JUDGMENT

Azizan Md Arshad JC:

Introduction

[1] Since all four cases are based on the same reference and legal question, this Court decided that they ought to be heard simultaneously. The issue that is referred to this Court, although it seems trivial, brings importance to stakeholders who deal with the Court, whether legal practitioners or the public. It involves Muslims who want to obtain a letter of administration to administer an inheritance involving a Faraid certificate ("Sijil Faraid ")

The Law

[2] In this case, the specific reference is O 71 r 5(1) of the ROC 2012 (O 71 r 5(1)) which states as follows:

"Application for grant (O 71 r 5)

(1) Every application for a grant shall be made by originating summons in Form 6 and shall be supported by an affidavit setting out the information in Form 159 and any other information and/or documents as the Registrar may require.

Background Facts

[3] These applications are made under O 71 r 5(1) of the ROC 2012 for the issuance of the Letter of Administration ("LA") as well as exempting the Applicant from two (2) guarantors and bonds. All the cases have been set before the Registrar of the High Court ("Registrar/SAR") and the Registrar has informed the learned Counsel for the applicant to apply and obtain the Sijil Faraid from the Syariah Court and to attach it to the applications as required pursuant to O 7 r 5(1) of the ROC 2012.

[4] Upon this direction, the learned Counsel requests that these cases be set for mention and referred before this Court for further instructions related to the requirement of the Sijil Faraid from the Syariah Court.

[5] During the hearing of these applications, the learned Counsel has raised an issue related to the lack of a requirement for the Applicant to obtain the Sijil Faraid, first, because there is no need to do so. The learned Counsel submits that his clients' applications should be allowed even without the submission of the Sijil Faraid.

[6] The Court also examines the supporting affidavits, to see if there are reasons for the Sijil Faraid not being obtained. There are no reasons given because the learned Counsel is of the opinion that there is no need to do so, and this is the main dispute in the interpretation of O 71 r 5(1) ROC 2012.

Counsel's Arguments

[7] The learned Counsel has drawn the attention to this Court regarding the non-uniformity of practice in several courts in Malaysia. Based on the information from the learned Counsel, to name a few courts, among them are Shah Alam and Alor Setar that do not require the Sijil Faraid to be obtained first. The Court took note of the statement on the learned Counsel's responsibility as an officer of the Court, and not as a judicial notice.

[8] This Court questioned whether the learned Counsel faced difficulties in terms of regulations or in terms of practice. In the answer, based on his experience, he confirmed that he had raised and argued that there was no need to do so under O 71 r 5(1) of the ROC 2012. The learned Counsel submits that he faced problems with the alleged unnecessary practice which is not required under O 71 r 5(1) of the ROC 2012. It has been and is still being practised in Penang.

Court Analysis

[9] It is emphasised in this case that it does not involve the issue of jurisdiction between the Civil or Syariah Courts, but rather which comes first, ie whether to get the Sijil Faraid first or can the application be filed in the Civil Court and Sijil Faraid can be applied later in the Syariah Court?

[10] The learned Counsel has referred to the case of ; [1998] 6 MLJ 556, where it was held that:

"Sungguhpun Senarai 2 Jadual Kesembilan itu menyebut mengenai 'Hukum Syarak berhubung dengan mewarisi harta berwasiat dan tak berwasiat' dan 'pembahagian harta' apabila rujukan dibuat kepada Senarai 1, Senarai Persekutuan Jadual Kesembilan itu ini tidak termasuk probet dan surat mentadbir pusaka. Perkara (e) perenggan (i) dalam Senarai Persekutuan itu menyebut bahawa Parlimen boleh membuat undang- undang antara la