The defendant cannot introduce unrelated allegations in a defamation defense that do not justify specific charges of wrongdoing.

Hasan Lah JC:

Application

This is an application by the plaintiff for the striking out of certain paragraphs of the defendant's amended defence and counterclaim pursuant to O. 18 r. 19 and/or O. 92 r. 4 of the RHC 1980 . The application is supported by the affidavit-in-support affirmed by the plaintiff on 2 March 2000.

The defendant opposed the application and he filed in his affidavit-in-reply which was affirmed on 17 March 2000.

Background

The relevant facts for the purpose of this application may be stated as follows. The plaintiff commenced this libel suit against the defendant in respect of a libel contained in a police report lodged by the defendant on 19 April 1998 at the Miri Central Police Station vide Police Report No. 4846/98 and also for the similar libel published by the defendant in a press release dated 18 April 1998 and circulated by the defendant to various newspapers which also republished the similar libel.

In that police report and press release the defendant had accused the plaintiff of dishonestly misappropriated the sum of RM200,000 for himself by paying a cheque for that amount, which the defendant had given him to pass on as a donation to Masjid Lingga, into his own bank account with the intention of permanently depriving Masjid Lingga and the defendant of the proceeds and that the plaintiff was accordingly guilty of criminal breach of trust and/or the criminal offence of cheating.

In his original statement of defence dated 12 October 1998 the defendant pleaded in paras. 8.3(23) to (35) matters relating to the non-repayment of advances received by the plaintiff from the defendant or the defendant's company, Interhill Enterprise and the extortionate conduct by the plaintiff in connection with the sale of the timber logs from the plaintiff's company, equatorial marketing, to the defendant's company, Interhill Enterprise.

On 24 December 1999 the plaintiff filed his application under O. 20 r. 5 of the RHC 1980 for leave to re-amend the amended writ of summons and the amended statement of claim. The grounds for the amendment as stated in the summons were, inter alia, that to remove the wider meaning and to subsequently strike out the irrelevant paragraphs in the statement of defence.

On 26 January 2000 the court allowed the plaintiff's application for amendment. The re-amended writ of summons and re-amended statement of claim was served on the defendant's solicitors on 1 February 2000.

The plaintiff alleged that despite being put on notice as aforesaid the defendant in his amended defence had retained and/or included irrelevant matters under para. 8.1(c), paras. 8.2(22A)(i)(ii) and (iii), paras. 8.2(23) (a), (b), (c) and (d) under the sub-heading "unreturned advances" and paras. 8.2(24) to (35) under the sub-heading "Extortionate conduct". These are the paragraphs the plaintiff is now seeking to strike out on the grounds that:

(a) they are irrelevant and do not concern the subject matter of the plaintiff's libel action;

(b) it is a tactical maneuver by the defendant to prejudice the fair trial of the libel action;

(c) they disclose no reasonable defence to the claim, are scandalous, frivolous and vexatious, are calculated to prejudice, embarrass and delay the fair trial of this action and are an abuse of the process of court.

The Contentions Of the Parties

The learned counsel for the plaintiff contends that the allegations made under the headings "unreturned advances" and "extortionate conduct" in the defendant amended defence and counterclaim which form part of his defence of justification have nothing to do with the supposed misappropriation of the RM200,000 donation for Lingga mosque which was the subject of the police report and the press release as those acts were not mentioned in the police report and the press release. According to the learned counsel under the law the defendant is not allowed to introduce into a defence of justification allegations which in reality are incapa