CORNELIUS JIMBANGAN @ MINDOLOS vs JOSEPH CRISPIN,GEORGE DINGLE LIGUNJANG (MICHAEL PERSIUS UBU as 3rd Party)- (MJLR2009 b14) Rahman Sebli,21/5/2009,SS - Defamation,Civil Procedure
[K22-182-2005]
1
5 MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK
AT KOTA KINABALU
SUIT NO.K22-182 OF 2005
10
BETWEEN
CORNELIUS JIMBANGAN .. PLAINTIFF
@ MINDOLOS
15
AND
JOSEPH CRISPIN .. 1ST DEFENDANT
GEORGE DINGLE LIGUNJANG .. 2ND 20 DEFENDANT
AND
MICHAEL PERSIUS UBU .. THIRD PARTY
25
GROUNDS OF DECISION
This is an application by the defendants to strike out the Third
30 Party’s counterclaim and defence under Order 18 rule 19(1)
(a) (b) and (d) of the Rules of the High Court, 1980 (the
Rules).
[K22-182-2005]
2
The background facts leading to this application are as follows.
In October 2005 the plaintiff sued the defendants 35 for unlawfully
transferring into their names his land under Native Title
No.213022827. In the suit the plaintiff alleged that his
signatures on the Memorandum of Transfer and the Loan
Agreement were forged by the defendants. He pleaded that it
40 was never his intention to sell the land to the defendants, who
were total strangers to him. He therefore asked for an order
that the title Deed of the land be returned to him and that he
be reinstated as the registered owner of the land.
45 This allegation took the defendants by surprise because to
their knowledge they had at the request of the Third Party,
who is an advocate and solicitor, given a loan of RM15,000.00
to the plaintiff through the Third Party whereby the plaintiff
agreed to repay a sum of RM15,640.00 within 6 months with
50 the land as security. It was their pleaded case that the
execution of the loan agreement was witnessed by the Third
Party. When the plaintiff failed to repay the loan despite being
given an extension of time, the defendants bought over the
said land for RM38,000.00. However only RM23,000.00 was
55 paid, being the difference between the purchase price of
RM38,000.00 and the loan amount of RM15,000.00. By
paragraph 20 of the Statement of Claim it was pleaded that the
RM23,000.00 was handed to the Third Party to be delivered to
the plaintiff.
60
[K22-182-2005]
3
The land was subsequently transferred to the defendants by
way of a Memorandum of Transfer dated 2nd November 1994
which was executed in the presence of the Third Party.
The defendants admitted that they never met 65 the plaintiff in
person but pleaded that all communications and dealings in
connection with the purchase of the land were made through
the Third Party. By paragraph 19 of the Statement of Claim it
was pleaded that although the plaintiff was not present at the
70 time they executed the Memorandum of Transfer they were
told by the Third Party that the plaintiff had signed the
Memorandum of Transfer in his presence.
On the pleadings it is obvious that the defendants had left it to
75 the Third Party to do what was necessary in order to vest in
them good title to the land, free from all encumbrances.
Hence when the Writ of Summons and Statement of Claim
were served on them by the plaintiff the defendants found it
80 necessary to take out third party proceedings against the Third
Party claiming to be indemnified for any loss in the event the
plaintiff was successful in his suit against them. According to
the defendants their action was purely to protect their interest
in the face of the suit brought against them by the plaintiff and
85 not to defame the Third Party. The full particulars of the Third
Party’s alleged breaches of duty as pleaded by the defendants
are as follows:
[K22-182-2005]
4
(a) Representing to the defendants that the plaintiff
wanted a loan of RM15,000.00 90 with the said land
as security.
(b) Failing or neglecting to pay the loan amount of
RM15,000.00 or any part thereof to the plaintiff.
(c) Failing to attend to the proper execution of the loan
95 agreement.
(d) Representing to the defendants that the plaintiff
was willing to sell and transfer the land for the total
purchase price of RM38,000.00 of which the
balance of RM23,000.00 only was payable.
100 (e) Advising the defendants to purchase the land from
the plaintiff.
(f) Failing to advise the defendants not to purchase
the land and failing to advise the defendants not to
proceed with the transfer of the said land to the
105 defendants.
