Failure to pray for a remedy doesn’t remove the Court’s jurisdiction to grant relief

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A common matter that comes up post-trial would be that a particular set of (crucial) relief hasn’t been prayed-for.

These are the vicissitudes of litigation; claims are protean in nature and very often, what occurs post-trial may not be precisely encapsulated by the parties’ pleadings.

The jurisdiction of the Court to grant relief

In such a situation, the Court is still empowered to mould the relief and ensure an equitable remedy. This principle may be seen in Sykt Faiza v Faiz Rice [2019] 7 MLJ 175.

Here, the Plaintiff sought relief in the form of a mandatory injunction. This had not been prayed-for in the SOC.

The Defendant objected to this.

The High Court (speaking through Wong Kian Kheong J, presiding JCA) determined that the Court would be empowered to grant relief. Citing authorities of the CA and FC, His Lordship determined as follows:

S. WHETHER THE COURT SHOULD ORDER THE FIRST DEFENDANT TO CHANGE ITS NAME

[127] When I delivered my oral judgment on 12 April 2017, Ms Kuek applied orally for a perpetual mandatory injunction to compel first defendant to change its name so as not to ride on the first plaintiff’s goodwill in respect of Faiza trade name (‘Ms Kuek’s application’). The defendants had objected strenuously to Ms Kuek’s application on the ground that such a remedy had not been pleaded in the amended statement of claim in the first suit and statement of claim in the second suit (‘two SOC’s’).

[128] Firstly, the two SOC’s have prayed for ‘further and/or other relief’ as the court deems fit and proper (‘general prayer for relief’). The following appellate cases have decided that the court may grant any remedy in the interest of justice pursuant to a general prayer for relief: 

(1) Salleh Abas FJ’s (as he then was) judgment in the Federal Court case of Lim Eng Kay v Jaafar bin Mohamed Said [1982] 2 MLJ 156 at p 159; [1982] CLJ Rep 190 at p 198; 

(2) the Court of Appeal’s decision delivered by Gopal Sri Ram JCA (as he then was) in Tan Tek Seng @ Tan Chee Meng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 at pp 300–301; [1996] 2 CLJ 771 at pp 814–815; 

(3) the majority judgment in the Court of Appeal given by Zainun Ali JCA (as she then was) in Pentadbir Tanah Daerah, Pontian & Ors v Ossons Ventures Sdn Bhd [2009] 6 MLJ 182 at pp 190–191; [2009] 6 CLJ 713 at pp 723–724; and 

(4) Abdul Aziz Abd Rahim JCA’s judgment in the Court of Appeal case of Zulkiflee bin SM Anwar Ulhaque & Anor v Arikrishna Apparau & Ors [2014] 3 MLJ 553 at para 64. 

[129] Secondly, when the court considers an equitable remedy such as an injunction, the court may mould the equitable relief to achieve justice in a particular case — please see Gopal Sri Ram JCA’s (as he then was) judgment in the Court of Appeal case of Sinar Wang Sdn Bhd v Ng Kee Seng [2005] 2 MLJ 42 at para 31. It is therefore clear that the court is not barred from granting a particular equitable remedy due to a party’s failure to pray expressly for such a remedy.

The Court granted the perpetual mandatory injunction, despite the same not being specifically prayed-for. 

Key takeaways

The Court acting post-trial is in a very different position than that pre-trial. Having heard and assessed the evidence, the Court is empowered to craft and mould the relief granted to ensure that equity and good conscience are achieved as-between the parties.

For parties to submit that the Court is duty-bound to adhere rigidly to the relief prayed-for is not completely accurate. A trial Judge, having assessed, the relief prayed-for and the facts (as they come a tumbling down during trial) will not be rigidly bound by the cold letter of the claim.  

Wong J’s decision was affirmed by the CA.

Refer also: 

• CA in Faiz Rice Sdn Bhd & Anor v Syarikat Faiza Sdn Bhd & Anor (W-02(IPCV)(W)-1276–07 of 2017, unreported)

• Lianmark v Al-Ambia [2021] MLJU 272

• Pintaras Geotechnics v Twin H Engineering [2021] MLJU 695

• Kembang Serantau v Perbadanan Putrajaya (CA) [Civil Appeal No.: W-01(NCVC)(W)-124-03/2022] (Para. 36)

• Lim Eng Kay v Jaafar [1982] CLJ (REP) 190

• Tan Tek Seng v Suruhanjaya [1996] 2 CLJ 771

• Zulkiflee v Arikrishna [2014] 3 MLJ 553

GAVIN JAYAPAL

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