INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

FINAL ASSESSMENT
SEMESTER 2, 2020/2021 SESSION

AHMAD IBRAHIM KULLIYYAH OF LAWS

Programme : Bachelor of Laws Level of : Fourth

Study

Time : 9.00 a.m. Date : 9/6/2021

Submission Date : 10/6/2021

Submission Time : 12.00 p.m. (noon). Section(s) : All Sections

Course Title : Civil Procedure 2 Course Code : LAW 4211

Civil Litigation LAW 4221

INSTRUCTIONS TO CANDIDATES

1. This is an open book test.

2. This paper contains two parts, Part A (10 marks) and Part B (25 marks). Part B has
three (3) questions, Question B(I) (12 marks)., Question B(II) (12 marks) and Question
B(III) (13 marks). Part A and Part B (III) is COMPULSORY for all students. Students
may choose to answer Question B(I) or Question B(II) in Part B to complete the 25
marks in Part B.
3. Submission of answer can be made typewritten work in the Answer Booklet submitted in
word document/pdf document via email to the respective lecturer.
4. The submission date and time for the answer book is on Thursday 10/6/21 at 12 pm
(noon) to your respective lecturer via his or her emails.
5. Late submission will be penalized. If you encounter any problem during the submission
process, please contact your lecturer immediately.
6. You are not allowed to communicate with any students or any other person regarding the
test for the duration of the test.
7. Submitting answer book with substantially similar and verbatim answers amount to
plagiarism which is an offence under the university rules and regulation.
 PART A
COMPULSORY
(10 MARKS)

Mona binti Abdullah seek your legal advice relating to a tragic death of her sister,
Maryam 42, who died due to the collapse of a bridge at MRR2 highway. The incident
occurred on 3rd March 2021 at 5.50pm opposite the Terminal Bersepadu Selatan (TBS) in
Bandar Tasik Selatan. Mona informed you that the deceased was a single mother and
worked at a factory to raise her two children age 15 and 13 after her husband passed
away. Her sister was on the way to work when a bridge collapsed and crashed onto the
factory van she was in and she died at the scene. Both of the children are now staying
with her because she is the only relative that they have. She fears and worries for the
future wellbeing of the children and would want the people who caused the incident to be
responsible. Mona also informed you that the video and photograph of the incident has
gone viral in the social media, and this may affect the state of mind of the children who
are still grieving.

Mona also showed you several newspaper cuttings reporting on the incident. ABC News
reported the initial finding of the Kuala Lumpur Traffic Investigations and Enforcement
Department. The Chief Assistant Commissioner said, “initial investigations revealed the
incident is believed to have been caused by a lorry, one loaded with an excavator as its
cargo, that crashed into the ongoing construction site.” This finding was also affirmed by
the Kuala Lumpur Fire and Rescue Department (BOMBA) and the Cheras Fire Stations
who were at the site.

Another newspaper, the Daily News reported that police investigations revealed a trailer
which was transporting an excavator, collided with a pedestrian bridge steel frame at the
construction site which is Sungai Besi-Ulu Kelang Expressway (SUKE) at around 6 pm.
They also published a photograph of the incident showing a van underneath the steels
scaffoldings. The news also reveal that the driver of the trailer had lodged a report at the
Sungai Besi police station and the police has apprehended him for further investigation
for reckless driving. It was later revealed that the driver was driving under drugs
influence where traces of methamphetamine was found in the urine sample of the 40-
year-old driver and accordingly he was arrested and will be remanded.

There was also a statement that the Highway concessionaire, SUKKI Sdn Bhd, in charge
of the Elevated Expressway Project, said the accident occurred when an “overloaded
trailer” crashed into a scaffolding at the site but denies any affiliation with the trailer
driver. According to them the trailer was not involved in the construction of the highway
and in fact he was driving a private vehicle when the accident occurred. Nevertheless, an
issue was highlighted in regard to the safety of the project since a similar incident
occurred a month ago where a crane toppled killing three workers and injuring a public.

2
PV Newspaper also reported on the incident. They have interviewed a resident who lived
near the incident location, Amir Salim who said he heard a loud sound like a thunder
when he was at home before seeing the construction structure collapsed. He further said
“After seeing the falling bridge, I rushed to the location and found many people had
gathered there, some taking video and photographs of the incident. The accident also
caused a two-kilometers-long jam as the crash happened in the middle of the road,”.

Based on the above information Mona wants to know the following:

1. What can she do and how can the law help her and the children of her deceased
sister to continue living and have good education?
(1.5 marks)

2. Who would be the possible party or parties to be sued and what will be the reason
for suing and what challenges they may face in commencing the sued?
(1.5 Marks)

3. When can a case or an action be filed? Are there any limitation period governing
cases such as this? How long will it take and what are the litigation process
involve before the case could be settled?
(2 Marks)

4. How to stop the circulation of the video and photographs of the incident by the
newspaper and in the social media by the bystanders? Can this be done even
before a case be filed? How? (1.5Marks)

5. What kind of evidence(s) can they relied on to prove the case against the
defendant (s) and how to get them; and can they rely on the newspaper cutting as
evidence to prove the facts?
(1.5 Marks)

6. What kind of remedies can they seek from the court and can the court award any
remedy even if the parties did not plead it? (2 Marks)

Advise Mona on the above issues and support your answer with legal authorities.