(g) Failing to attend to the proper execution of the
Memorandum of Transfer.
(h) Representing that the plaintiff had executed the
Memorandum of Transfer and duly witnessing what
110 purported to be the plaintiff’s signature on the
Memorandum of Transfer.
(i) Failing to pay the balance of the purchase price of
RM23,000.00 or any part thereof to the plaintiff.
(j) Attending to registration of the Memorandum of
115 Transfer when the documentation was not in order.
[K22-182-2005]
5
(k) Failing to inform the defendants that the plaintiff
had not executed the Memorandum of Transfer or
that the documentation was not in order.
(l) Failing to ensure that the defendants purchased
the land free from 120 all encumbrances.
(m) Failing to ensure that there was no omission,
forgery, fraud or wrongdoing committed in the
execution and registration of the Memorandum of
Transfer.
125
As it turned out the plaintiff’s claim against the defendants was
dismissed by Justice Ian Chin on 25.1.2007 on the ground that
his action was time barred. In consequence the defendants’
Third Party proceeding against the Third Party was also struck
130 out as it was conceded by the defendants that their claim
should be struck out in the event the plaintiff’s claim was
dismissed. The plaintiff was ordered to bear the costs of both
proceedings.
135 Despite the striking out of the Third Party proceedings the
Third Party decided to pursue his counterclaim against the
defendants for damages. His pleaded case is that the
defendants’ allegations in their Statement of Claim in the Third
Party proceedings were baseless and that the suit was
140 malicious and defamatory and calculated to disparage him in
his profession as an advocate and solicitor. The Third Party
claimed that the matters alleged by the defendants in their
natural and ordinary meaning were understood to mean that
he was unethical, untrustworthy, incompetent, reckless,
[K22-182-2005]
6
negligent, and a criminal in that he had forged 145 the signatures
of the plaintiff and misappropriated the monies entrusted to
him for his own benefit.
The defendants on the other hand contended that the matters
150 alleged by the Third Party to be defamatory were published on
an occasion of absolute privilege and therefore not actionable
in a court of law.
The question is whether the defendants’ allegations in the
155 Statement of Claim are covered by absolute privilege. If so the
Third Party has no cause of action against the defendants no
matter how defamatory the allegations are. In Royal Aquarium
v Parkinson [1892] 1 QB 431 Lopes LJ said at page 451:
160 “The authorities established beyond all question this: that neither party,
witness, counsel, jury, nor judge, can be put to answer civilly or criminally
for words spoken in office; that no action of libel or slander lies, whether
against judges, counsel, witnesses, or parties, for words written or
spoken in the course of any proceeding before any court recognized by
165 law, and this though the words were written or spoken maliciously,
without any justification or excuse, and from personal ill will or anger
against the party defamed.”
The rationale for this protection is explained by Pigott CB in
170 Kennedy v Hilliard (1859) 10 Ir CL Rep (NS) 195 as being
‘founded on public policy, which requires that a judge in
dealing with the matter before him, a party in preferring or
resisting a legal proceeding, and a witness in giving evidence,
oral or written, in a court of justice, shall do so with his mind
[K22-182-2005]
7
uninfluenced by the fear of an action 175 for defamation or
prosecution for libel.’
The rule of absolute privilege falls into three categories: see
Lincoln v Daniels [1962] 1 QB 238 where Devlin LJ said at
180 pages 257-258:
“This (the first) category covers all matters which are done coram judice.
This extends to everything that is said in the course of proceedings by
judges, parties, counsel and witnesses, and includes the contents of
185 documents put in as evidence. The second covers everything that is
done from the inception of the proceedings onwards and extends to all
pleadings and other documents brought into existence for the purpose of
proceedings and starting with the writ or other document which institutes
the proceedings. The third category is the most difficult of the three to
190 define. It is based on the authority of Watson v M Ewan [1905] AC 480 in
which the House of Lords held that the privilege attaching to evidence
which a witness give coram judice extended to the precognition of proof
of that evidence taken by a solicitor. It is immaterial whether the proof is
or is not taken in the course of proceedings. In Beresford v White (1914)
195 30 LTR 59 the privilege was held to attach to what was said in the course
of an interview by a solicitor with a person who might or might not be in a
position to be a witness on behalf of his client in contemplated
proceedings.”
