JUDGMENT

Peh Swee Chin SCJ:

A small point of practice and procedure relating to evidence at variance with or departing from pleading arises in this appeal and though there is no dearth of authority on it, application of the relevant principles seems to have frequently given rise to some difficulty as in this appeal; further, we feel we ought to give our reasons for differing from an otherwise well-reasoned judgment of the learned trial Judge.

For reasons which will become apparent later, only a very brief summary of the facts in this case will be given.

The seven respondents, (hereafter the plaintiffs), have all claimed to have acquired native customary rights in certain allegedly state lands at Kampong Dagang, Miri, Sarawak, by virtue of Sarawak's Land Code. Because of the entry of the appellants upon their respective lands and the demolition of their houses thereon by the appellants, they now claim an injunction to restrain the appellants from building on the respective lands and damages, etc.

Both appellants (hereafter the defendants), in each of their respective defence deny the allegation that plaintiffs have acquired such native customary rights but admit their entry of their respective lands alleged to have been acquired by native customary rights and the demolition of the houses thereon.

It will have been noticed that there is a denial by the defendants of such alleged native customary rights without further particulars as to any reason for such mere denial.

At the trial, one of the reasons for their denial of such allegations of native customary rights, (apart from their requiring strict proof of such rights), by virtue of certain section in the said Land Code, was that the said lands were situated within a river bank reserve on which no one could claim any title thereon by virtue of the said Land Code. Yet another reason was that the said lands had allegedly belonged to Sarawak Shell Oil Ltd. at one time.

It was only in the final submission after the conclusion of all evidence that an objection was raised by the plaintiffs for the first time that such defences were not pleaded. Learned Counsel for the plaintiffs argued before the learned trial Judge in his final submission that such defences were not pleaded and such evidence ought to be disregarded for "the defendants sought to establish facts which would provide them with a complete defence in law". To this the learned trial Judge agreed holding that the appellants were in breach of O. 18 r. 7(1) of the Rules of the High Court 1980 which are set out as follows:

7(1) Subject to the provisions of this rule and rr. 10, 11 and 12, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.

8(1) A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality:

(a) which he alleges makes any claim or defence of the opposite party not maintainable; or (b) which, if not specifically pleaded, might take the opposite party by surprise; or (c) which raises issues of fact not arising out of the proceeding pleading.

The learned trial Judge by way of emphasis, underlined r. 8(1)(b) above. His Lordship relied on Yew Wan Leong V. Lai Kok Chye [1990] 1 CLJ 330 (Rep) and Janagi V. Ong Boon Kiat and held that the non-compliance under O. 18 was not merely technical, and such alleged defences, (and it goes without saying that evidence adduced thereon) would be totally disregarded.

What is of importance to bear in mind is that evidence bearing on these two defences was not objected to at all as regards their inadminisibility on account of its departure from the defence of the defendants as and w