KANAHAMANI A/P MUTHUSAMY v 1. ) LOO ENG CHUAN 2. ) LOO TICK HOCK

Case Significance

An illustration of the strike-out jurisdiction under Order 18 rule 19 being used to dispose of a stale land-title claim that was unsupported by the founding agreements and exposed to limitation and res judicata objections, including the point that fraud cannot be introduced as a new claim in a reply.

This High Court decision at Shah Alam concerns applications to strike out a long-running land dispute. The plaintiff, suing as the administrator of his late father's estate, claimed title to a five-acre portion of estate land registered in the name of a deceased person whose estate was represented by the defendants as joint administrators. The claim was said to rest on a sale and purchase agreement and a supplementary agreement dated 1968 between the plaintiff's father and the deceased. The defendants applied to strike out the suit and to strike out those parts of the plaintiff's reply that pleaded fraud. A striking feature of the case was evidential: the 1968 agreements on which the claim depended were never produced in the affidavits, so their parties and terms were unknown, and the plaintiff instead relied on payment receipts and a memorandum of transfer. The court addressed several points: whether the claim was time-barred under sections 9(1) and 29 of the Limitation Act 1953; whether fraud could properly be introduced as a new claim in a reply to a defence rather than pleaded in the statement of claim; and whether the action was barred by res judicata and issue estoppel by reason of an earlier suit that had determined related questions, including the validity of the memorandum of transfer and the applicability of section 214A of the National Land Code to the estate land. The court also noted the practical impossibility of the primary relief sought, since registering the transfer of an undivided part of estate land would require the approval of the Estate Land Board and could not be effected in the manner claimed. Concluding that the pleadings and the plea of fraud could not stand, the court allowed both applications and struck out the suit, ordering costs of RM5,000 for each enclosure. The judgment is an illustration of the strike-out jurisdiction being used to dispose of a stale title claim unsupported by the very agreements on which it was founded.