200 The defence of absolute privilege is recognised by the
Malaysian Courts as can be seen in Thiruchelvasegaram a/l
Manickavasagar v Mahadevi a/p Nadchatiram [2000] 5 MLJ
465 where James Foong J (as he then was) held:
[K22-182-2005]
8
“The submissions of defendant, however defamatory 205 they were of the
plaintiff, are protected by absolute privilege. The court accepted the
submission when tendered. When this happened, the statements
contained in these documents must be considered to be made in the
course of legal proceedings.”
210
The allegations which the Third Party claims to be defamatory
are all contained in the defendants’ Statement of Claim. They
were necessary to protect the defendants’ interest in the face
of the suit brought against them by the plaintiff. As such they
215 fall squarely within the second category of absolute privilege
mentioned by Devlin LJ in Lincoln and are therefore insulated
from defamation action.
Learned counsel for the Third Party cited the case of Joceline
220 Tan Poh Choo & Ors v Muthusamy [2003] 4 MLJ 494 for the
proposition that the defendants’ Statement of Claim is not
protected by privilege as it had not been read out in open
court. With due respect learned counsel has misconstrued and
misapplied Joceline Tan Poh Choo. That case concerns the
225 publication in the newspaper of part of the amended
Statement of Claim which had not been read out in open court.
It was for that reason that the court held that the appellant was
not entitled to rely on the statutory defence of absolute
privilege, not because the amended Statement of Claim had
230 not been read out in open court.
The point in contention in that case was whether the
newspaper report should only be confined to what was publicly
heard in open court and not to matters contained in documents
[K22-182-2005]
9
filed in court, and not read in open court. The 235 case of Stern v
Piper [1996] 2 All ER 385 was cited with approval where Hirst
LJ said at pages 394-395:
“However, I think it is significant that privilege only protects reports of
240 proceedings taking place in open court, and that its foundation is that
those proceedings took place in public so that the public in general
should have access to fair and accurate reports thereof (see Webb v
Times Publishing Co Ltd [1960] 2 All ER 789, [1960] 2 QB 535) This is a
consideration of public policy, and does not extend to court documents
245 which have not been brought into the public arena.”
In the present case the question of publication of the
defendants’ allegations in the newspaper does not arise at all.
Joceline Tan Poh Choo is therefore irrelevant as the facts are
250 distinguishable.
If counsel is right in her submission it would mean that litigants
who file court papers for purposes of court proceedings are
exposing themselves to civil and even criminal action if the
255 contents of the documents are found to be defamatory. That of
course will be contrary to the principle expounded by Lopes LJ
in Royal Aquarium and cannot be a correct proposition of law.
The law on Order 18 rule 19 of the Rules is settled. A pleading
260 should only be struck out if it is shown that it is on the face of it
‘obviously unsustainable’: see Bandar Builder Sdn Bhd v
United Malayan Banking Corporation [1993] 3 MLJ 35. In
Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1 Lord
Diplock cautioned that the power to dismiss an action
[K22-182-2005]
10
summarily without permitting the plaintiff to proceed 265 to trial is a
drastic power and should be exercised with the utmost
caution. The court will not permit a plaintiff to be ousted from
the judgment seat, so to speak, except where the cause of
action is obviously bad and almost ‘incontestably bad’: see
270 Dyson v AG [1911] 1 KB 410.
If the pleading is so obviously frivolous that to advance it
forward must be an abuse of the court process the claim will
be struck out: see Young v Holloway [1895] P 87. The court
275 will always guard its machinery from being used as a means of
vexation and oppression in the process of litigation: see Castro
v Murray [1875] 10 Ex 213.
In my view the Third Party’s counterclaim against the
280 defendants discloses no reasonable cause of action, is
scandalous, frivolous or vexatious and is an abuse of the court
process. The counterclaim (and the defence) is on the face of
it obviously unsustainable and ought to be struck out with
costs.
