Muhamad Zuki Johari & Anor

v. Shaari Amat (Mendakwa Sebagai Wakil Diri Kepada

[2021] MLRHU 1209 Pesaka Mohamad Azril Shaari) & Ors pg 1

MUHAMAD ZUKI JOHARI & ANOR

v.
SHAARI AMAT (MENDAKWA SEBAGAI WAKIL DIRI
KEPADA PESAKA MOHAMAD AZRIL SHAARI) & ORS

High Court Malaya, Taiping

Muniandy Kannyappan JC
[Civil Appeal Nos: AB-12ANCVC-2-11/2020 & AB-12ANCVC-3-
11/2020]
29 August 2021

Case(s) referred to:

Ang Hoi Yin v. Sim Sie Hau [1968] 1 MLRH 386; [1969] 2 MLJ 3 (refd)
Bandar Builders Sdn Bhd v. UMBC Berhad (1993) 1 MLRA 611 [1993] 1 MLRA
611; [1993] 3 MLJ 36; [1993] 4 CLJ 7; [1993] 2 AMR 1969 (refd)
Chia Foon Sian & Anor v. Lam Chew Fah & Anor [1955] 1 MLRH 432; [1955] 1
MLJ 203 (refd)
Comptroller of Income Tax v. Yan Tai Min [1964] 1 MLRH 443; [1965] 1 MLJ
255 (refd)
Ingall v. Moran [1944] 1 KB 160 (refd)
P Govindasamy Pillay & Sons v. Lok Seng Chai & Ors [1961] 1 MLRH 776 (refd)
Sivarasa Rasiah & Ors v. Che Hamzah Che Ismail & Ors [2012] 1 MLRA 255;
[2012] 1 MLJ 473; [2012] 1 CLJ 75 (refd)

Legislation referred to:

Civil Law Act 1956, ss 7, 8(1), (3)
Probate And Administration Act 1959, ss 2, 59
Rules of Court 2012, O 1A, O 15 r 6A(2), (3), O 18 r 19(1)(b), (d), O 20 r 5(4),
O 42 r 7, O 71 rr 4, 5, O 92 r 4

Counsel:
For the plantiff: R Kamalavani; M/s PR Manecksha & Assoc
For the respondent: Khairul Aiman Kamar Rozaman; M/s G Dorai & Co

[Order accordingly.]

JUDGMENT

Muniandy Kannyappan JC:

[1] Two appeals were lodged with this court against decision of the sessions
court judge (SCJ) at Kuala Kangsar sessions court. Case AB-12ANCVC-2-
11/2020 pertains an order by SCJ allowing an application to amend summons
and statement of claim (SOC) dated 20 April 2017, its intitulement and
description of capacity to sue at para 1 of SOC. Another is case No AB-
12ANCVC-3-11/2020 which relates to an order by SCJ who did not allow
 Muhamad Zuki Johari & Anor
v. Shaari Amat (Mendakwa Sebagai Wakil Diri Kepada
pg 2 Pesaka Mohamad Azril Shaari) & Ors [2021] MLRHU 1209

application by the defendants to strike out the summons and SOC by plaintiff
for want of legal standing.

[2] Essentially both appeals concern locus standi (used interchangeably with
legal standing) of the plaintiff to sue as personal representative of his deceased
son who had died resulting from a motor vehicle accident.

[3] Thus, the pivotal issue decisive of the appeals is whether plaintiff Shaari bin
Amat who had originally sued as wakil diri kepada pesaka Mohamad Azril
bin Shaari, simati had extracted grant of letters of administration (LA) on
behalf of his deceased son which would vest in him right to a cause of action
against the defendants.

[4] It is the contention of appellants (who are defendants at sessions court

proceeding) that in view of the fact that LA was not extracted, the plaintiff as
father or parent of deceased son lacks locus standi to institute civil action
against defendants for damages in negligence. The contention is premised on
the principle distilled from case authorities that only upon extraction of grant
of LA, the plaintiff is clothed with capacity to sue defendants on behalf of his
deceased son.

[5] Surveying chronology of events, fact of the matter is, an order for the grant
of LA was made by the high court at Kuala Lumpur on 13 July 2015. Civil
action was instituted against defendants at the sessions court on 20 April 2017.
The extraction of LA was only done on 14 May 2020. This according to
defendants is way after the civil action was instituted against defendants. The
primary issue raised by defendants is, if the order granting LA by the high
court on 13 July 2015 sufficient to clothe the plaintiffs with locus standi.

