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2023 MarsdenLR 2359
COURT OF APPEAL PUTRAJAYA
MEJAR HUZAIREIN HJ YACOB & ORS – Appellant
Versus
STAF SARJAN NUR AIZAM HAMALI – Respondent
[Civil Appeal No: M-01(NCVC)(W)-386-05-2022]
In tort claims against the Government, responsible officers must be named as defendants to establish liability before the Government can be held vicariously liable.
Headnote:(A) Armed Forces Act 1972 - Sections 51, 87, and 96(3) - Government Proceedings Act 1956 - Sections 5 and 6 - Appeal against unlawful detention - Court allowed appeal, stating that for tort claims against the Government, responsible officers must be named as defendants for vicarious liability to apply - The court found that the arrest was lawful as there were reasonable grounds for revocation of the initial release order. (Paras 18-20, 21-24)
(B) Tort Law - Government liability - In tort claims against the Government, it is essential to establish the liability of the public officer involved prior to claiming against the Government. (Paras 18-20)
Facts of the case:
The Plaintiff, a Staff Sergeant, was unlawfully detained for 26 days during a Court Martial process, leading to a claim for damages. The Judicial Commissioner awarded damages, which the Appellants appealed.
Findings of Court:
The court determined that the Appellants' appeal should be allowed as the necessary parties were not joined in the action, and the arrest was deemed lawful.
Issues: Whether the Plaintiff correctly named the 2nd Defendant and whether the arrest was compliant with the law.
Ratio Decidendi: The court held that vicarious liability requires the responsible officer to be named in tort claims against the Government, and reasonable grounds justified the revocation of the Plaintiff's initial release.
Result: Appeal allowed.
| Table of Content |
|---|
| 1. appeal against judicial commissioner's decision (Para 1 , 2 , 15) |
| 2. factual background of plaintiff's case (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14) |
| 3. government liability in tort requires joining responsible officer (Para 18 , 19 , 20) |
| 4. legality of plaintiff's arrest and detention (Para 21 , 22 , 23 , 24 , 25) |
| 5. court's decision to allow appeal and set aside lower court's ruling (Para 26) |
Introduction
[1] Encl 83 dated 24 May 2022 is the Appellants' appeal to the Court of Appeal against the whole of the learned Judicial Commissioner's decision delivered on 28 April 2022 allowing the Respondent's claim in para 17(a), (b) and (c) of the Statement of Claim. The following orders were made against the Appellants:
(a) A sum of RM52,000.00 to be paid by the Appellants as damages for unlawful detention calculated in the sum of RM2,000.00 per day for a period of 26 days;
(b) Interest of 5% per annum calculated daily from the date the claim was filed until the date of Judgment;
(c) Interest of 5% per annum calculated daily from the date of judgment until full settlement; and
(d) Costs of RM15,000.00 be paid jointly and severally by the Defendants to the Plaintiff.
[2] Parties will be referred to as the Plaintiff and the Defendants respectively in this Judgment.
Brief Facts
[3] The Plaintiff (SP1) at all material times was a Staff Sergeant of the Royal Malay Regiment stationed in Kompeni PANDURA (Para), Terendak Camp, Malacca.
[4] On 20 July 2017, the Plaintiff was charged in the Court Martial under s 51 with an alternative charge under s 87 of the Armed Forces Act 1972 (Act 77) as his urine was found positive Amphetamine and Methamphetamine.
[5] The Plaintiff was put under close arrest from 6 June 2017 until 12 June 2017 in accordance with s 96(3) of the said Act.
[6] The trial started on 16 March 2018 upon the order issued by the 2nd Defendant in his capacity as "Pihak Berkuasa Sidang". However, due to several adjournments, the Plaintiff was ordered to be released from arrest until the next hearing as required under O 16(1) of The Armed Forces (Court Martial) Rules of Procedure 1976.
[7] On 23 October 2018, the 2nd Defendant as the "Pihak Berkuasa Sidang" was replaced by Brigadier General Khairul Azmizal Bin Ahmad Natal (SD4).
[8] The trial resumed on 4 April 2019. The Court Martial proceedings were adjourned to 17 June 2019 in order to allow the parties time to prepare their written submissions for the end of defence case.
[9] From 10 June 2019 until 5 July 2019, Plaintiff was placed under close arrest under the order issued by SD4.
[10] On 17 June 2019, the trial was postponed and a new hearing date has been fixed for trial on 23 December 2019.
[11] On 19 June 2019, learned counsel for the Plaintiff wrote a letter to the 1st defendant (SD2) seeking for the Plaintiff's release from close arrest.
[12]Via a letter dated 24 June 2019, SD2 replied through Captain Muhammad Saffuan Bin Zainol Rashid (SD3) stating that the reasons for the arrest were in accordance with O 16(1) of The Armed Forces (Court Martial) Rules of Procedure 1976.
[13] On 23 October 2019, the military Court found the Plaintiff not guilty as charged and he was acquitted and discharged of the offence.
[14] On 27 December 2019, the Plaintiff filed this action against the three Defendants. In the statement of claim, the Plaintiff sought the following reliefs in para 17:
(a) Sejumlah wang Ringgit Malaysia Lima Puluh Dua Ribu (RM52,000.00) sahaja dibayar oleh Defendan-Defendan sebagai ganti rugi tahanan secara tidak sah (unlawfully detained) selama 26 hari dikira dengan RM2,000.00 sehari;
(b) Faedah sebanyak lima peratus (5%) setahun dikira secara harian mulai tarikh pemfailan sehingga tarikh Penghakiman;
(c) Faedah sebanyak lima peratus (5%) setahun dikira secara harian mulai Tarikh Penghakiman sehingga tarikh penyelesaian penuh;
(d) Kos tindakan;
(e) Kos guaman sebanyak - RM10,000.00 atas dasar klien peguamcara;
(f) Ganti rugi am dan khas yang a