285
(DATO’ ABDUL RAHMAN SEBLI)
Judicial Commissioner
290 High Court Kota Kinabalu.
Dated: 21st May 2009
295
[K22-182-2005]
11
For the Defendants: Mr. Michael Dennis Tan
Messrs. Michael Denis Tan & Co
For the Third Party: Ms. Munirah Bt. 300 Ahmad Bashir Khan
Messrs. Angela Ubu & Associates
1
5 MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK
AT KOTA KINABALU
SUIT NO.K22-182 OF 2005
10
BETWEEN
CORNELIUS JIMBANGAN .. PLAINTIFF
@ MINDOLOS
15
AND
JOSEPH CRISPIN .. 1ST DEFENDANT
GEORGE DINGLE LIGUNJANG .. 2ND 20 DEFENDANT
AND
MICHAEL PERSIUS UBU .. THIRD PARTY
25
GROUNDS OF DECISION
This is an application by the defendants to strike out the Third
30 Party’s counterclaim and defence under Order 18 rule 19(1)
(a) (b) and (d) of the Rules of the High Court, 1980 (the
Rules).
[K22-182-2005]
2
The background facts leading to this application are as follows.
In October 2005 the plaintiff sued the defendants 35 for unlawfully
transferring into their names his land under Native Title
No.213022827. In the suit the plaintiff alleged that his
signatures on the Memorandum of Transfer and the Loan
Agreement were forged by the defendants. He pleaded that it
40 was never his intention to sell the land to the defendants, who
were total strangers to him. He therefore asked for an order
that the title Deed of the land be returned to him and that he
be reinstated as the registered owner of the land.
45 This allegation took the defendants by surprise because to
their knowledge they had at the request of the Third Party,
who is an advocate and solicitor, given a loan of RM15,000.00
to the plaintiff through the Third Party whereby the plaintiff
agreed to repay a sum of RM15,640.00 within 6 months with
50 the land as security. It was their pleaded case that the
execution of the loan agreement was witnessed by the Third
Party. When the plaintiff failed to repay the loan despite being
given an extension of time, the defendants bought over the
said land for RM38,000.00. However only RM23,000.00 was
55 paid, being the difference between the purchase price of
RM38,000.00 and the loan amount of RM15,000.00. By
paragraph 20 of the Statement of Claim it was pleaded that the
RM23,000.00 was handed to the Third Party to be delivered to
the plaintiff.
60
[K22-182-2005]
3
The land was subsequently transferred to the defendants by
way of a Memorandum of Transfer dated 2nd November 1994
which was executed in the presence of the Third Party.
The defendants admitted that they never met 65 the plaintiff in
person but pleaded that all communications and dealings in
connection with the purchase of the land were made through
the Third Party. By paragraph 19 of the Statement of Claim it
was pleaded that although the plaintiff was not present at the
70 time they executed the Memorandum of Transfer they were
told by the Third Party that the plaintiff had signed the
Memorandum of Transfer in his presence.
On the pleadings it is obvious that the defendants had left it to
75 the Third Party to do what was necessary in order to vest in
them good title to the land, free from all encumbrances.
Hence when the Writ of Summons and Statement of Claim
were served on them by the plaintiff the defendants found it
80 necessary to take out third party proceedings against the Third
Party claiming to be indemnified for any loss in the event the
plaintiff was successful in his suit against them. According to
the defendants their action was purely to protect their interest
in the face of the suit brought against them by the plaintiff and
85 not to defame the Third Party. The full particulars of the Third
Party’s alleged breaches of duty as pleaded by the defendants
are as follows:
[K22-182-2005]
4
(a) Representing to the defendants that the plaintiff
wanted a loan of RM15,000.00 90 with the said land
as security.
(b) Failing or neglecting to pay the loan amount of
RM15,000.00 or any part thereof to the plaintiff.
(c) Failing to attend to the proper execution of the loan
95 agreement.
(d) Representing to the defendants that the plaintiff
was willing to sell and transfer the land for the total
purchase price of RM38,000.00 of which the
balance of RM23,000.00 only was payable.
100 (e) Advising the defendants to purchase the land from
the plaintiff.
(f) Failing to advise the defendants not to purchase
the land and failing to advise the defendants not to
proceed with the transfer of the said land to the
105 defendants.
(g) Failing to attend to the proper execution of the
Memorandum of Transfer.
(h) Representing that the plaintiff had executed the
Memorandum of Transfer and duly witnessing what
110 purported to be the plaintiff’s signature on the
Memorandum of Transfer.
