MUHAMMAD IZ'AAN BIN AZALAN v NOORBYETTY BT MOHD NASIR

Case Significance

Illustrates that whether a public servant sued personally acted in an official or personal capacity — and so is entitled to State-funded representation under section 24(2) of the Government Proceedings Act 1956 — is a fact-sensitive question not to be resolved on affidavit alone but at a full trial.

This decision of the High Court of Malaya at Shah Alam concerns an appeal from a Sessions Court's refusal of an interlocutory application in a defamation action. The appellant, an advocate and solicitor who also practises as a syarie lawyer, had sued the respondent, a public servant serving as a Deputy Registrar of the Syariah Court, alleging that she had defamed him by making a complaint about his conduct as a syarie lawyer to the committee regulating syarie lawyers in Selangor. In the Sessions Court the appellant applied, invoking the court's inherent jurisdiction under Order 92 Rule 4 of the Rules of Court 2012, to restrain the State Legal Advisor's Chambers from representing the respondent; the Sessions Court dismissed that application, and the appellant appealed.

The question was whether the respondent had acted in her official capacity — so that the State could properly furnish her legal representation, subject to the certification requirement in section 24(2) of the Government Proceedings Act 1956 — or in a personal capacity, in which case such representation would not be available. The court held that this question could not be resolved summarily on the strength of an affidavit affirmed by the Chief Syarie Judge alone. There was other contemporaneous material, including an audio recording said to indicate the contrary, which had to be weighed at a full trial before it could be determined in which capacity the respondent had acted. Because the capacity issue was not clear-cut and turned on evidence yet to be tested, the court allowed the appeal with costs of RM1,000, leaving the representation question to abide the trial. The respondent, dissatisfied, filed a further appeal to the Court of Appeal. The judgment illustrates that a public servant's entitlement to State-funded representation depends on a fact-sensitive inquiry into the capacity in which she acted.