Back
2021 MarsdenLR 3257
HIGH COURT MALAYA MUAR
ZULIAHA SELAMAT & ANOR – Appellant
Versus
MAJLIS AMANAH RAKYAT & ANOR – Respondent
[Civil Suit No: JB-24NCVC-332-12/2020]
The principle of audi alteram partem requires that all parties must be given an opportunity to be heard before any adverse decision affecting their rights is made.
Headnote:(A) Civil Procedure – Order 41 Rules of 2012 – Affidavit – Court’s consideration of whether the affidavit-in-support is supported by the Originating Summons – The affidavit-in-support was affirmed 5 days prior to the filing of the Originating Summons, thus not resulting in any substantial miscarriage of justice (Paras 40, 58).
(B) Audi Alteram Partem – The principle of fair hearing requires that parties must be given an opportunity to defend themselves before any adverse decision is made; thus, the absence of the first Appellant during the Enquiry constituted a violation of this principle, leading to a setting aside of the Order for Sale (Paras 122, 128).
Facts of the case: This case concerns an Originating Summons filed against the Order for Sale of property related to the financing Facility provided by the 1st Respondent (MARA) to the Principal Borrower, which was not properly serviced to the 1st Appellant.
Findings of Court: The Court ruled that the Order for Sale must be set aside because the 1st Appellant was denied a right to be heard during the Enquiry.
Issues: The crucial issue was whether the 1st Appellant was afforded a fair hearing during the Order for Sale proceedings, specifically regarding the service of notices and the alleged debt owed.
Ratio Decidendi: The court emphasized that the principle of audi alteram partem was not observed, as the 1st Appellant did not have an opportunity to present her case at the enquiry, which is fundamental to the adjudication process.
Result: The Order for Sale was set aside until the enquiry is redone with proper notice served to the 1st Appellant.
Introduction
[1] This is an Originating Summons, supported by the Affidavit-in-Support seeking for the following reliefs:
i. That the Order for Sale date 13 October 2020 for the property that is held under the Title GM 5268, Lot No 2389, Tanjong Sembrong Sub-District, District of Batu Pahat, State of Johore ("the said property") given by the Land Administrator, District of Batu Pahat, Johore be set aside.
ii. That the Order for Sale dated 13 October 2020 for the said property be stayed until the appeal of the Appellant be heard and decided by the Honourable Court
iii. Any other reliefs or orders that the Court deems fit and just
iv. Cost of the Appeal to be paid by the Respondent to the Appellant.
[2] The Cause Papersare as follows:
i. Originating Summons dated 2 December 2920 ("the OS"). (Enclosure 1).
ii. Affidavit-in-support dated 27 November 2020 ("affidavit-in-support") (Enclosure 2).
iii. Affidavit-in-opposition by 1st Respondent dated 29 December 2020 (Enclosure 8).
iv. 2nd Affidavit-in-opposition by 1st Respondent dated 29 December 2020 (Enclosure 9).
v. Affidavit-in-opposition by the 2nd Respondent dated 5 January 2021 (Enclosure 13).
vi. Affidavit-in-reply by the 1st Appellant dated 12 January 2021 (Enclosure 14).
vii. Affidavit-in-reply by the 1st Appellant dated 12 January 2021 (Enclosure 15).
viii. Affidavit-in-reply by Azmi bin Deraman dated 27 January 2021 (Enclosure 17).
ix. Affidavit-in-reply by Mohd Farid bin Abib dated 27 January 2021 (Enclosure 18).
x. Affidavit-in-reply by Azmi bin Deraman dated 8 February 2021 (Enclosure 19).
xi. Affidavit-in-reply by Mohd Farid bin Abib dated 8 February 2021 (Enclosure 20).
xii. Supplementary Affidavit by the 1st Appellant dated 2 March 2021 (Enclosure 23).
The Background Facts
[3] The 1st Respondent is Majlis Amanah Rakyat ("MARA") which is a Malaysian Government agency, formed to aid, train, and guide Bumiputra (Malays and other indigenous Malaysians) in the areas of business and industry. MARA was formed on March 1, 1966 under the Rural and National Development Ministry. (see Abdullah, Mustaza & Hj Yahya, Mat Marjani (1991). Kemahiran Hidup Bersepadu TERAS, p 108. Dewan Bahasa dan Pustaka. ISBN 98362-2316-9).
[4] It has branch offices through the country and the 1st Respondent Melaka branch has the address for service at 4th & 5th Floor, Plaza Usahawan, Jalan Hang Tuah, 75300 Melaka.
[5] The 1st Appellant is a Malaysian citizen, of full age, and has the address for service at No 31 Jalan Tiaraville 5, Tiara Golf & Country Club, 75450 Ayer Keroh, Melaka.
[6] The 2nd Appellant is the brother of the 1st Appellant and also a Malaysian citizen, of full age and registered co-owner of the property that is held under the Title GM 5268, Lot No 2389, Tanjong Sembrong Sub-District, District of Batu Pahat, State of Johore ("the said property").
[7] Vide a Letter of Offer dated 11 October 2006, a financing Facility ("the Facility") was granted by the 1st Respondent to a company that was trading under the name and style of INVITROTECH SDN BHD (registration number 686186-T) ("the Principal Borrower"). This Facility is called Qardul Hasan was dated 22 January 2007 and the value of the Facility is RM1,979,333-00.
[8] The Facility was secured by a 3rd party Charge on 2 pieces of property namely,
a. The land that is held under the Title GM5268, Lot 2389, Tanjong Sembrong Sub District, District of Batu Pahat, State of Johore registered in the name of the 1st Appellant and 2nd Appellant.
b. The land that is held under the Title GM 4728 lot 262 Tanjong Sembrong, District of Batu Pahat registered in the name of one Zaharah @ Siti Jaharah binti Muhamad.
[9] The Principal Borrower is to pay a monthly instalment of RM16,077- 76 for 120 months.
[10] The 1st Appellant is the largest shareholder of the Principal Borrower Invitrotech Sdn Bhd (registration number 686186-T) with a holding of 51,000 shares and is a Director of the Principal Borrower.
[11] According to the 1st Respondent Re
