Haji Abdul Malik bin Haji Ishak JC:

The plaintiff sued the defendants for damages arising out of an accident involving two motor lorries on 25 January 1991 at 12.30 p.m. at kilometres 17.9 Lebuhraya Changkat Jering-Ipoh. At the material time, the plaintiff was the lorry attendant of motor lorry registered as KY 9492 driven by one Salleh bin Ani that collided in the rear of the stationary motor lorry registered as R 5821. Motor lorry R 5821 was driven by the first defendant and was owned by the second defendant.

The defendants applied by way of summons-in-chambers for Salleh bin Ani to be joined as one of the defendants and for the plaintiff to amend the title to his writ by incorporating Salleh bin Ani as one of the defendants. The application was made under O. 15 r. 6(2)(b) of the Rules of the High Court 1980 which reads as follows:

6(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -

(b) order any of the following persons to be added as a party, namely -

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter;

but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorized.

The defendants in support of their application caused one Urshela Tharumalingam, a solicitor from Messrs V.T. Singam & Co. to affirm an affidavit wherein it was averred that the collision from the rear was caused or substantially contributed to by the negligence of Salleh bin Ani, the driver of motorlorry KY 9492. It was averred further that the particulars of the negligence of Salleh bin Ani were set out in the statement of defence and counterclaim of the defendants. It was also averred that since Salleh bin Ani contributed to the accident it was necessary that he be added as a co-defendant to enable the Court to adjudicate upon the matter effectively - "demi kepentingan keadilan". Several documents were attached and exhibited as exhibits, including the police report of the plaintiff which gave the picture that the plaintiff was asleep at the time of the accident.

The plaintiff opposed the application and caused Encik Mazlan bin Abdul Rahman, a solicitor from Messrs Abdul Halim Said & Co. to affirm an affidavit to the effect that inter alia:

(1) the negligence of Salleh bin Ani was not an issue in the plaintiff's claim

(2) the plaintiff intended and had elected to sue the defendants only

(3) to bring in Salleh bin Ani as a co-defendant would prejudice the plaintiff's claim and

(4) the "kepentingan keadilan" would not be affected by not incorporating Salleh bin Ani as co-defendant as all the documents were exhibited in the affidavit of Urshela Tharumalingam and such documents, whether agreed or otherwise, would be produced in the course of the trial of the civil suit.

The sole issue to be decided in the defendants' application is this: Whether the Court in the exercise of its discretion under O. 15 r. 6(2)(b) of the Rules of the High Court 1980 and, upon the application of the defendants, is in a position to compel the reluctant plaintiff to add Salleh bin Ani as a co-defendant?

The matter seems to be settled by the Supreme Court case of Hee Awa & Ors. v. Syed Muhammed Sazalay & Anor. [1988] 1 MLJ 300 SC. Briefly put, the facts in Hee Awa's case was that there was an accident involving a motorcycle and a Government motorvan in which the pillion ri