Haidar Mohd. Noor J:

The plaintiffs in these seven consolidated suits are claiming the following reliefs:

(1) a declaration that at all times material to these actions the plaintiffs had acquired customary rights over their plots situated at Kampong Dagang, Miri, Sarawak, as more particularly shown and described in annexure A to their statements of claim and were entitled to use and occupy the same;

(2) damages

(3) such further or other relief as the Court may deem fit; and

(4) costs

From the state of the pleadings the central issue for the determination of the Court is:

Whether at all times material to these actions the plaintiffs had customary rights over the plots of land over which the houses claimed by them were situated?

In the trial the defendants adduced evidence that the lands on which the plaintiffs' houses were situated were in an area which allegedly belonged to Sarawak Shell Oilfield Limited or were within the river bank reserve. The learned Counsel for the plaintiffs submitted that the Court should ignore such defences on the ground that such defences or matters were not so pleaded. He argued that by adducing such evidence, the defendants sought to establish facts which would provide them with a complete defence in law. An examination of the defences filed by the defendants clearly would show that such defences were not so pleaded and in that event the defendants are clearly in breach of O. 18 rr. 7 and 8 of the Rules of the High Court 1980 (RHC). In so far as is relevant, rr. 7(1) and 8(1) of RHC read:

7(1) Subject to the provision of this and rr. 10, 11 and 12, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case maybe, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case requires.

8(1) A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality:

(a) which he alleges makes any claim or defence of the opposite party not maintainable; or

(b) which, if not specifically pleaded, might take the opposite party by surprise; or

(c) which raises issues of fact not arising out of the preceding pleading.

(Emphasis added)

The importance of adhering to the rules of pleadings was stressed by the Supreme Court in Yew Wan Leong V. Lai Kok Chye [1990] 1 CLJ 330 , where Gun Chit Tuan SCJ said at p. 334:

We would point out that this Court has recently once again stressed the importance of pleadings in Muniandy & Anor. v. Muhammad Abdul Kader & Ors. [1989] 2 MLJ 416 at p. 148 in which Mohd. Azmi SCJ stated that:

Unless the objection raised is merely technical, the importance of pleadings can be found in many authorities. The most instructive is perhaps by Lord Diplock in Hadmor Productions v. Hamilton [1983] 1 AC 191 at p. 233:

Under our adversary system of procedure, for a Judge to disregard the rule by which Counsels are bound, has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice, the right of each to be informed of any point adverse to him that is going to be relied upon by the Judge, and to be given the opportunity of stating what his answer to it is...

In the present actions the non-compliance of O. 18 is not merely technical but goes to the failure to comply with the cardinal rules of our system of pleadings. In this respect, I would quote a passage from Janagi V. Ong Boon Kiat where Sharma J said:

The Court is not entitled to decide a suit on a matter on which no issue has been raised by the parties. It is not the duty of the Court to make out a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact it is not