(i) Failing to pay the balance of the purchase price of
RM23,000.00 or any part thereof to the plaintiff.
(j) Attending to registration of the Memorandum of
115 Transfer when the documentation was not in order.
[K22-182-2005]
5
(k) Failing to inform the defendants that the plaintiff
had not executed the Memorandum of Transfer or
that the documentation was not in order.
(l) Failing to ensure that the defendants purchased
the land free from 120 all encumbrances.
(m) Failing to ensure that there was no omission,
forgery, fraud or wrongdoing committed in the
execution and registration of the Memorandum of
Transfer.
125
As it turned out the plaintiff’s claim against the defendants was
dismissed by Justice Ian Chin on 25.1.2007 on the ground that
his action was time barred. In consequence the defendants’
Third Party proceeding against the Third Party was also struck
130 out as it was conceded by the defendants that their claim
should be struck out in the event the plaintiff’s claim was
dismissed. The plaintiff was ordered to bear the costs of both
proceedings.
135 Despite the striking out of the Third Party proceedings the
Third Party decided to pursue his counterclaim against the
defendants for damages. His pleaded case is that the
defendants’ allegations in their Statement of Claim in the Third
Party proceedings were baseless and that the suit was
140 malicious and defamatory and calculated to disparage him in
his profession as an advocate and solicitor. The Third Party
claimed that the matters alleged by the defendants in their
natural and ordinary meaning were understood to mean that
he was unethical, untrustworthy, incompetent, reckless,
[K22-182-2005]
6
negligent, and a criminal in that he had forged 145 the signatures
of the plaintiff and misappropriated the monies entrusted to
him for his own benefit.
The defendants on the other hand contended that the matters
150 alleged by the Third Party to be defamatory were published on
an occasion of absolute privilege and therefore not actionable
in a court of law.
The question is whether the defendants’ allegations in the
155 Statement of Claim are covered by absolute privilege. If so the
Third Party has no cause of action against the defendants no
matter how defamatory the allegations are. In Royal Aquarium
v Parkinson [1892] 1 QB 431 Lopes LJ said at page 451:
160 “The authorities established beyond all question this: that neither party,
witness, counsel, jury, nor judge, can be put to answer civilly or criminally
for words spoken in office; that no action of libel or slander lies, whether
against judges, counsel, witnesses, or parties, for words written or
spoken in the course of any proceeding before any court recognized by
165 law, and this though the words were written or spoken maliciously,
without any justification or excuse, and from personal ill will or anger
against the party defamed.”
The rationale for this protection is explained by Pigott CB in
170 Kennedy v Hilliard (1859) 10 Ir CL Rep (NS) 195 as being
‘founded on public policy, which requires that a judge in
dealing with the matter before him, a party in preferring or
resisting a legal proceeding, and a witness in giving evidence,
oral or written, in a court of justice, shall do so with his mind
[K22-182-2005]
7
uninfluenced by the fear of an action 175 for defamation or
prosecution for libel.’
The rule of absolute privilege falls into three categories: see
Lincoln v Daniels [1962] 1 QB 238 where Devlin LJ said at
180 pages 257-258:
“This (the first) category covers all matters which are done coram judice.
This extends to everything that is said in the course of proceedings by
judges, parties, counsel and witnesses, and includes the contents of
185 documents put in as evidence. The second covers everything that is
done from the inception of the proceedings onwards and extends to all
pleadings and other documents brought into existence for the purpose of
proceedings and starting with the writ or other document which institutes
the proceedings. The third category is the most difficult of the three to
190 define. It is based on the authority of Watson v M Ewan [1905] AC 480 in
which the House of Lords held that the privilege attaching to evidence
which a witness give coram judice extended to the precognition of proof
of that evidence taken by a solicitor. It is immaterial whether the proof is
or is not taken in the course of proceedings. In Beresford v White (1914)
195 30 LTR 59 the privilege was held to attach to what was said in the course
of an interview by a solicitor with a person who might or might not be in a
position to be a witness on behalf of his client in contemplated
proceedings.”