[6] It is stark that an order for grant of LA was already available to the plaintiff
as of 13 July 2015, before civil action was instituted against defendants at the
sessions court. Legal process left is only to have the LA extracted, which was
finally done on 14 May 2020. This court is of the considered view that
extraction of LA is a continuing process from the order of the high court
granting LA. The extraction process has only the effect of completing the legal
process involved on inheritance and distribution of property belonging to the
deceased. Delay in extraction of LA, after a period of about five years does not
mean that plaintiff is not in possession of the order of court granting LA.
Existence of the grant of LA is easily detectable via search at the court registry.
The period of time between 13 July 2015 to 14 May 2020 does not show any
change in circumstances on issuance of the grant of LA to plaintiff by the high
court at Kuala Lumpur. Moreover, existence of the grant of LA is also not
disputed by the defendants. (See exhibit 'SA-2" to affidavit in reply by plaintiff
dated 3 September 2020)

[7] In view of the foregoing, the SCJ has not committed any appealable error
when she dismissed the application (encl 72) by defendants to strike out the
summons and SOC by plaintiff for want of legal standing. In law, the plaintiff
has locus standi to sue the defendants as personal representative of his deceased
son. Source of his authority to sue is the order of the high court at Kuala
 Muhamad Zuki Johari & Anor
v. Shaari Amat (Mendakwa Sebagai Wakil Diri Kepada
[2021] MLRHU 1209 Pesaka Mohamad Azril Shaari) & Ors pg 3

Lumpur granting him LA dated 13 July 2015.

[8] Soon after extraction of the grant of LA on 20 April 2020, the plaintiff is
also perfectly entitled under the law to have applied to the sessions court to
amend and correct the intitulement in the summons issued against the
defendants as well as description of his capacity to sue at para 1 of SOC filed
by him accompanying the summons. (Enclosure 61). The amendment, which
was allowed by the SCJ will now have the effect of his capacity to sue
described as "pentadbir harta pesaka" and not "wakil diri".

Legal Position And Findings Of This Court

[9] In order to thwart the claim by plaintiff by striking it out pursuant to O 18 r

19(1)(b) and (d) of the Rules of Court 2012 (ROC), counsel for appellants in
her submission has relied wholly on the case of Ang Hoi Yin v. Sim Sie Hau
[1968] 1 MLRH 386; [1969] 2 MLJ 3 followed by Comptroller of Income Tax v.
Yan Tai Min [1964] 1 MLRH 443; [1965] 1 MLJ 255; P Govindasamy Pillay &
Sons v. Lok Seng Chai & Ors [1961] 1 MLRH 776; Ingall v. Moran [1944] 1 KB
160, to support her maiden argument that since the plaintiff has not extracted
the grant of LA, he had no locus standi to sue defendants, and thus the suit
instituted is a nullity and must be set aside.

[10] It is my observation that submission advanced by her is made

perfunctorily without adequate insight into those case authorities. Little she
realized that, if the said submission is accepted by this court, it would occasion
injustice to the plaintiff who would be denied access to justice. To ensure
justice is done to all parties to the proceeding, which is paramount, the case
authorities cited and legal provisions of law applicable are scrutinized, and my
findings are as below.

[11] In the case of Yan Tai Min (referred to above), the defendant had entered
conditional appearance and applied to strike out writ of summons on the
ground that the action brought against him as administrator was incompetent.
The defendant had obtained an order for the grant of letters of administration
to him of the estate of Yan Koon Wing deceased but he had not extracted the
grant. Ali J (as he then was) held that only on extracting the grant of letters of
administration could a person be said to be duly clothed with a representative
character and to have acquired a title to the estate so as to make him an
administrator within the meaning of O 16 r 8 of the Rules of the Supreme
Court. Therefore, the defendant was not the administrator and the action
could not be brought against him as administrator. It is noteworthy, that this
decision is premised on the Rules of Supreme Court 1957 which has been
replaced by the Rules of High Court 1980, and now ROC 2012.

[12] A similar question whether a person who had obtained an order from the
registrar for the grant of letters of administration to issue could be sued in a
representative capacity before the grant was extracted arose in an earlier case
of P Govindasamy Pillay & Sons v. Lok Seng Chai & Ors [1961] 1 MLRH 776
Ismail Khan J (as he then was) had decided:
 Muhamad Zuki Johari & Anor
v. Shaari Amat (Mendakwa Sebagai Wakil Diri Kepada
pg 4 Pesaka Mohamad Azril Shaari) & Ors [2021] MLRHU 1209

In my opinion, it is only on extracting the grant of letters of

administration that the petitioner can be said to be duly clothed with a
representative character and to have acquired a title to the estate.

