A registered society must be sued by its Public Officer, yet the presence of triable issues can prevent the striking out of an action despite improper party naming.

Introduction

[1] This is an application by the defendants for an order that the plaintiff's writs of summons dated 2 February 2015 and statement of claim dated 30 January 2015 be struck out or set aside under O 18 r 19 of the Rules of 2012 ("the ROC"). Alternatively, that there be a stay of proceedings pending payment of the costs awarded in Kuching High Court Suit No: KCH-22NCVC-60-10-2014 ("the first suit").

[2] The first suit involves the same parties which had been struck out by the Court upon application made by the plaintiff. In the first suit the defendants also filed an application for striking out the plaintiff's writ and statement of claim. In the first suit, in making the order that the plaintiff's action be struck out, the Court also made an order that the plaintiff be at liberty to file a fresh action. The Court also ordered the costs of RM10,000.00 to the defendants which is still unpaid by the plaintiff. This gives rise to the defendants' alternative prayer for stay under the present application.

Grounds Of The Defendants' Application

[3] The defendants submit that the plaintiff's action on the face of it is unsustainable, frivolous or vexatious and is an abuse of the Court's process for failure to comply with s 9(c) of the Societies Act 1966 . From his submission, the learned counsel for the defendants submitted that pursuant to this section, the correct person to sue or to be sued in an action by or against a registered society would be the Public Officer. If there is no such named Public Officer, then and only then office bearers can be named instead in the action.

[4] The defendants further submit that in the present suit, the plaintiff is suing the President (1st defendant), Deputy President (2nd defendant) and Honorary Secretary (3rd defendant) who are the office bearers of the Sarawak Club (a society duly registered under the Societies Act 1966 ) notwithstanding the fact that there is a Public Officer registered by the Registrar of Societies. By naming the office bearers and not the Public Officer, the plaintiff had offended s 9(c) of the .

[5] In support, the defendants cited the case of Hendry Jamry Yakim & Anor v. Datuk Seri Mohd Najib Tun Haji Abdul Razak & 3 Ors (Encl 8), [SUIT NO: BKI-22NCVC-28-11-2013] where His Lordship Chew Soo Ho J held that it is mandatory to sue the Public Officer of the society in a legal proceeding. Only if there is no registered Public Officer, the plaintiffs may sue in the name of any of office bearer of the society.

Plaintiff's Submission

[6] The plaintiff's case is that the Public Officer of the Sarawak Club had been duly named as the 3rd defendant in this case, ie Mr Lai Lian Yee. The plaintiff submits that if the 1st and 2nd defendant are not the proper parties in the present suit and it should only name the Public Officer of the Sarawak Club, ie the 3rd defendant, the defendants ought to have applied for the 1st and 2nd defendant to be struck out from the action or alternatively make a proper application before this Honourable Court for 1st and 2nd defendant be ceased to be a party from the action as provided under O 15 r 6 of the ROC. The plaintiff contends that the defendants shall not be entitled to strike out the whole action entirely.

[7] The plaintiff also submits that there is nothing in s 9(c) of the Societies Act 1966 which prohibits and/or prevent the naming of the other parties apart from the Public Officer of the Club alone.

[8] The plaintiff f