JUDGMENT

Mohd Hishamudin Yunus J:

Does an unborn child have a legal personality to sue? This novel issue is before me in this appeal - an appeal by the second plaintiff from the decision of the learned deputy registrar to the judge in chambers. In her decision, the learned registrar had dismissed the second plaintiff's application for summary judgment pursuant to O. 14 of the Rules of the High Court 1980 ('the RHC').

I have dismissed the appeal with costs.

I shall state briefly the background facts.

The 1st plaintiff at the material time was a spinster. In her statement of claim, she alleges that after having met the defendant and followed by a few months of courtship, the latter promised to marry her. Believing this promise, she agreed to cohabit with him. And out of this intimate relationship, the 1st plaintiff, five years later, conceived the second plaintiff, the child of the defendant.

The 1st plaintiff alleges that the defendant has renegade on his promise to marry her. She now sues him for the tort of breach of promise of marriage.

In this action, the 1st plaintiff adds her 30 week-old unborn child as the 2nd plaintiff, citing herself as the next friend (purportedly in compliance with O. 76 r. 2(1) of the RHC). However, I am not quite clear as to the 2nd plaintiff's cause of action.

Order 76 rule 2(1) provides:

2(1) A person under disability may not bring, or make a claim in, any proceedings except by his next friend and may not defend, make a counter-claim or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him, except by his guardian ad litem.

Order 76 r. 1 defines 'person under disability' as follows:

'person under disability' means a person who is an infant or a patient.

Neither the RHC not the Courts of Judicature Act 1964 defines 'infant'. But the Interpretation Acts 1948 and 1967 defines 'infant' as:

'infant' has the same meaning as minor.

The Interpretation Acts 1948 and 1967 defines 'minor' as:

'minor' means a person who has not attained the age of majority prescribed by the law applicable to him.

The Interpretation Acts then proceed to define 'persons' (which definition is not helpful for our purpose) as follows:

'person' includes a body of persons, corporate or unincorporated.

Perhaps it would not be out of place to add here that the Child Act 2001 defines 'child' as a person below the age of 18. This is in accordance with the United Nation Convention on the Right of the Child (UNCRC).

The defendant admits having cohabited with the 1st plaintiff. The defendant also admits that he is the father of the unborn child - the 2nd plaintiff. However, the defendant denies having made any promise of marriage to the 1st plaintiff.

In my judgment, although the unborn child has life and it enjoys certain rights under our laws and is protected by the Penal Code from harm, yet I know of no authority (statutory or case law) that states that an unborn child has the legal personality to sue. Indeed, as far as I am aware of the reported cases, this issue has never been raised before in this country. Our legal system only confers on natural persons (for the moment we are not concerned with artificial persons such as companies and statutory authorities), that is to say, human beings, the right to sue and to be sued. And as far as I know 'human being' means a living human, and has never been interpreted to include the unborn child. Thus when our constitution and our laws (of course, these include the Interpretation Acts) speak of a 'person' (and conferring on the 'person' the various rights, duties and obligations), to my mind, they mean (again putting aside artificial persons) an existing natural person, an existing human being, and not a yet to be born child being, that is to say, a human foetus in conception.

Therefore, in the context of O. 76 r. 1 of the RHC, based on my above view, 'infant' as referred to in r. 1, must mean a child that has been born. It c