...

I respectfully follow Lord Parker's observations in the case of

Meyappa Chetty v. Supramanian Chetty, [1916] 1 AC 603 at p 609, 'An
administrator, on the other hand, derives title solely under his grant
and cannot, therefore, institute an action as administrator before he
gets his grant;' in my opinion this also applies in the reverse. The
representative capacity can only be proved by the production of the
grant under seal or a certified copy thereof.

Emphasis of this authority is on obtaining of the grant of LA and its

production in order for plaintiff to show his representative capacity
when suing the defendant. In the present case, exhibit SA2 is self-
explanatory and its existence puts to rest the case of the plaintiff to sue
as personal representative of his deceased son.

[13] In the case of Ingall v. Moran (referred to above), on 17 September 1942

the plaintiff issued a writ in an action brought by him under the Law Reform
(Miscellaneous Provisions) Act 1934, claiming to sue in a representative
capacity as administrator of his son's estate. But he did not take out letters of
administration until nearly two months after the date of the writ. The county
court judge applied the doctrine of "relation back" and found for plaintiff.
Allowing the appeal, the Court of Appeal held unanimously that the action
was incompetent at the date of its inception by the issue of the writ and, that
the doctrine of the relation back of an administrator's title, on obtaining a grant
of letters of administration to the date of the intestate's death could not be
invoked so as to render the action competent. Luxmore LJ at pp 167, 168 and
169 made certain observations:

The defendant has appealed to this court, and the only question
arising in the appeal is whether the doctrine of relation back, which is
well established in respect of an administrator's title to a deceased's
estate, has any application to the status of a plaintiff who can only sue
in a representative capacity in an action started before the grant of
letters of representation.

The executor derives his legal title to sue from his testator's will. The
grant of probate before the hearing is necessary only because it is the
only method recognized by the rules of court by which the executor
can prove the fact that he is the executor. If any authority is required,
it is to be found in the judgment of Lord Parker in Chetty v. Chetty. An
administrator is of course, in a different position, for his title, to sue
depends solely on the grant of administration. It is true that when a
grant of administration is made, the intestate's estate, including all
choses in action, vests in the person to whom the grant is made and
title thereto then relates back to the date of the intestate's death, but
 Muhamad Zuki Johari & Anor
v. Shaari Amat (Mendakwa Sebagai Wakil Diri Kepada
[2021] MLRHU 1209 Pesaka Mohamad Azril Shaari) & Ors pg 5

there is no doubt both at common law and in equity, in order to

maintain an action, the plaintiff must have a cause of action vested in
him at the date of the issue of the writ.

Paying heed to the observations made by Lord Justice Luxmore, and

juxtaposing it with facts and circumstance of the present case, the
grant of LA in the form of SA2, vests in the plaintiff the right to a
cause of action against the defendants. The cause of action which had
accrued to the plaintiff when his son died resulting from the motor
vehicle accident, does not abate but has in fact survived for the benefit
of his son's estate, by virtue of s 8(1) of the Civil Law Act 1956 (Act
67). As such, equally the grant of LA obtained by him on 13 July 2015
would also in law fortify his position as a plaintiff and personal
representative to sue as an administrator of his deceased son's estate.
With SA2 which is the grant of LA made to the plaintiff, his
entitlement under the law to sue relates back to the date of death of his
deceased son.

[14] In fact, in the case of Ang Moi Yin, a Singapore case of Chia Foon Sian &
Anor v. Lam Chew Fah & Anor [1955] 1 MLRH 432; [1955] 1 MLJ 203 was
referred to but not followed. In that case, letters of administration were granted
to the plaintiff on 19 September 1947 and extracted on 18 August 1950.
Whitton J held that plaintiff acquired the character of administrator on 19
September 1947. Another case referred to is the case of Re Haji Mohamed
Amin, Petition No 94 of 1934 (unreported), wherein Thorne J held that an
action against an administrator before the extraction of the grant of letters of
administration was valid. Both these cases were dealt with by Ismail Khan J in
the case of P Govindasamy Pillai (referred to above) but not agreed with.
Likewise, too by Lee Hun Hoe J, (as he then was) in the case of Ang Hoi Yin
who had decided the following:

From the authorities it seems clear that the law on the matter is the
same whether a person sues as administrator or is being sued as such if
he has not extracted letters of administration at the commencement of
action. The writ must be regarded as a nullity from the beginning and
be set aside. Perhaps the plaintiff may consider taking the matter
higher where a binding decision would be welcome. But for myself for
reasons given I would dismiss the plaintiff's action with costs.

