The court must have clear authority for an affidavit on behalf of co-defendants, and absence of evidence leads to dismissal of opposing claims.

[1] On 29 November 2014, the learned High Court Judge allowed the plaintiffs' originating summons dated 10 July 2014 against the defendants under O 7 r 2 Rules of 2012 [ROC 2012] to partition and hence terminate the co-proprietorship of a piece of undivided land known as Hakmilik Geran 85976 Lot No 3406 Bandar Maharani Daerah Muar Negeri Johor ("the said land") with no order as to costs. Dissatisfied with the order, the defendants appealed against the whole of the decision of the learned High Court Judge.

[2] Parties will be referred to as plaintiffs and defendants in the High Court.

Background Facts

[3] At all material times, the plaintiffs and the defendants are co-proprietors of the said land. The plaintiffs had appointed a land surveyor to make measurement and partition on the said land accordingly. All the joint co-proprietors were agreed to it except for the defendants.

[4] The plaintiffs then filed the originating summons together with an affidavit in support affirmed by all the plaintiffs on 7 July 2014. In the affidavit in support, the plaintiffs averred that it was their intention to partition the said land into three (3) separate lots and they have prepared a proposed partition plan drawn by a qualified surveyor. The proposed partition plan was exhibited as exh 'QYK-2' in the affidavit in support.

[5] In the same affidavit in support, the plaintiffs also averred that all of them have agreed to partition the said land according to the proposed partitioning plan, except for the defendant who wanted the status quo to remain. For that reason the plaintiffs said they have filed the application by way of the originating summons to get a Court order to partition the said land and terminate the co-proprietorship of the same. The plaintiffs intended that co-proprietors will have individual title on the said land based on the proposed plan.

[6] In opposing this application, the defendants filed only one afidavit balasan. The afidavit balasan was affirmed by one Young Yean Chin, the 1st defendant, on 25 August 2014. In para 1 of the afidavit balasan the deponent averred as follows:

"1. Saya adalah merupakan salah seorang Defendan menurut prosiding ini dan sesungguhnya saya mengikrarkan affidavit ini bagi pihak Young Yean Khang, Young Yean Ning, Young Yean Yee & Khoo Kee Chen sebagai balasan kepada Afidavit Sokongan Quek Yak Kang, Lim Yok Lang & Quek Xiu Yi bertarikh 07 Julai 2014. Segala fakta-fakta yang dideposkan di sini adalah dalam pengetahuan saya dan adalah benar berasaskan kepada rekod-rekod yang berada dalam milikan dan simpanan saya yang mana saya mempunyai akses di mana keesahan dan kesahihannya adalah disahkan oleh saya hanya kecuali jika sekiranya dinyatakan sebaliknya oleh saya."

[7] At the hearing of the originating summons, the plaintiffs submitted before the High Court Judge that the defendants had failed to raise any ground to challenge the plaintiffs' application. It was argued that the afidavit balasan by Young Yean Chin was affirmed only by the 1st defendant. There was no averment to say that the 1st defendant was authorised by the other defendants to affirm the afidavit balasan. As such it was submitted that there is no evidence by the 2nd to the 5th defendants opposing the plaintiffs' application.

High Court Decision

[8] The learned High Court Judge ruled that, the sole affidavit filed by the 1st defendant did not disclose that the 1st defendant was empowered to file the affidavit on behalf of the other defendants.

[9] The defendants did not provide any alternative plan, suggestion, or report for the Court to consider. A