200 The defence of absolute privilege is recognised by the
Malaysian Courts as can be seen in Thiruchelvasegaram a/l
Manickavasagar v Mahadevi a/p Nadchatiram [2000] 5 MLJ
465 where James Foong J (as he then was) held:
[K22-182-2005]
8
“The submissions of defendant, however defamatory 205 they were of the
plaintiff, are protected by absolute privilege. The court accepted the
submission when tendered. When this happened, the statements
contained in these documents must be considered to be made in the
course of legal proceedings.”
210
The allegations which the Third Party claims to be defamatory
are all contained in the defendants’ Statement of Claim. They
were necessary to protect the defendants’ interest in the face
of the suit brought against them by the plaintiff. As such they
215 fall squarely within the second category of absolute privilege
mentioned by Devlin LJ in Lincoln and are therefore insulated
from defamation action.
Learned counsel for the Third Party cited the case of Joceline
220 Tan Poh Choo & Ors v Muthusamy [2003] 4 MLJ 494 for the
proposition that the defendants’ Statement of Claim is not
protected by privilege as it had not been read out in open
court. With due respect learned counsel has misconstrued and
misapplied Joceline Tan Poh Choo. That case concerns the
225 publication in the newspaper of part of the amended
Statement of Claim which had not been read out in open court.
It was for that reason that the court held that the appellant was
not entitled to rely on the statutory defence of absolute
privilege, not because the amended Statement of Claim had
230 not been read out in open court.
The point in contention in that case was whether the
newspaper report should only be confined to what was publicly
heard in open court and not to matters contained in documents
[K22-182-2005]
9
filed in court, and not read in open court. The 235 case of Stern v
Piper [1996] 2 All ER 385 was cited with approval where Hirst
LJ said at pages 394-395:
“However, I think it is significant that privilege only protects reports of
240 proceedings taking place in open court, and that its foundation is that
those proceedings took place in public so that the public in general
should have access to fair and accurate reports thereof (see Webb v
Times Publishing Co Ltd [1960] 2 All ER 789, [1960] 2 QB 535) This is a
consideration of public policy, and does not extend to court documents
245 which have not been brought into the public arena.”
In the present case the question of publication of the
defendants’ allegations in the newspaper does not arise at all.
Joceline Tan Poh Choo is therefore irrelevant as the facts are
250 distinguishable.
If counsel is right in her submission it would mean that litigants
who file court papers for purposes of court proceedings are
exposing themselves to civil and even criminal action if the
255 contents of the documents are found to be defamatory. That of
course will be contrary to the principle expounded by Lopes LJ
in Royal Aquarium and cannot be a correct proposition of law.
The law on Order 18 rule 19 of the Rules is settled. A pleading
260 should only be struck out if it is shown that it is on the face of it
‘obviously unsustainable’: see Bandar Builder Sdn Bhd v
United Malayan Banking Corporation [1993] 3 MLJ 35. In
Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1 Lord
Diplock cautioned that the power to dismiss an action
[K22-182-2005]
10
summarily without permitting the plaintiff to proceed 265 to trial is a
drastic power and should be exercised with the utmost
caution. The court will not permit a plaintiff to be ousted from
the judgment seat, so to speak, except where the cause of
action is obviously bad and almost ‘incontestably bad’: see
270 Dyson v AG [1911] 1 KB 410.
If the pleading is so obviously frivolous that to advance it
forward must be an abuse of the court process the claim will
be struck out: see Young v Holloway [1895] P 87. The court
275 will always guard its machinery from being used as a means of
vexation and oppression in the process of litigation: see Castro
v Murray [1875] 10 Ex 213.
In my view the Third Party’s counterclaim against the
280 defendants discloses no reasonable cause of action, is
scandalous, frivolous or vexatious and is an abuse of the court
process. The counterclaim (and the defence) is on the face of
it obviously unsustainable and ought to be struck out with
costs.
285
(DATO’ ABDUL RAHMAN SEBLI)
Judicial Commissioner
290 High Court Kota Kinabalu.
Dated: 21st May 2009
295
[K22-182-2005]
11
For the Defendants: Mr. Michael Dennis Tan
Messrs. Michael Denis Tan & Co
For the Third Party: Ms. Munirah Bt. 300 Ahmad Bashir Khan
Messrs. Angela Ubu & Associates
