RK Nathan JC:

Facts

On 27 February 1997 I granted the plaintiff herein specific performance of an agreement entered into between the plaintiff and the defendant read together with a letter of undertaking and a further order that the defendant do within 30 days from the date of the said order remove the squatters/occupiers from Area 6 (including one Abdul Malek bin Ishak) and from the Main Drain Reserve as shown in sch. C attached to the said agreement and I also ordered damages to be assessed by the Deputy Registrar with costs to the plaintiff.

As a result of the defendant's failure to comply with the said order, the plaintiff applied for leave to commit one Lim Soon Peng, a director of the defendant. Having obtained leave on 12 September 1997 the plaintiff then filed a notice of motion (encl. 25) for an order for committal.

Preliminary Objections

On the hearing of the notice of motion, Mr. Paul Kwong for the director raised two preliminary issues. Since parties agreed that they were prepared to argue on the two issues I heard arguments. Taking both the objections together Mr. Paul Kwong pointed out that (a) the order dated 27 February 1997 was not served on the said director, and (b) the order itself failed to have indorsed on it a penal notice pursuant to the rules. He relied on O. 45 r. 7(3)(a) and sub-r. (4)(b) of the Rules of the High Court 1980 (the RHC). It is relevant to reproduce the said sub-rules.

Order 45 r. 7(3)(a) reads as follows:

(3) Subject as aforesaid, an order requiring a body corporate to do or abstain from doing an act shall not be enforced as mentioned in r. 5(1)(ii) or (iii) unless:

(a) a copy of the order has also been served personally on the officer against whose property leave is sought to issue a writ of seizure and

sale or against whom an order of committal is sought; and

Order 45 r. 7(4)(b) reads as follows:

(4) There must be indorsed on the copy of an order served under this rule a notice in Form 87 informing the person on whom the copy is served:

...

(b) in the case of service under para. (3), that if the body corporate neglects to obey the order within the time so specified or, if the order is to abstain from doing an act, that if the body corporate disobeys the order, he is liable to process of execution to compel the body to obey it.

Court's Findings

Mr. Paul Kwong referred me to Capital Insurance Berhad v. B.S. Sidhu (Beramalan Sebagai Tetuan B.S. Sidhu & Co) [1996] 3 AMR 2977 where the Court of Appeal held that although the respondent was present in court and heard the said order, under O. 45 r. 5(1) and (7) of the RHC the respondent must be served with the order personally. Only then can he be said to have wilfully disobeyed the order. The court held that in contempt proceedings which affect the liberty of the subject, before such a court order can be enforced, there must be strict compliance with the relevant rules which relate to service of the order on the respondent. It did not matter that the respondent was, in those proceedings, counsel who was present in court.

On the issue of the need to indorse the penal notice on the said order dated 27 February 1997 the plaintiff relied on Class One Video Distributors Sdn Bhd & Anor v. Chanan Singh a/l Sher Singh & Anor [1997] 3 CLJ 694 where Haidar Mohd. Noor J in dealing with an individual and not a corporate body held that pursuant to O. 45 r. 7(4) the penal notice must be indorsed on the copy of the order "served under this rule" and that service under this rule meant personal service. Once these two requirements are complied with, he held that the order may be enforced by an order of committal under O. 45 r. 5. In effect he followed the decision of Chao Hick Tin JC (as he then was) in Allport Alfred James v. Wong Soon Lam [1989] 1 MLJ 388. The learned Judicial Commissioner there held that for a mandatory injunction, personal service must be effected before enforcement may be taken and he further held that there was no e