JUDGMENT

Mokhtar Sidin JCA:

The respondent was the plaintiff in the court below (hereinafter referred to as "the plaintiff"). He was appointed on 29 December 1971 as Pegawai Keselamatan by the Suruhanjaya Pelabuhan Pulau Pinang (hereinafter referred to as "the appellant"). By a letter dated 15 May 1980, the Inspector-General of Police informed the plaintiff that his powers as an auxilliary police had been withdrawn. On 26 September 1980 the personnel manager of the appellant wrote to the plaintiff stating that:

(i) due to the fact that his powers as an auxilliary police had been withdrawn the Board decided to terminate his service as a security officer and remove him from the Security Department permanently;

(ii) the Board decided to place him on the Management Service Department as a works study officer for a period of six months with effect from 1 September 1980 to find out whether he could carry out his duties as such officer; and

(iii) his position as a works study officer would be reviewed within six months from the date of appointment.

After the six months period, ie, on 30 April 1981 the plaintiff received a letter from the personnel manager of the appellant informing him that his placement as a works study officer was extended for a further period of twelve months with effect from 1 March 1981 subject to review at the end of the period. By a letter dated 16 November 1982, the plaintiff was asked to attend a medical board at the Penang General Hospital on 3 December 1982. By a letter dated 30 March 1983 the plaintiff was informed that he had been retired on medical ground. The plaintiff then took up the present action seeking a declaration that his retirement was unlawful and that he be reinstated to his former position. At this stage we are not concerned with the merits of the plaintiff's action.

When the plaintiff took up this action he named the appellant as the first defendant and the Government of Malaysia as the second defendant. The writ and the statement of claim were dated 31 March 1986. On 13 April 1987 the appellant filed their statement of defence. Subsequent to that the plaintiff applied to substitute the appellant with Penang Port Sdn. Bhd. as the first defendant. By consent this application was allowed on 26 September 1995. As a result of that Penang Port Sdn. Bhd. became the first defendant in place of the appellant who then ceased to be a party to the action. From the record it was not known why this application was made. The reason for doing so surfaced when the plaintiff made a second application to substitute the appellant as the first defendant in place of Penang Port Sdn. Bhd. and to name Penang Port Sdn. Bhd. as the third defendant.

The second application to substitute was made by way of summons-inchambers dated 13 February 1995 (apparently the date should read 13 February 1996 because it was entered in the court's record as 245/ 96). On 21 May 1996 the learned judge allowed the plaintiff's claim. From the record, it appears that the caption of the parties (p. 39 of the record of appeal) is misleading. As can be seen the caption of the parties after the first amendment dated 26 September 1995 (p. 67 of the record) the words "(formerly known as Suruhanjaya Pelabuhan Pulau Pinang)" after the words "PENANG PORT SDN. BHD." had been deleted. However, in the summons-in-chambers dated 13 February 1995(?) was filed these same words reappeared again. We are not sure whether this was done intentionally or otherwise. If it was done intentionally we are of the view that this was done to mislead the court and certainly we are not happy that this was done. From the record at p. 67 it is clear that as from 26 September 1995 the first defendant was PENANG PORT SDN. BHD. since the rest of the words had been deleted.

In the summons-in-chambers dated 13 February 1995(?) the plaintiff made an application to amend the amended writ and statement of claim dated 26 September 1995 by reinstating the appellant as th