[Emphasis Is Mine]

[15] Hence it is apparent from the decision in the case of Ang Moi Yin, that
there are cases which have been decided on the same footing with decision of
this court, wherein even without extraction of grant of LA but with the order
granting LA, the plaintiff is still clothed with capacity to sue under the law.
The learned judge was aware of the conflicting decisions, but he had decided
not to follow them. Thus, taking the cue from advice rendered by Lee Hun
Hoe J (later Chief Justice of Borneo) this court is definitely in a position to
explore further on the issue raised in this appeals. It is after such exploration
and in the interest of justice, this court decides that the plaintiff has locus standi
 Muhamad Zuki Johari & Anor
v. Shaari Amat (Mendakwa Sebagai Wakil Diri Kepada
pg 6 Pesaka Mohamad Azril Shaari) & Ors [2021] MLRHU 1209

to sue in the light of SA2 which was granted to him on 13 July 2015. The
learned judge's advice for parties to take the matter higher for a binding
decision to be made may come to fruition, if this appeal finally reaches the
Court of Appeal.

[16] Order 15 r 6A ROC enables a plaintiff to institute civil action against the
defendant who has died but the cause of action survives, but no grant of
probate or administration has been made, in the name of personal
representatives of deceased defendant. Such action if brought, shall be treated
as having been brought against his estate. (See O 15 r 6A (2) & (3) ROC). The
raison d'etre of this provision is to enable the plaintiff to have more time to
inquire into status of the personal representative who can be sued as defendant
once grant of probate or administration is obtained and also to prevent him
from being statute-barred to sue pursuant to the Limitation Act 1953 (Act 254)
as well as s 8(3) of Act 67.

[17] By analogy, although that provision in the ROC applies to a defendant

who can be sued, likewise would also be status of the law applicable to a
plaintiff who is suing. The law cannot be operating on two different planes,
one to sue as plaintiff and another to be sued as defendant. The common
factor is still a deceased person, whose personal representative is either
plaintiff or defendant and subject matter is grant of probate or administration
which clothes them with representative capacity. Thus, the takeaway from this
provision is that a civil action could still be pursued by the plaintiff as personal
representative of the deceased and when the grant of probate or administration
is obtained, he could apply to the court to have his legal capacity to sue
altered. This has happened in the present case.

[18] Order 15 r 6A ROC does not exist in isolation. It has to be read

concomitantly with s 59 of the Probate and Administration Act 1959 (Act 97)
which caters for rights of action of a personal representative. It reads as the
following:

Subject to any other written law, a personal representative has the

same powers to sue in respect of all causes of action that survive the
deceased, and may exercise the same power for the recovery of debts
due to him at the time of his death as the deceased had been living.

By virtue of this provision, the plaintiff in the present case, as a parent

is perfectly entitled to sue the defendants on behalf of his son who had
died as a result of the motor vehicle accident, alleged to have taken
place resulting from negligence of the defendants.

[19] Alongside s 59 of Act 97 is s 8(1) of Act 67 which reads as following:

Subject to this section, on death of any person all causes of action

subsisting against or vested in him shall survive against, or as the case
may be, for the benefit of, his estate.

Again by virtue of this provision, due to death of the plaintiff's son, the cause
 Muhamad Zuki Johari & Anor
v. Shaari Amat (Mendakwa Sebagai Wakil Diri Kepada
[2021] MLRHU 1209 Pesaka Mohamad Azril Shaari) & Ors pg 7

of action in negligence against the defendants does not abate but it survives
and by virtue of the grant of LA made by high court at Kuala Lumpur on 13
July 2015, it vests in the plaintiff right to sue on behalf of his deceased son's
estate. Relief sought by the plaintiff is enveloped under s 7 of Act 67, which
provides for compensation for loss occasioned by death of his son.

[20] Undoubtedly in order to sue, the plaintiff has to be clothed with

representative capacity. As alluded to above, he has to be an administrator of
the estate of his deceased son. By virtue of the grant of LA which is SA2, he is
clothed with such capacity. This is evident from s 2 of Act 97 which defines
who is a "personal representative", an "administrator" and what does he
administer. It is the following:

"personal representative" means... administrator for the time being of a

deceased person taking out "representation".

