SH v GM [2023] SLRHU 1

Syariah High Court (Shah Alam)

Interlocutory Preliminary Objection

1. This matter pertains to the objection raised by the Applicant through an interlocutory application, supported by the affidavit of the Applicant sworn on 27 May 2022, wherein the Applicant seeks the following relief:

(a) An order from the Court to strike out paragraphs 4, 5, and 6, along with the annexure GM-3, contained in the Plaintiff’s Statement of Claim dated 22 November 2021, in the proceedings identified as Case No: 10300-XXX-XXXX-2021.

2. On 22 November 2021, the Respondent filed an Application for the Validation of Hibah through Case No: 10300-XXX-XXXX-2021. In addition to the statements in Paragraphs 4, 5, and 6 of the Statement of Claim, the Respondent also submitted the document marked GM-3 in the suit as evidence that he is the beneficiary of the Hibah.

3. The Donor of the Hibah, the late AR a/l S @ H (“the Deceased”), passed away on 14 May 2007 in Haroldsbach, Germany, and this was confirmed through the Malaysian Embassy’s Letter dated 28 April 2014.

4. The Applicant, on the other hand, is the elder brother and sole heir of the Deceased.

5. On 30 May 2022, the Applicant filed a preliminary objection supported by an Affidavit affirmed on 27 August 2018, on the following grounds:

(a) That there exists a material defect in the Statement of Claim, particularly in respect of the annexed document, which is irrelevant and inapplicable to the Application for Validation of Hibah; and

(b) That the document marked as GM-3 constitutes a will executed by the late AR A/L S @ H in favour of Ghori Mohammad bin Abdul Majeed Mustaffa, and is therefore unrelated to the Application for Hibah validation and the cause of action therein.

6. The Respondent opposed the Applicant’s preliminary objection and accordingly filed an Affidavit in Reply dated 12 August 2018. In response, the Applicant filed a Further Affidavit dated 16 November 2022.

7. Thereafter, the Applicant filed Written Submissions on 3 February 2023, while the Respondent filed theirs on 30 January 2023. The Court has fixed the matter for decision on 30 March 2023.

1. Whether the Preliminary Objection has merit to be heard?

(a) The Court emphasized that an interlocutory application (Preliminary Objection) seeking to strike out proceedings on the grounds of irregularity (in the case) is typically confined to the determination of issues pertaining to jurisdiction and/or questions of law.

(b) Such an application is not intended to resolve issues of fact, which remain to be proved and/or established in terms of their veracity and/or admissibility. Matters concerning the truth and/or admissibility of facts can only be determined in a full trial, after the Court has heard and evaluated the evidence presented by both parties.

(c) As interlocutory proceedings do not involve the consideration of factual matters, no documentary evidence may be introduced at the hearing of such an application.

(d) With due respect, the Court wishes to state that the Shariah Court of Appeal of Selangor has provided guidance on this matter in the case of MAIS v HGD Sdn Bhd [2011] SLRAU 13. In that case, the Panel of Judges of the Shariah Court of Appeal held –

‘Kami berpendapat bahawa isu ini bukan merupakan isu bidangkuasa atau melibatkan persoalan undang-undang. Sebaliknya ia merupakan isu tentang fakta yang perlu diputuskan selepas mendengar dan memperhalusi keterangan semua pihak yang berkaitan. Ianya sudahpasti hanya berlaku melalui perbicaraan penuh….’

(e) The Applicant, in their application, asserts that there are several defects in the Respondent’s Statement of Claim dated 22 November 2021 in Suit No: 10300-044-0593-2021, which should be considered or addressed by the Court.

(f) In the Applicant’s affidavit, it is stated that this Court should strike out paragraphs 4, 5, and 6 of the Respondent’s Statement of Claim, as well as Exhibit GM-3 attached to the Respondent’s Statement of Claim, as marked therein.

(g) This is premised on the assertion that paragraphs 4, 5, and 6 of the Respondent’s Statement of Claim are based upon Exhibit GM-3, a document that pertains to a will, which, according to the Applicant, is irrelevant to the Respondent’s claim for the confirmation of Hibah.

(h) In response, the Respondent, in their Affidavit In Reply, avers that although the document GM-3 is titled “Last Will,” the Deceased never had the intention at any material time to bequeath the Property to the Respondent by way of a will. Rather, it was the Deceased’s intention to transfer the Property by way of Hibah without any coercion.

(i) The Respondent further contends that the reference to “Last Will” in the document was a clerical error made by the Deceased inadvertently, and in substance, the term was meant to refer to a Hibah, as opposed to a will, in accordance with the Deceased’s true intent towards the Respondent.

(j) The Court is of the opinion that the Preliminary Objection raised by the Applicant is not an appropriate forum to resolve, clarify, or prove the respective claims or denials of the parties. The Applicant’s challenge is premature in nature.

(k) In order to substantiate the Respondent’s claim for the confirmation of the Hibah over the Property in question, the Respondent must be afforded the opportunity to prove their case through a full trial, during which evidence, whether in documentary form or through oral testimony, may be adduced to substantiate their right to the Property.

(l) The Applicant will, in turn, have the opportunity to cross-examine the Respondent’s witnesses and challenge the evidence adduced through their own testimony or any other means at the trial.

(m) Based on the observations made, the Court held that the Preliminary Objection raised by the Applicant is premature, devoid of merit, and should be dismissed by the Court. This is because the issues raised by the Applicant are fundamental matters that the Court will assess in the Respondent’s claim for confirmation of the Hibah. These matters must be dealt with through a full trial, allowing both parties the opportunity to prove or refute the claim before they can be considered and adjudicated by the Court.

(n) In the interest of justice to the Respondent, the Preliminary Objection raised by the Applicant is hereby deemed to be properly dismissed by the Court. This is consistent with the provisions of section 244 of the Syariah Court Civil Procedure Enactment (State of Selangor) 2003, which stipulates as follows:

‘244. Inherent power of the Court.

Subject to Nothing in this Enactment shall be deemed to limit or affect the inherent power of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.’

(o) As well as the command of Allah in Surah An-Nisa’ (4:58), which translated as follows:

‘Indeed, Allah commands you to entrust all types of trusts to their rightful owners, and when you judge between people, (Allah commands) you to judge with fairness.’

1. Preliminary objections in Syariah Courts are limited to jurisdictional and pure legal issues; not factual disputes that require evidence evaluation.

2. Use preliminary objections sparingly – Preliminary objections should only be raised in cases involving clear jurisdictional or legal defects. They should not be used to challenge factual assertions made in the pleadings. Such objections are intended to address fundamental issues of procedure or law, not to dispute the facts of the case.

3. Focus on procedural irregularities, not substantive merit – Preliminary objections should be used to highlight procedural issues or irregularities rather than engaging with the substantive merits of the case. Disputes over the substantive issues of fact or law are better addressed in a full trial, where both parties have the opportunity to present evidence and arguments.