Hishamudin Yunus J:

This is an appeal by the defendant against the decision of the learned senior assistant registrar who had dismissed the defendant's application under O. 18 r. 19(1)(a) of the Rules of the High Court 1980 ('the RHC') to strike out the plaintiff's pleading on the ground that the statement of claim discloses no reasonable cause of action.

The writ of summons and statement of claim were filed on 11 July 1996. The plaintiff's claim against the defendant is for unpaid professional fees. The unconditional appearance of the defendant was filed on 31 July 1996. The statement of defence was filed on 27 August 1996.

The application to strike out the statement of claim under O. 18 r. 19 was filed on 11 September 2001.

It is contended by the defendant/appellant that the plaintiff/respondent, cited in the title of the writ of summons and statement of claim as " Akitek Bersatu ", is not an entity that is, in law, capable of suing. The defendant argues that the so-called plaintiff, 'Akitek Bersatu', merely being a business name, does not have a legal personality; and an entity that does not have a legal personality cannot have a cause of action.

I find that in the writ of summons and statement of claim, the exact nature of the personality of the plaintiff is unclear. The plaintiff is cited in the title of the writ of summons and the statement of claim merely as follows:

Akitek Bersatu Plaintif

And in the statement of claim, the plaintiff is merely described as:

1. Plaintif adalah Akitek Bertauliah yang menjalankan amalannya di No. 91, Tingkat 1, Jalan 1/91, Taman Shamelin Perkasa, Cheras, 56100 Kuala Lumpur.

The word 'plaintiff' in para. 1 of the statement of claim must mean 'Akitek Bersatu' because, as I have pointed out, in the title of the writ and statement of claim, the plaintiff is named as 'Akitek Bersatu'. In my judgment, based on common sense and my knowledge of Malaysian culture, I am entitled to assume, and, indeed, I shall assume, that 'Akitek Bersatu' is not the name of a natural person. Having made this assumption, I am tempted to assume further that 'Akitek Bersatu' is the name of the business enterprise of the personality (ie, the real plaintiff) behind the action. But the difficulty in my making such a further assumption is that it is not so stated in the statement of claim: the words 'Akitek Bersatu', although they appear in the title of the statement of claim, never appear at all in the body of the statement of claim. Based on the premise that 'Akitek Bersatu' is not a natural person, then the question arises: who or what is 'Akitek Bersatu'? Is it the business name of a sole proprietorship? Is it the business name of a partnership? Or, is it the name of company (or some form of body corporate)?

The learned counsel for the plaintiff/respondent, in his written submission, having been made aware of the issue on legal personality by the defendant's written submission, could have - and indeed he has a legal duty to the court to do so - clarified the meaning of 'Akitek Bersatu' so that the defendant and the Court would have a clear picture of the legal personality of the plaintiff. Learned counsel should have been forthright. For example (depending on whatever the true position is), learned counsel could have asserted that the plaintiff is an individual suing under the name of his business? Or, that the plaintiff is a partner in a partnership and suing under the name of the partnership? Or, that the plaintiff is a company suing under the name of the company? Or even learned counsel could have been candid and admitted that there has been a mistake in the citing of the name of the plaintiff in the title of the writ and statement of claim; or a mistake (or an omission) in the description of the plaintiff in para. 1 of the statement of claim. But, alas, the learned counsel for the plaintiff, in his written submission, took none of these courses of action suggested. Instead, in his written submission, he