MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK AT SIBU
SUIT NO. SBW-22-5/1-2013
BETWEEN
1. MULOK ANAK TAMA
2. MULIE ANAK LINGGIR
3. UMPUT ANAK BALAJA
4. JOHNNY ANAK MAGGI
5. BADOL ANAK CHUNGAT
6. ANTHONY ANAK BANGAU
7. JARAU ANAK IPOK … PLAINTIFFS
(Suing on behalf of themselves and all the
residents of the longhouses known as
Rumah Mulok, Rumah Mulie, Rumah Juti,
Rumah Ilin, and Rumah Demong, Sungai Bawan,
96350 Balingian, Mukah Divisions, Sarawak
who are the occupiers, holders or claimants
of native customary rights land situated
within
the area the boundary of which is as edged
in red on the map marked “X” attached to the
Statement of Claim annexed hereto)
AND
1. PEMBINAAN KUANTITI SDN BHD
2. SARAWAK PLANTATION AGRICULTURE
29 DEVELOPMENT SDN
BHD
3. SUPERINTENDENT OF LANDS AND SURVEYS
MUKAH DIVISION
4. GOVERNMENT OF THE STATE
OF SARAWAK … DEFENDANTS
Judgment
[1] This is an application by
the 2nd defendant for the plaintiff to
furnish further and better particulars
under O 18 r 12 of the Rules of Court 2012. The matters for which the 2nd
defendant requests further and better particulars are:-
(i) the full names, identity card numbers and
addresses of the other inhabitants whom
the plaintiffs also represent in this action; and (ii) the precise locations of
the plaintiffs’ longhouses, namely, Rumah Mulok, Rumah Mulie, Rumah Juti, Rumah Ilin,
and Rumah Demong.
Further and Better Particulars of the Other
Inhabitants
[2] The 2nd defendant argues that the delivery of the
particulars of the full names, NRIC
numbers and the addresses of the other inhabitants of the said areas that the
plaintiffs purport to represent would substantially limit and clarify the plaintiffs’ assertion that they
represent these other plaintiffs.
Furthermore, these further and better
particulars do not constitute evidence but are necessary facts that were not
pleaded. It is in the interest of justice that they be furnished.
[3] With respect, I find no
merit in this request of the 2nd defendant. It is to be noted that the title to the plaintiffs’ writ
in this action states that the plaintiffs are suing on behalf of themselves and all the
residents of the longhouses known as
Rumah Mulok, Rumah Mulie, Rumah Juti, Rumah Ilin, and Rumah Demong, 96350 Balingian, Mukah Division,
Sarawak who are the occupiers, holders
or claimants of native customary rights land situated within the area the boundary of which is edged in red on the
map marked “X” attached to the Statement
of Claim annexed to the writ. Clearly, the plaintiffs are suing in a representative capacity in accordance
with O 15 r 12 ROC 2012.
The learned authors of the Malaysian Civil
Procedure 2013 commenting on the subject of “Representative Action” under O 15
r 12 ROC 2012 state as follows (at para 6.2.22):-
Where a person sues on behalf of himself and
others in a representative action under Order 15 r 12, he is the sole plaintiff
and the names and addresses of the others cannot be obtained: Leathley
v McAndrew [1875] WN 275.
[4] Following from what is stated above, in my
considered view, the plaintiffs are not
obliged to provide the particulars of the names and addresses of the others
whom they claim to represent. It is interesting that the 2nd 10 defendant has referred to the decision of Higgins v
Weekes [1889] 5 TLR 238 in its submission. It was said in that case that a
party suing in a representative capacity
action is usually only ordered to give the best particulars he can.
To my mind, instead of
supporting the case for the 2nd 14 defendant that it is entitled to further and better particulars of the
others, this decision fortifies the position that the plaintiffs suing in a
representative capacity need only to give the best particulars of the others as they can
and not their names and addresses. The 2nd defendant has cited a number of case
authorities on “further and better particulars”. With respect, I agree with the
plaintiffs that the said cases are not
cases where the parties sued in a representative capacity under O 15 r 2 ROC 2012 or Rules of
the High Court 1980. They are not
applicable to the issue at hand.
Particulars of the locations of the
Plaintiffs’ longhouses
[5] The 2nd 25 defendant also
asks for the particulars of the precise locations of the longhouses of the plaintiffs with
particular geographical reference to the longitude and latitude. With respect, I think
this is misconceived. In my view, the
particulars of the locations of the plaintiffs’ said longhouses are already disclosed
by the plaintiffs and made known to the 2nd defendant from the 3 map marked as
“X” attached to the plaintiffs Statement of Claim. Besides, it is to be noted
that based on the map marked “X” (also annexed an exhibit M-1 to the AIO), the
3rd and 4th 5 defendants were able to plot the specific location of the
communal land boundary or the “antara menoa” of the land over which the
plaintiffs and the residents of the longhouses are claiming communal native
customary rights in this case. This can be seen from the 2nd and 3rd defendants’
“Locality Diagram” dated 28.2.2013 (Survey Job/File reference No. 43/2013) i.e.
exhibit M-2 annexed to the AIO and to be found in the 2nd and 3rd defendants’
Bundle of Documents filed in this court. The 2nd and 3rd defendants in M-2 have
also shown the location and boundary of part of Lot 6 Bawan Land District (the disputed
area) which overlaps with part of the
land within the said communal land boundary (“antara menoa”) or the “pemakai menoa” of the plaintiffs’ said
longhouses. I agree with the plaintiffs that the above clearly shows that the required
particulars of the location and boundary or the extent of the land over which
the plaintiffs are claiming NCR and the locations of their respective
longhouses are already known to the defendants. To my mind, there is no necessity
to give further precise particulars like
the longitude and latitude references of the longhouses.
Conclusion
[6] For the reasons stated
above, I find the application of the 2nd 23 defendant
to be without basis. It is
dismissed with costs of RM3000.00 to the plaintiffs.
(Signed)
Supang Lian J
Judge
High Court
Sibu
Dated this 2 April
2014
Counsels
For the plaintiffs
… Mr. Abun Sui
(Messrs HNL &
Co., Advocates)
For the 2nd 15
defendant … Mr. Arthur Lee Cheng Chuan
(Messrs Arthur
Lee, Lin & Co., Advocates)
No comments:
Post a Comment