"representation" refers to the obtaining of the grant of administration.

"administrator" means a person to whom administration is granted.

"administration" means, with reference to the estate of a deceased

person, letter of administration issued by the court whether general or
limited or with the will annexed or otherwise authorizing the person
or persons therein named to administer the deceased person's estate in
accordance with law.

Flowing from the above, the plaintiff is an administrator as administration of

his deceased son's estate has been granted to him by the high court at Kuala
Lumpur vide SA2, which is the grant of LA. By virtue of that, the plaintiff is
the personal representative of his deceased son who could sue the defendants
as of the date 13 July 2015. Hence, at the date of issuance of writ by the
plaintiff, he is clothed with capacity to sue the defendants for a cause of action
in negligence which has survived and vested in him on behalf of the estate of
his deceased son.

[21] In order to obtain the grant of LA, the plaintiff had in his possession the
death certificate of his deceased son from the Registrar of Births and Deaths.
Surveying SA2, he was able to identify the assets and liabilities of the estate
and he is the sole beneficiary of the estate. Following to that, the grant of LA
was ordered by the high court to be granted to him. The defendants had
complained that the grant of LA would only be effective on its extraction. The
extraction of grant of LA ie on 14 May 2020, as explained above, only
completes the process of obtaining the grant of LA. Once the LA is extracted,
the plaintiff as administrator can collect all the assets of his deceased son into
his possession to settle all debts or liabilities and then distribute the remainder
according to their entitlement under the law, be it personal or civil law. Thus,
the extraction of LA only entitles the plaintiff to deal with the assets of his
deceased son. Therefore, on his right to sue as plaintiff on behalf of his
deceased son who had died out of a motor vehicle accident, allegedly caused
by negligence of the defendants, he still possesses the right to sue and maintain
 Muhamad Zuki Johari & Anor
v. Shaari Amat (Mendakwa Sebagai Wakil Diri Kepada
pg 8 Pesaka Mohamad Azril Shaari) & Ors [2021] MLRHU 1209

the cause of action, as of 13 July 2015 when the grant of LA was ordered by
the high court.

Striking Out Pleading

[22] Evolution of case authorities demonstrate that, only in a plain and

obvious case, an order to strike out the plaintiff's plaint would be allowed by
the court. (See the oft-quoted case of Bandar Builders Sdn Bhd v. UMBC Berhad
[1993] 1 MLRA 611; [1993] 3 MLJ 36; [1993] 4 CLJ 7; [1993] 2 AMR 1969).
The basis being:

(i) the plaintiff has not reasonable cause of action against the
defendant pursuant to the facts of the case and law applicable to it.

(ii) The action brought against defendant does not necessitate a trial in
open court as it is wanting in triable issues for the court to try and
adjudicate.

(iii) By virtue of which, claim by plaintiff would tantamount to be

frivolous, vexatious or an abuse of the court process.

A striking out order should not be made summarily by the court if there is
issue of law that requires lengthy argument and mature consideration. It
should also not be made if there is issue of fact that is capable of resolution
only after taking viva voce evidence during trial. (See Sivarasa Rasiah & Ors v.
Che Hamzah Che Ismail & Ors [2012] 1 MLRA 255; [2012] 1 MLJ 473; [2012]
1 CLJ 75).

In the present case, the grant of LA vide order of the high court dated 13 July
2015 has to be produced as proof of the plaintiff's representative capacity to
sue on behalf of his deceased son. Sanctity of the said court order has to be
respected by all parties to proceeding, including the defendants and it comes to
effect on the date it was made pursuant to O 42 r 7 ROC which reads as:

(1) A judgment or order of the Court takes effect from the day of its
date.

(2) Such a judgment or order shall be dated as of the day on which it is

pronounced, given or made, unless the Court orders it to be dated as
of some other earlier or later day, in which case it shall be dated as of
that other day.