3
 PART B (25 Marks)

This Part contains three Questions.

Questions B(I), Question B(II) and
Question B(III)

Please Choose either Question B(I)

(12 Marks)

OR

Question B(II) (12 Marks).

Question B(III) is Compulsory

(13 marks)

4
 QUESTION B (I) (12 Marks)
Answer All Questions

Question 1

Kencana Global Sdn. Bhd instructed Messrs Abraham & Tan to file Writ of Summons
and Statement of Claim against Medi-Pharma Sdn Bhd for patent infringement. The writ
of summon and Statement of Claim was filed on 20 April 2021. The document was
extracted on 23 April 2021 but was only served on the Defendant on 4th May 2021.

In the meantime, the Defendant has appointed your firm to act on their behalf and to file
the Memorandum of Appearance as soon as possible. Upon reading the Statement of
Claim, you notice that the particulars in the Statement of Claim are not sufficiently
specific which cause you having difficulties to prepare the Statement of Defence.

Since you are a pupil at your firm, your master asked you to prepare the following: -

i. Based on the facts of the case and legal authorities, how do you calculate the
deadline for you to file the Memorandum of Appearance.

(1 marks)

ii. Practically, what is the appropriate process under the Rules of Court 2012 that
you can use to ease you in preparing Statement of Defence when the Statement of
Claim are not sufficiently specific.
(2.5 marks)

iii. Based on your answer in (ii), assuming that Messrs. Abraham & Tan does not
response to your request, what will be the next procedural step to take to enable
you to prepare and file your Defence within time?
(2.5marks)

Question 2

On the other hand, assuming you are working as a Partner at Messrs. Abraham & Tan,
and you notice there are several mistakes in the Statement of Claim filed by your Legal
Associate.

i. What is the best procedure to cure the mistake in the Statement of Claim prepared
by your Legal Associate?
(1 marks)

5
ii. Assuming that the pleading has been deemed closed, how do you rectify the
mistake in the Statement of Claim and what is the best explanation to the court to
justify the mistake.
(2 marks)

iii. Assuming that there are numerous and major mistake in your Writ of Summon
and the Statement of Claim, what is the best possible procedure for you to rectify
the mistake.
(1.5 marks)

iv. Based on your answer in Question 2 (ii) above, can the Defendant file amendment
to their Defence if there have already filed their defence before receiving the
amended document from the plaintiff?
(1.5 marks)
(End of question B(II))

OR

Question B (II) (12 MARKS)

ANSWER ALL QUESTIONS

Liam Engineering Sdn. Bhd. (“LESB”) is in the business of selling, marketing and
distributing marine and industrial engines, generators and other engineering equipment
and products. Noah Contractor Sdn. Bhd. (“NCSB”) is the main contractor of a project
known as “proposed construction of 3 storey Data Centre” (“the project”). The employer
of the project is Oliver Data Sdn. Bhd.

By way of letter dated 1 November 2018, NCSB appointed LESB as a nominated sub-
contractor to supply, deliver, install, test and commission and maintain installation
services for the project for the sum of RM20.5million (“the contract”). Around 16
December 2018, NCSB paid LESB a sum of RM2million as down-payment.

Pursuant to the contract, LESB claimed that it had carried out works and had issued
progress claims totaling RM14,644,647.95. The progress claims were submitted to the
project’s mechanical and electrical engineer, Mary Consultants Sdn. Bhd. and the
architect, Julia Architect for the certification of the value of work done.

As at 16 October 2019, Mary Consultants Sdn. Bhd. and Julia Architect certified the
value of LESB’s works as RM16,336,972.15. LESB claimed that a balance sum of
RM15,786,972.15 is now due and outstanding from NCSB. LESB filed Writ against
NCSB to claim for that balance sum. In its defence, NCSB denied that it is liable to pay
LESB and that NCSB was the only person that could certify the value of work done by
the LESB since they did not approve the appointment of the architect.

