Sunday, 28 November 2010

Proceedings Against The Government For Damages

In the Court of Appeal case of Government of the State of Sabah v Syarikat Raspand (suing as a firm) [2010] 5 MLJ 717, it was held as follows:-

"[20] In our view, r 18(2) has given due recognition to the common law position concerning the powers of the Court (of Appeal) to permit or reject the relevant grounds which are neither raised in the High Court nor included in the memorandum of appeal. These new grounds of appeal may be allowed to be argued and hence provide the foundation for consideration and determination by the Court of Appeal. At this juncture, it is appropriate for us to analyse the common law position."

"[33] In the instant appeal, an important issue of jurisdiction (as shall be seen later in this judgment) was raised for the defendant under this head. We would apply the exceptions which were set out in the respective judgments of Lord Parker and Lord Wrenbury in Bank of Banbury, and neatly crystallised by MacIntyre J (as he then was) in Yong Mok Hin, and also the 'interest of justice' approach taken by this court in the plethora of authorities in interpreting r 18(2). Having regard to the justice of this particular case, we do not think that we should shut our mind to this issue by excluding arguments to be advanced by the defendant. We therefore answered the above question in the affirmative and allowed this issue to be ventilated by the parties herein."

"[36] Section 6 expressly prohibits the bringing of any proceedings against the government for damages under s 5 unless the action for such wrongful act, neglect or default would have lain against the officer personally. This is a substantive provision that goes to the jurisdiction of the court. Liability can only be attributed to the government where the officer's act, neglect or default is proved to have established the liability of the officer personally. In the absence of the officer's liability, (which can only arise and bind the officer(s) if and when the officer or officers are cited as defendants), no proceedings shall lie against the government. Where no such proceedings could lie against the government, the court is in no position to exercise any jurisdiction in relation thereto."

"[40] Reverting to the instant appeal, we note that the alleged tortfeasors viz the government servants or officers had not been stated as defendants. This omission on the part of the plaintiff has resulted in the failure to satisfy the requirements of ss 5 and 6. That being the position, no proceedings shall lie against the government ie the defendant herein, and consequentially, the High Court could not exercise jurisdiction in relation thereto."
"[50] As illustrated above, it is trite law that the burden of proof is cast on the plaintiff to establish that the seizure of the logs was made without reasonable or probable cause. This action is tort-based, premised on the seizure made by an individual(s). The Government of the State of Sabah (ie the defendant herein) is not an individual and is incapable of making the seizure. Hence, the singular significance in naming the alleged tortfeasor(s) as defendant(s). Since the alleged tortfeasors are not cited as defendants, no liability can be attributed to them. As the Government of the State of Sabah is incapable of making the seizure, no liability can be attached to it either. That being the case, the plaintiff could not be said to have discharged the burden of proving that the seizure of the logs had been made by the defendant without reasonable or probable cause. Consequently, there can be no question of calling for rebuttal from the defendant."
"[54] The non-citation of the alleged tortfeasors ie the officers as the defendants herein is again fatal to the plaintiff's case in so far as s 40 is concerned. Our interpretation of s 37A applies with necessary modifications to s 40 also. The plaintiff has therefore failed to discharge the burden of proving the tort-based elements viz a malicious, fraudulent or grossly negligent act of the officers set out in s 40."

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