Kota Kinabalu: PAS President Dato' Seri Haji Abdul Hadi filed an application to set aside the judgement in default of appearance entered against him by lawyer Marcel Jude Joseph over his alleged negative remarks on Christianity in a news portal.Counsel Hamid Ismail who filed the application on behalf of Abdul Hadi said the court fixed Sept 8 for hearing of the application. In his affidavit supporting the application, Hadi said based on the court record, Hamid discovered that the court had struck off the civil suit on July 28 this year because its writ of summons had expired on July 26 this year and no renewal of it had been filed."The plaintiff only filed the Certificate of Non-Appearance and Affidavit of Service to obtain the default judgment on Aug 19 this year. By that time, the civil suit had become invalid.
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"The default judgment was therefore irregularly entered and accordingly, it is null and void," Hadi said.According to Hadi, based on the court record, the plaintiff knew the civil suit would be struck off on July 28 this year because the court had sent an email to his counsel on June 27 this year informing him of such consequence if no further action was taken.
Hadi added that based on paragraph 5 of the Amended Statement of Claim, the alleged defamatory statements, which the plaintiff pleaded originated from Hadi, were made in West Malaysia and in the month of January 2016. According to Hadi, he did not enter Sabah in January 2016. In the circumstance, the action against him ought to be filed in the Sessions Court in Malaya, not in Sabah.
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Thus, the civil suit was filed in the wrong jurisdiction as the Sessions Court here had no jurisdiction to hear the civil suit and to enter the default judgement. Therefore, the default judgement is null and void on this ground too.Hadi averred that service of the writ of summons in the civil suit had not been properly affected on him as follows:
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l The plaintiff did not exhibit a copy of the writ of summons and the amended statement of claim and the covering letter in sending those two documents in his affidavit of service. (This raises doubt as to whether the plaintiff did serve those documents to Hadi).l The plaintiff merely exhibited the receipt of posting in his affidavit of service. (The receipt was not proof of receipt).l Perusal of the receipt of posting would also show that the plaintiff did not state Hadi's full name. (The address for service was also not stated in the said receipt).l The plaintiff used the wrong address to send documents to Hadi. (The address 'No 318-A, Jalan Raja Laut, 5030 Kuala Lumpur, Malaysia' stated in the affidavit of service is the address of PAS headquarters in Kuala Lumpur). Hadi also stated that in the civil suit which was filed by Marcel Jude Joseph, he was sued as an individual and not as the PAS President. Hence, any legal document must be served to his residential address at Marang, Terengganu as he does not reside at PAS headquarters.Based on the matters above, the default judgement was irregularly obtained and hence null and void. Therefore, it ought to be set aside ex debitoe justitiate.Hadi also asked the court to exercise its discretion to award him costs of RM20,000 because the plaintiff had purposely entered the default judgement with full knowledge that the civil suit had been struck off and the service of the writ of summons and amended statement of claim had not been properly affected.Thereafter, the plaintiff had also caused the news of him obtaining the default judgement against him to be published on the front page by a widely read local newspaper in Sabah.
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Hadi also said that the plaintiff had abused the court process to obtain a default judgement against him and subsequently to publicise it in order to humiliate him.Hadi averred that he was gravely prejudiced by the default judgement.