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2022 MarsdenLR 1713
HIGH COURT MALAYA KLANG
SAMSIAH KHALIDIN & ORS – Appellant
Versus
MAYBANK TRUSTEES BERHAD & ORS – Respondent
[Suit No: BL-22NCvC-19-08/2021]
The civil court lacks jurisdiction to hear claims regarding a Muslim will challenged under Islamic law without prior resolution of beneficiary status by the Syariah court.
Headnote:(A) Order 18 r 19(1) of the Rules of 2012 – Jurisdiction of Syariah High Court governed by the Muslim Wills (Selangor) Enactment 1999 and the Administration of the Religion of Islam (State of Selangor) Enactment 2003 – Court found it lacked jurisdiction to entertain claims against a will due to conflicting claims on the existence of the will – Plaintiffs had not established beneficiary status under Syariah law and therefore lacked locus standi. (Paras 18-20, 26-28)
(B) Striking out applications – Standard of review mandates that claims be evident as obviously unsustainable before striking out – Despite plaintiffs' argument, the suit was considered misconceived due to the requirement for prior determination of beneficiary status in Syariah Court. (Paras 30-35)
JUDGMENT
Introduction
[1] There are 2 applications in this suit filed separately by the 1st defendant (represented by M/s Zabir Imran & Partners) as well as by the 2nd to 4th defendants (represented by M/s Nazri Yahya & Partners) utilising O 18 r 19(1)(a), (b) and (d) of the Rules of 2012.
[2] This Court upon perusing the written submissions filed and hearing the oral clarifications made with the hearing of the 2 applications being conducted on separate dates as the application by the 2nd to 4th defendants was filed later, decided to allow both applications.
[3] The plaintiffs have appealed against this Court's decisions and furnished herein are the reasons for the decisions so delivered.
Enclosure 6 - Striking Out By 1st Defendant
[4] The affidavits before the Court are:
a) Afidavit Sokongan of 1st defendant affirmed on 22 September 2021.
b) Afidavit Jawapan Bersama Plaintiffs affirmed on 11 October 2021.
c) Afidavit Jawapan of 1st defendant affirmed on 26 October 2021.
Enclosure 30 - Striking Out By 2nd To 4th Defendants
[5] The affidavits filed are:
a) Afidavit Sokongan of 2nd defendant affirmed on 2 June 2022.
b) Afidavit Jawapan Bersama Plaintiffs affirmed on 30 June 2022
c) Afidavit Balasan of 2nd defendant affirmed on 21 July 2022
Brief Material Facts
[6] Mokhtar bin Mohamed (the deceased) was a Muslim who died on 18 May 2017, leaving a Will dated 9 November 2012 (paragraph 14 of Statement of Claim) in which the 1st defendant was named as executor and trustee of the estate of the deceased.
[7] The 2nd and 3rd plaintiffs being the parents of the deceased were the beneficiaries under the faraid distribution.
[8] The 3rd to 8th plaintiffs being the siblings of the deceased were the beneficiaries named in the Will together with 2nd to 4th defendants, being the adopted children of the deceased and the guardian of the adopted children.
[9] The 1st plaintiff had made an application at the Sabak Bernam Syariah Court for a Faraid Order bearing case no 10011-040-0116-2018. Upon being granted with this Order, the 1st plaintiff had applied to be appointed as the Administrator of the estate of the deceased. The Letter of Administration (LA) dated 9 October 2018 was granted by the Shah Alam High Court in the OS no BA-31 NCVC-570-08/2018.
[10] In filing the said OS it was stated in the Affidavit in Support that the deceased died without leaving a Will which is reflected in exhibit NFMG-5 of the 1st defendant's Affidavit Jawapan affirmed on 26 October 2021, an averment that is clearly contrary to para 14 of the Statement of Claim, and had listed all the assets conferred to the Will beneficiaries in the List of Assets of the grant of LA application.
[11] The Plaintiffs in disputing the execution of the workings of the Will, filed this suit seeking prayers against the defendants with the Defendants being of the position that the Plaintiffs at all material times were aware of the existence of the Will and the 1st defendant had never been informed of the filing of the applications for Faraid Order and the Grant of LA.
Guiding Principles For A Striking Out Application
[12] Order 18 r 19(1) and (2) of the Rules of 2012 provide as follows:
Rule 19(1) The Court may at any stage of the proceeding order to be struck out any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that:
(a) it discloses no reasonable cause of action or defence, as the case maybe;
(b) it is scandalous, frivolous or vexatious;
(c) it may prejudice, embarrass or delay a fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case maybe.
[13] The Supreme Court in the case of Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd, has asserted the following principles on how courts ought to act in exercising its power under any of the four limbs of O 18 r 19(1):
(a) It is only
