The court may strike out an action for want of prosecution if the plaintiff exhibits inordinate delay without valid justification, as it risks a fair trial and constitutes an abuse of process.

[1] This is my judgment in respect of the defendant's application to strike out the plaintiff's action for want of prosecution.

[2] Numerous affidavits have been filed to justify each party's argument, and in that process, merits of the case were also canvassed. In an application for want of prosecution, the focus should only be on the issue of delay. The court should not be burdened with irrelevant issues and numerous affidavits, and in this case, nearly eight affidavits have been filed.

[3] I have requested the deputy registrar to prepare a chronology of summary of minutes of court and that chronology is marked as encl 53.

[4] The cases parties have relied on are set out in the annexure to the judgment.

The Brief Facts

[5] The writ was filed on 10 August 2007 and the plaintiff applied for an interlocutory injunction to restrain the defendant from dealing with lands charged to the defendant as security for loan to the plaintiff. That application for injunction was dismissed on 13 November 2008. The plaintiff did not seek case management directions immediately to set down the matter for trial or obtained a stay of proceeding for any legitimate reasons. Subsequently, the plaintiff was wound up on 3 December 2009. The plaintiff only obtained sanction on 16 January 2012. There were also other related suits going on which have nexus to the parties to this action and not to the action itself. This distinction must be kept in mind when dealing with the issue of delay.

[6] Learned counsel for the plaintiff relies heavily on the decision of TM Feroze Khan & Ors v. Meera bin Hussain TM Mohamed Mydin, [2000] 1 MLJ 321, FC and summarises the principles as follows:

(1) the default has been intentional and contumelious; or

(2) there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and such delay will give rise to a substantial risk to a fair trial of the issues in the action or is likely to cause serious prejudice to the defendants.

And, inter alia, submits as follows:

4. The defendant has alleged in the striking out application that since the dismissal of the plaintiffs' application for an interlocutory injunction on 13 November 2008, there was inaction on the part of the plaintiffs to set the matter down for trial.

5. Therefore, the plaintiffs humbly submit that the striking out application falls within the second limb of the test laid down in TM Feroze's case.

6. At this juncture, the plaintiffs refer to the chronology of events which is attached herewith as Annexure A to this submission. My Lord will observe from perusing the chronology of events, that since November 2008 parties have been continuously involved in various related suits and winding up petitions against the two plaintiff's which resulted in various appeals at both the court of Appeal and the Federal court.

7. In the TM Feroze case, the Federal court in dealing with similar facts held as follows:

... Whether a delay of over three months is inordinate and inexcusable depends on the facts and circumstances of each particular case. In the instant case, the delay, in our view, had been adequately explained and is not unreasonable. There existed (and still exists) two actions in tandem (ie, the originating summons by the first defendant and the writ action by the plaintiffs) each with claims that are intricately related to those in the other. That being so, the steps taken in the plaintiffs' writ action ought not be viewed in isolation but have to be considered against the backdrop of the events taking place in the 1st defendant's originating summons. At the time the pleadings in the writ action were deemed to be closed, the plaintiffs had already filed the application seeking to intervene in the first defendant's originating summons, and