Question 1

Explain what you understand by the term “cause of action”. Explain the importance
of a cause of action in the civil litigation process. Illustrate your answer by making
reference to the decided cases in your course outline.

Cause of Action
● Before civil action can be commenced, knowing the cause of action is
important. Before commencing an action, you must see if you have a
complete cause of action. It is equally both the concern of the plaintiff and the
defendant. Particularly for the defendant, he must see if the plaintiff has a
complete cause of action for otherwise, the defendant can get the action
struck out under O18 r19(1)(a) of ROC:
Striking out pleadings and endorsements (O. 18, r. 19)
19. (1) The Court may struck out any action on the ground that
(a) it discloses no reasonable cause of action or defence

Lim Kean v Choo Koon:-3 things need to exist

• A Plaintiff Who Can Sue;
• A Defendant Who Can Be Sued; and
• All the Elements for the Cause of Action must exist

● Cause of action is important for 2 reasons:

i) Not having a complete of cause of action will result in the action being
struck out.
ii) The time where one has a complete cause of action determines when the
limitation period starts.

Taib bin Awang

The plaintiff claims damages against the three defendants on the grounds that he had been
wrongfully and maliciously prosecuted in the Kadi's Court for an offence under section 149,
Administration of Islamic Law Enactment, Trengganu, 1955.

It is claimed by the plaintiff that the third defendant had issued a circular on 2.5.81 prohibiting the
performance of Friday prayer at Surau[1983] 2 MLJ 413 at 414 Chendering Pintu Gerbang. The
plaintiff claims that Surau Chendering Pintu Gerbang is not the mosque where plaintiff was the
imam (leader) at the Friday prayer on 31.7.81, as this mosque was gazetted as a mosque vide
PTG. (78) dlm. CLM. 166/53. On that day, 31.7.81, the first defendant and his companions were
at the mosque in the congregation performing the Friday prayer led by plaintiff, and therefore had
committed the same offence but were not charged in the Kadi's Court. On the next day 1.8.81,
first defendant lodged a report to the Syariah Court, Kuala Trengganu, to the effect that the
plaintiff had led a Friday prayer at Surau Pintu Gerbang Chendering, which resulted in the
prosecution of the plaintiff.
Plaintiff, therefore, alleges that the first defendant had lodged a false report against him, and
acting on that report, the second defendant had wrongfully and maliciously prosecuted the
plaintiff.

The State Legal Adviser contended that since the prosecution of the plaintiff ended in his
conviction, the plaintiff had no cause of action for malicious prosecution against the defendants.

Counsel for the plaintiff had submitted at length alleging that the Mufti's circular did not say which
of the mosques at Kampong Chendering was the lawful mosque. He contended that the lawful
mosque was the one in which the plaintiff had led the Friday prayer. The Majlis Ugama Islam had
made a mistake by recognising the wrong mosque. There was malice on the part of the defendants
as out of about 250 people performing prayer at that mosque with plaintiff, only the plaintiff was
prosecuted.

he Statement of Claim does not, however disclose whether the prosecution resulted in the
plaintiff's acquittal or conviction. But counsel for both plaintiff and defendants agreed in Court that
the prosecution resulted[1983] 2 MLJ 413 at 415 in the plaintiff's conviction and that the plaintiff
was sentenced to two weeks' imprisonment by the Kadi's Court; and further that the conviction
was still under appeal when this application came up.

The Statement of Claim does not disclose that the prosecution of the plaintiff ended in his favour.
Indeed the plaintiff's counsel admitted that it ended in plaintiff's conviction and sentence. His
conviction is still under appeal. In Everett v Ribbands & Anor [1952] 2 QB 198, it was held that in
an action for malicious prosecution it is essential for the plaintiff to aver and prove that the
proceeding complained of, terminated in his favour

In an action for malicious prosecution, the plaintiff must prove that —

 (a)the defendants prosecuted him;

 (b)the prosecution ended in the plaintiff's favour;
 (c)that the prosecution lacked reasonable and probable cause; and
 (d)that the defendant acted maliciously.

Since the plaintiff could not fulfill those element because the appeal was yet to be
heard which does not fullfill that the [rosecution ended in plaintiff favour the cause of
action to malicious prosecution could not be establish.

Sio Koon Lin case

Facts: The 1st appellant and the respondent, since deceased, intended to form a limited company
to be known as Kingwood Timber Industries Sdn. Bhd. and commenced trading even before the
registration, as in the statement of claim, with the Registrar of Businesses. The monetary
contribution made by the respondent was $100,000, Later, without the knowledge of the
respondent, the 1st appellant and the 2nd appellant formed a partnership. It dealt substantially
with the same lines as the company and was given the same name Kingwood Timber Industries.
The statement of claim referred to unhappy differences arising from this discovery. The respondent
then desired to withdraw from the business. He accordingly entered into another agreement with
the 1st appellant on September 14, 1972.

Of the several provisions in the agreement, we need concern ourselves strictly with the one
relating to the return of the $100,000. A sum of $15,000 was paid on the execution, leaving
$85,000 to be paid by future instalments. $35,000 was to be paid on or before October 12, 1972
and the balance of $50,000 was to be paid by monthly instalments of $10,000 on the 12th of each
succeeding month. There is not the ordinary provision that in the event of default in the payment
of any one instalment, the remaining instalments shall become immediately due and payable (this
is yet again another example of the effect of having the same solicitor draft agreements between
parties with conflicting interests). The other provisions are concerned with the ascertainment of
the profits. For this purpose the respondent was to have access to the company's books.

Tengok case

Question 2

Besides having a complete cause of action, what other preliminary matters should a
party consider before commencing a civil action?
Before a party decides to commence a civil action, a few preliminary matters must be
fulfilled. If they are not fulfilled, the action may be struck out by the court according to
Order 18 rule 19(1) of the Rules of Court 2012. Among the preliminary matters are
cause of action, limitation, arbitration clause, locus standi, justiciable and
interlocutory applications and orders.