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2011 MarsdenLR 1504
HIGH COURT KUALA LUMPUR
MEERA SOMASUNTHARAM – Appellant
Versus
YOGAMMAH VELLUPILLAI – Respondent
[Petition No: S-31Ncvc-57-2011]
Citation issuance does not require leave or hearing; proof of understanding in affidavits suffices under judicial rules.
Headnote:(A) Rules of the High Court 1980 - Order 72 - Citation issuance and judicial scrutiny - The issuance of a citation under Rule 8 does not require leave or a hearing inter partes; rather, it is an administrative process requiring a verifying affidavit. The Registrar's approval implies scrutiny of facts in the affidavit. The petitioner’s contention regarding the need for leave before citation issuance and hearing based on estoppel is rejected; the citation process was correctly followed by the Registrar as outlined in Rule 8. (Paras 10, 11, 12)
(B) Jurisdictional authority - Contention that the deponent of the affidavit was illiterate was dismissed; it was found the deponent understood the contents of the affidavit. The jurat’s procedure was affirmed, and the petitioner's application was dismissed. (Paras 19, 20, 21)
Findings of Court:
The issuance of the citation was appropriate, without the requirement for judicial leave or a hearing, confirming the Registrar's actions. The court also found the deponent was not illiterate, and thus the application to set aside the citation was dismissed.
Issues: The necessity of leave for citation issuance and the validity of the deponent's affidavit.
Ratio Decidendi: Court affirmed the procedural legitimacy of citation issuance; no hearing needed as the issuance itself was prescribed under the Rules without judicial involvement at this stage.
Result: Application dismissed with costs.
| Table of Content |
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| 1. arguments regarding the issuance of citation. (Para 9 , 10 , 11 , 12 , 13) |
Background:
The Citor is the mother to the Deceased while the Petitioner is the lawful wife of the Deceased.
The Deceased died intestate and leaving behind his mother (the Citor), wife and daughter.
The Petitioner had been granted Letters Of Administration of the Deceased's Estate on 7.2.2011 and the Grant was issued on 23.2.2011.
Unfortunately the Petitioner did not list the Citor and the daughter as the beneficiaries of the Deceased's estate.
Hence the Citor filed the application herein for the issuance of citation to bring in the Grant into Court.
At the same time the Petitioner filed an application to amend the Grant of Letters of Administration to include the Citor as the co-administrator vide Enclosure 31.
The Contention of the Petitioner's Counsel:
1. The Citor is stating that there is no requirement of any leave before any citation is issued out by the Registar and there is no requirement for a hearing before the Citation can be issued. The principal affidavit in support of the application for citation was served on 18.8.2011. The Petitioner submits that with the service of this affidavit in support of the application for citation, there is clearly a position taken by the Citor that the matter should be heard inter partes before the Citation can be issued. The Citor is therefore estopped from saying otherwise.
Now the Citor is taking a contradictory stand i.e that the Citation had been issued out and there is no longer a necessity for it to be heard inter partes .
2. the issuance of citation is not automatic. There must be a scrutinisation of the facts before the Citation can be issued out. The Key words in O 72 r 8 Rules of the High Court 1980 is "must" and "settled". It was submitted that the words "settled" does not stand there by itself it is not automatic. There is a discretion involved.
The words "Must" connotes an addressing of the judicial mind.
The petitioner submits that this had not been done. What had been done is purely an administrative process.
3. The last issue is the affirmation issue in Enclosure 40.
Enclosure 40 at page 4 shows that the deponent,
Yogammah (Citor) signed in Tamil. It was signed not before a Court Commissioner for Oath but a private Commissioner for Oath. Here the translator of the affidavit is the same person i.e the Commissioner for Oath. Refer to O 41 r 3 Rules of the High Court 1980 , where the words used is "must certify". The jurat does not state that the deponent, Yogammah understood the contents of the affidavit. In O 41 r 3 the words used again is "must certify".
The counsel for the Petitioner submits further, that Form 78C is referred which is the form that is to be used by illiterate or blind person. The petitioner submits that comparing the jurat in Form 78C with the jurat at page 4 of enclosure 40, they are miles apart.
This finally leads to one question- the deponent says that she is not illiterate she can read Tamil, on that, the petitioner refers to the case of Chan Kiew v. Lai Sang & Anor , at page 76.
Arguments by Counsel for the Citor:
Counsel for the Citor cited the case of Yap Teck Ngian v. Yap Hong Lang @ Yap Fong Mei & Ors, [2007] 5 MLJ 756 (Federal Court Case) and the Court of Appeal [2006] 2 MLRA 198, [2006] 6 MLJ 607 to rebut the argument that there is no requirement for leave for the issuance of a Citation and there is no requirement of a hearing before it can be issued out.
The Courts Findings:
Whether leave is necessary and that there must be an adjudication bv the Court before the issuance of a Citation :
It was contended by Counsel for the Petitioner that the Citation should be set aside as it was issued by the SAR and there was no judicial adjudication by the SAR in granting leave to issue the Citation. Therefore the issuance was an irregularity and hence it s