[23] The pivotal question then, is the civil action instituted by the plaintiff
sustainable for trial at the sessions court? The answer is obviously yes for the
following reasons:

(i) The suit by plaintiff is premised on a cause of action which has

survived by virtue of s 8(1) of Act 67 and it is anchored on a motor
vehicle accident which had led to his deceased son to have suffered
injuries, damages and finally death. Cause of action means a factual
 Muhamad Zuki Johari & Anor
v. Shaari Amat (Mendakwa Sebagai Wakil Diri Kepada
[2021] MLRHU 1209 Pesaka Mohamad Azril Shaari) & Ors pg 9

situation, the existence of which entitles one person to obtain from the
court a remedy against another person. In order to sustain a cause of
action the plaintiff has a right either at law or by statute and such right
has been affected or prejudiced by the defendant's act. (See
Government of Malaysia v. Lim Kit Siang & Anor [1988] 1 MLRA 178;
[1988] 2 MLJ 12; [1988] 1 CLJ (Rep) 63; Letang v. Cooper [1965] 1
QB 232 at 234).

(ii) It is for the plaintiff to prove by viva voce evidence during trial of
the case that at the material time of accident, defendants owe deceased
a duty of care, which was breached and had caused his injuries and
death.

(iii) The defendants on the other hand have to disprove it vide

explanation and defence available to them in accord with facts and
circumstance of the case. In the present case, pleaded defence of
defendants is contributory negligence on the part of the deceased who
was driving a motorcar; an accident which was inevitable to avoid and
they have also taken liberty to institute third party proceeding against
two individuals and a limited company.

(iv) The court then would have to decide on whose side the balance of
probabilities would tilt, plaintiff or defendants, based on evidence
proffered in the case during trial.

(v) The fact that defendants have pleaded so, it only means that they
have to meet case of the plaintiff. They cannot now state that plaintiff's
claim against them is frivolous and vexatious. If so, defence should
not have been filed, seeking contribution from third parties whom they
find responsible and blameworthy for the accident.

(vi) The process of the court is not abused by plaintiff as it was by the
lawful order of the high court in the form of SA2, he had instituted the
civil action against the defendants.

Conclusion

[24] But of course it is rudimentary, that plaintiff shall have legal capacity to
sue. It is not an issue as the plaintiff being parent of his deceased son who had
been injured and finally died as a result of the accident, had initially sued as
his personal representative. At that point of time, he had obtained an order of
the high court for grant of LA, but not extracted yet. On extraction, he has
rightfully under the law moved the court to amend his legal capacity to sue as
the lawful administrator of the estate of his deceased son.

[25] The order obtained by him from the high court for grant of LA on 13 July
2015 is lawful and in accordance with O 71 r 4 and 5 ROC. When court
granted the said order, it had the benefit of sworn affidavit by the plaintiff.
Inquiries are made before the high court allows the grant of LA. In fact,
viewing "SA - 2", it is apparent that it is titled as "Grant of Letters of
 Muhamad Zuki Johari & Anor
v. Shaari Amat (Mendakwa Sebagai Wakil Diri Kepada
pg 10 Pesaka Mohamad Azril Shaari) & Ors [2021] MLRHU 1209

Administration" and there are two dates on the said grant, namely, dated 13
July 2015 followed by date of issue on 14 May 2020. The dates are on the
same grant of LA directed to the plaintiff.

[26] The defendants had also relied on s 8(3) of Act 67 when moving the
sessions court to strike out the plaintiff's summons and SOC. That provision is
inapplicable, simply because it caters for a situation where a claim is being
pursued on a defendant who is without grant of probate or administration and
not in a case of plaintiff, like the present case.

[27] Order 92 r 4 ROC, relied upon by defendants is on all fours applicable to

the plaintiff. Reading it together with O 1A ROC, the overriding factor in the
proceeding is substantial justice to all parties, including the plaintiff. The
plaintiff cannot be denied access to justice when he has the right to pursue an
action in negligence against defendants under the prevailing law and rules
applicable.

[28] The SCJ has also rightly allowed the application by plaintiff to amend the
intitulement to his summons and description of his capacity to sue at para 1 of
his SOC. The order by the SCJ is justified and in accordance with O 20 r 5(4)
ROC which reads as the following:

An amendment to alter the capacity in which a party sues (whether as

plaintiff or as defendant by counterclaim) may be allowed under
paragraph (2) if the capacity in which, if the amendment is made, the
party will sue is one in which at the date of issue of the writ or the
making of the counterclaim, as the case may be, he might have sued.

[29] In the upshot, the appeals by defendants are dismissed with costs of
RM4000 to be paid to plaintiffs. The case ought to continue for trial at sessions
court, Kuala Kangsar without any more hindrance after a contumelious delay
occasioned by the myriad of appeals by the defendants. It has to be noted that
the motor vehicle accident, which is subject matter of the civil action took
place on 10 December 2011 and the trial has not commenced yet.