (interviewing witnesses), 116 (search of premises) and 117 (further detention of suspect). These are pro-active powers the Police have to ensure they can get hold of the evidence.

Read more...