Gopal Sri Ram JCA

There are two appeals before us. They are by the defendants in the court below. The defendants are husband and wife. They were sued by the plaintiff (respondent before us) in the tort of defamation. In respect of the husband, the precise charge is that on 5 January 1998 he told PW2 (the school senior assistant) that someone is attempting to kidnap his (the husband’s) son. In respect of the wife, the substance of the case is that she told PW3 (a policeman) that the plaintiff is the elder brother of one of four men who attempted to kidnap her son. At the close of the plaintiff’s case the defendants elected not to call evidence and to rest on their submissions. The learned judge found for the plaintiff against both defendants not only in the tort of defamation but in the tort of conspiracy as well. Damages in the sum of RM800,000 were awarded as against the husband. These were made up of RM300,000 as general damages, RM300,000 as aggravated damages and RM200,000 as exemplary damages. A further RM1m was awarded as against the wife, made up of RM300,000 as general damages, RM300,000 as aggravated damages and RM400,000 as exemplary damages.

Before us it was argued for the husband that the alleged slanderous words pleaded by the plaintiff in his statement of claim and relied on by him as constituting a cause of action in defamation do not contain any reference to the plaintiff. In short, an essential ingredient of the tort was absent from the plaintiff’s own pleaded case. In my judgment there is merit in this argument. The leading case upon the subject is Knupffer v London Express Newspaper Ltd

In the present instance the pleaded words — and the plaintiff is bound by his pleaded case — are not capable, as a matter of law, of being regarded as making any reference to the plaintiff. The second question — the factual question — therefore does not arise. It follows that a vital ingredient of the tort is absent. The judge should therefore have ruled in the husband’s favour on his submission of no case. On this rather short and simple ground I would allow the husband’s appeal.

I now turn to the wife’s case. The complaint here is that the pleaded words were not proved. The words attributed to the wife and pleaded in the statement of claim are that the plaintiff and his younger brother attempted to kidnap the son of the defendant wife. However, the words proved through the evidence of PW3 were wholly different. According to PW3, the defendant wife told him that the plaintiff is the elder brother to one of four men who attempted to kidnap her son. Unfortunately, the judge in the court below appears to have completely disregarded the plaintiff’s pleaded case and proceeded to find for him on the proved case. This, in my respectful view, is a serious misdirection.

In Janagi v Ong Boon Kiat

A statement of claim and the defence (together with the reply, if any) constitute the pleadings in a civil action. It is on the examination of the pleadings that the court notices the differences which exist between the contentions of the parties to the action. In other words the matters on which the parties are at issue are determinable by an examination of the pleadings. An issue arises when a material proposition of law or fact is affirmed by one party and denied by the other. The court is not entitled to decide a suit on a matter on which no issue has been raised by the parties. It is not the duty of the court to make out a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact it is not proper for the court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleadings. The trial of a suit should be confined to the pleas on which the parties are at variance. If the parties agree to a factual position then it is hardly open to the court to come to a