6
 Based on the above facts and with reference to Rules of Court 2012 and legal authorities,
discuss the following legal issues:

i. Does the Rules of Court 2012 provide any mechanism to obtain a quick judgment?
Briefly discuss the said mechanism.
(1.5 marks)

ii. State the most suitable application that LESB can seek from the court in order to
obtain the quick judgment and explain the rule, procedure and the requirement that
must be fulfilled for the application to succeed? (4 marks)

iii. What should LESB do once it has filed the summary judgment application?
(1 marks)

iv. On the other hand, assuming that you are acting for NCSB, what would be your
argument against the application and if NCSB wants to rely on a documentary
evidence, state the manner on how the evidence can be produced in court at the
hearing of the application.
(3.5 marks)

v. Upon hearing the application, the Judge allowed LESB’s application for the amount
of RM15,786,972.15 against NCSB. What should NCSB do if they disagree with
the judgment and what procedure should it follow? (2 mark)

7
 QUESTION B(III)
COMPULSORY
(13 MARKS)

Facts:

Datuk Mehboob is a leader of Parti Makmur Bersama (“PMB”). He owned a Facebook

Account by the name of “Mehboob Sariye”. On 1st April 2021, he posted in his Facebook
account a video of his talk titled “Save Malaysia” (“the Video”). The excerpt of the said
Video is as follows: -

“Enough of this hypocrisy! In the public eyes, you portray yourself as a saint, but
at the back, you are actually a corrupted person, and lack of integrity. As a
religious leader of a well-known Dakwah Association in Malaysia, you are
supposed to be sincere and truthful. Your holier-than-thou attitude with your
religious garb only for public view, whereas you actually are someone who
practice hedonistic lifestyle like partying and womanizing. I heard that you
consume alcohol and involve in unnatural sexual behavior too.

Ustaz Sepet*, Ustaz Sepet! Enough is enough. Enough of this acting of making
donation here and there. For all we know, the donation might come from haram
sources. You just craving for attention and likes. Maybe with all this fame, it’s
easier for you to fulfill your never-ending desire”.

(*Sepet – refers to the slit eyes of a Chinese)

The said Video had been viewed 14,000 times and shared by 23,456 people.

Dr. Daniel Chua is a President of Dakwah Fardhiyah Association Malaysia (“DFAM”).

He is considered as philanthropy by Malaysian citizen. He always makes donation to
charitable organization and needy people. He had been awarded as “Tokoh Isra’ Mikraj”
for the year 2020. He is called “Ustaz Sepet” by netizen due to his facial appearance.

After publication of the said Video, many Facebook users tagged Dr Daniel in the
comment of that posting and accused him of being “munafiq” and religious hypocrite.

Dr Daniel appointed you as Solicitors to file legal action against Datuk Mehboob.

Proceedings:

You have filed Writ Summons and Statement of Claims against Datuk Mehboob. Datuk
Mehboob appointed Messrs. Scroll & Co to represent him and file his Statement of
Defence. In the Statement of Defence, Datuk Mehboob had pleaded defence of
justification and fair comment.

The High Court had instructed to file Common Bundles of Documents, and witness
statement for the purpose of the trial.

8
 Questions

i. You had decided to put in the Video, the screenshot of the Facebook posting, as
well as screenshot of the shared posting in the Common Bundle of Documents.

Explain the best method to put the Video and Screenshot in the common bundle of
documents in light of Evidence Act 1950 and decided case. (4 marks)

ii. You have proposed to the Defendant’s Solicitors to put the Video in Part A of the
Common Bundle of Documents, and the Defendant’s Solicitors agreed to it.
Before commencement of the trial, the Defendant’s Solicitors raised a preliminary
issue. The Defendant’s Solicitors argued that since the Video was agreed by both
parties to be put in Part A, the authenticity and the content of the Video was
deemed to be agreed and admitted by both parties. Hence, the content of the
Video (which contain the defamatory remark) was argued to be true, and the
defence of justification has been automatically made out. In light of the above
circumstance, the Defendant’s Solicitors argued that the Defendant don’t have to
prove anything anymore.

Prepare your reply-submission to the above preliminary points with supporting

authorities. (3 marks)

iii. In the witness statement filed by the Defendant’s Solicitors, Datuk Mehboob take
the stand that the remark made in the said Video is not meant for Dr. Daniel Chua.
In fact, Datuk Mehboob stated that he never mentioned Dr. Daniel Chua’s name
at all in the video.

Prepare your cross-examinations question to extract admission from Datuk

Mehboob that he actually meant to refer to Dr Daniel in his Video. Your cross-
examination notes should contain the potential answer that will be given by Datuk
Mehboob.
(2 marks)

iv. In the witness statement of Datuk Mehboob, he stated that the Facebook account
by the name of “Mehboob Seriye” is not his Facebook account and he has no
control whatsoever on the said account. He further stated that the Facebook
account was created by 3rd party who want to smear his name. The said facts have
not been pleaded in the Statement of Defence.

During Examination in Chief, you have inadvertently failed to object to the said
question on ground of it being not pleaded. In the closing submission, you have
raised an argument that the statement should not be accepted as it was not
pleaded. The Defendant’s Solicitors argued that since you have failed to object
during Examination in Chief, you are estopped from raising it in the closing
submission.

Prepare your reply-argument with supporting authorities. (2 marks)

9
v. Explain the principle in Browne v. Dunn [1893] 6 R 67 with regards to
fundamental rule in cross-examination, and whether the principles have been
accepted in Malaysia?
(2 marks)

END OF QUESTIONS

10