Arifin Zakaria CJ (Malaya):

[1] I have had the benefit of reading the judgments of the learned CJ and my learned brother Augustine Paul, FCJ. Each of them had expressed divergent views on the issue at hand.

[2] The facts of the case are set out in their judgments and I do not propose to restate them here. The issue of law that was posed to us reads as follows:

In an application under rule 41 of the Rules of the Court of Appeal 1994 to appoint a person who is not a personal representative of the estate of the deceased to represent the deceased's estate to carry on with the proceedings, is the consent of that person necessary?

[3] The answer to this question turns on the interpretation to be given to r. 41 of the Rules of the Court of Appeal (the Rules) read in conjunction with r. 43 of the Rules.

[4] Having considered these two related Rules, with respect, I agree with the interpretation adopted by my learned brother Augustine Paul, FCJ. Briefly my reasons are as follows:

[5]Rule 41 in clear term provides that an order to add a person as a party to the suit may be obtained on an ex parte application. By definition the term ex parte means that the order can be taken or granted on the application by one party in the absence of the other. (See Concise Law Dictionary, P.G. Osborne, 1964, 5th edn).

[6] On that premise I agree with Augustine Paul, FCJ that r. 41 has in its contemplation a dispensation of the consent of the person to be added as a party. This is fortified by r. 43 which allows the person to be added as a party to apply to the court to discharge or vary the order within 12 days from the date of service of the order on him.

[7] If indeed the consent of the person proposed to be added as a party is required before he or she could be made a party, then it would go against r. 41 which allows such an application to be made ex parte. In any event the person will not in any way be prejudiced by such an application as under r. 43 he or she is free to apply to the court to have the order given under r. 41 to be set aside or varied.

[8] On the above premise I would therefore, answer the question posed to us in the negative and consequently the appeal is allowed. In the circumstances of this case I agree that there shall be no order as to costs both here and in the court below.

Augustine Paul FCJ:

[9] The issue for deliberation in this appeal is whether the consent of a person not already a party to a proceeding must first be obtained before he is made a party to it pursuant to r. 41 of the Rules of the Court of Appeal ("r. 41").

[10] The facts of the case as outlined in the judgment of the Court of Appeal are as follows. The plaintiffs in the High Court were Haji Mohd Noor bin Haji Yakub, Sofiah binti Omar and Haji Harun bin Omar while the defendant (the appellant in the Court of Appeal and in this court) was Guan Teik Sendirian Berhad (menggantikan Lim Oo Guan, simati). By an ex parte notice of motion dated 8 May 2008 the defendant applied for an order under r. 41 that this appeal and all the proceedings related thereto be carried on between the defendant and one Md. Zaini bin Haji Mohd Noor, in place of Haji Mohd Noor bin Haji Yakub who had passed away on 3 March 2008, as representative of the estate of Haji Mohd Noor bin Haji Yakub and the other plaintiffs. The defendant's application was supported by an affidavit affirmed by Dato' Khow Choon Thiew @ Khoo Kiap Leng, a director of the defendant. It was averred in the affidavit that the defendant had appealed against the decision of the High Court at Alor Setar given on 12 February 1996. On 12 July 1999 the defendant's appeal was allowed by the Court of Appeal with the order that the costs of the appeal and the costs at the court below be paid by the plaintiffs to the defendant. The defendant began proceedings for taxation in the Court of Appeal and the taxation of the plaintiff's bill of costs was fixed for hearing on 28 September 2007. It was adjourned to 7 December