FEBRUARY 22 — There are two modes or ways by which proceedings may be begun in the courts: (a) writ of summons, and (b) originating summons.
Proceedings in which a substantial dispute of fact is likely to arise must be begun by writ. For example, an action for defamation must be commenced by writ as there is likely to be a substantial dispute of fact.
Of the two modes, commencement by way of a writ is the most common.
A writ is filed together with a statement of claim, which is the first pleading in an action commenced by writ.
“Pleading” is the term used in civil actions to denote a document in which a party to proceedings in a court of first instance is required by law to formulate in writing his case or part of his case in preparation for the hearing.
Pleadings are therefore documents or written statements of fact containing all material facts on which the parties rely for the purpose of establishing a claim or defence. They are exchanged between parties in the civil proceedings.
Apart from statement of claim, pleadings include defence and any counterclaim and any reply and defence to counterclaim. They also include any subsequent documents used to express the party’s case.
Pleadings serve a two-fold purpose. First, pleadings inform the opposite party what the case of the party is, which the opposite party will have to meet before and at the trial.
Accordingly, issues and questions which are in dispute between the parties must be defined with clarity and precision. Pleadings also serve as a fair and proper notice to the opposite party so as to enable him to frame and prepare his own case for trial.
Secondly, pleadings inform the court what the precise matters in issue are between the parties, issues which the court alone may adjudicate.
Pleadings also constitute a permanent record of the issues and questions raised in the action and decided therein so as to prevent future litigation upon matters already adjudicated upon between the litigants or those privy to them.
Since a statement of claim is the first pleading, it is customary to commence it with brief introductory averments or statements of who the parties are, what are or were the relations between them and other surrounding circumstances leading up to the dispute.
These are followed with statements of the material facts relied on to support the relief or remedy claimed. The statement of claim will close with the “prayer”, setting out in numbered sequence the relief or remedy claimed.
That is why we read in the report “Azam Baki sues Bloomberg for RM100m over report on shareholdings” averments by Malaysian Anti-Corruption Commission (MACC) chief commissioner Tan Sri Azam Baki Azam that he had complied fully with asset-declaration rules, disposed of the shares before they were issued, and had legitimate financial means for his investments.
He further avers the Bloomberg report “created a false narrative by emphasising earlier allegations that had already been addressed”.
The MACC chief is seeking, among others, damages for harm to his professional reputation and standing, an injunction to block Bloomberg from repeating the contested statements, an order to remove the article within three days of judgment, and a published apology in newspapers and on social media platforms approved by his lawyers.
His claim also includes legal costs and any additional relief deemed appropriate by the court.
The above are the “prayer” which sets out in sequence the reliefs or remedies sought.
By his statement of claim, Azam Baki, who is the plaintiff – the one who sues – pleads a reasonable cause of action against the defendants – the ones who are sued.
For this purpose, the statement of claim must follow the basic rule of pleading and contain in a summary form all the material facts on which the plaintiff relies for his claim.
In an action for defamation, the basic rule is the statement of claim must contain, other than introductory averments, the followings:
1. the allegation of publication;
2. the words complained of;
3. reference to the plaintiff;
4. the defamatory meanings;
5. the allegation of damage;
6. a claim for aggravated and/or exemplary damages (if appropriate); and
7. the claim, if any, for an injunction.
By his statement of claim, Azam Baki must disclose a cause of action and a legal liability in the defendants.
This means the statements of the material facts which he relies on which must be such as to show that, taken together and assuming that they can be proved and are true, constitute a substantive, viable legal right which may be claimed or enforced against the defendant or defendants.
The principle is this: he who asserts the existence of any fact must prove the facts exist. Accordingly, Azam Baki must prove the facts he relies on for his claim.
By his civil action, therefore, he puts himself to strict proof of the facts he avers – as lawyer would say – in a court of law.
So, whether you love him or loathe him, you’ve got to commend him for commencing a civil action against Bloomberg, more so within days of the latter’s report.
By action, he does not simply go nyet, nyet, nyet – to borrow the word of former economy minister Datuk Seri Rafizi Ramli.
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
