Declaratory Decrees PDF

DECLARATORY DECREES INTRODUCTION Declaratory decree is is applied by a person to seek a declaration of a status or right from the court. Declaration is an authoritative pronouncement by the court in respect of a person’s right to property or his status. It is a binding declaration of rig...

DECLARATORY DECREES INTRODUCTION Declaratory decree is is applied by a person to seek a declaration of a status or right from the court. Declaration is an authoritative pronouncement by the court in respect of a person’s right to property or his status. It is a binding declaration of right in equity with consequential relief. In simple terms, a declaratory decree is one which settles the right and removes the confusion of the status of the party. It does not require a cause of action. RATIONALE In Petaling Tin Bhd v Lee Kian Chan & Ors 2 CLJ 346, Edgar Joseph Jr SCJ stated the rationale of declaratory decree: “To get the desired relief before damage is caused and to seek clarification of the legal position.” DISCRETION OF COURT AS TO DECLARATION OF STATUS OR RIGHT Section 41: Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in that suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so. CONTINUE Legal Character - position recognised by law, and a person’s legal character is made up of the attributes which law attaches to him in his individual and personal capacity and the phrase is synonymous with the word ‘status’. Example: A declaration that A is the son of B. Illustration (d) to Section 41 of SRA describes legal character - A bequeaths property to B for his life, with remainder to B’s wife and her children, if any, by B, but, if B die without any wife or children to C, B has a putative wife, D, and children, but C denies that B and D were ever lawfully married; D and her children may, in B’s lifetime, institute a suit against C and obtain therein a declaration that they are truly the wife and children of B. CONTINUE Right as to any property – entitlement to the peaceful enjoyment of his own possessions. Illustration (c) to Section 41 of SRA describes right to property - A is in possession of certain property. B, alleging that he is the owner of the property, requires A to deliver it to him. A may obtain a declaration of his right to hold the property. See also Illustration (a) and (b). CONTINUE Noorfadilla Ahmad Saikin v Chayed Basiron 1 MLJ 832 The plaintiff applied for and obtained employment as a Guru Sandaran Tidak Terlatih (‘GSTT’). After receiving her placement memo informing her of her posting, she was asked to attend a briefing on the terms of her service of employment. At this briefing, the plaintiff was questioned as to whether she was pregnant. When the plaintiff admitted that she was three months pregnant, her placement memo was withdrawn. The plaintiff demanded that her employment as GSTT be restored but received no written reply. The plaintiff thus sought, inter alia, a declaration that the defendants’ act of withdrawing and/or cancelling her appointment as a GSTT was unconstitutional, unlawful and void and damages. CONTINUE Court: The plaintiff’s application to assert her rights to a legal status was in line with s 41 of the Specific Relief Act 1950 (‘the SRA’). She had not only sought declaratory orders but also damages. Hence, a declaration was a proper form of relief in this case. Section 41 however provides that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration, omits to do so. Hence, the plaintiff is not only seeking for declaratory orders but also for damages. As such, it is clear that the plaintiff has also satisfied the proviso of s 41 of Act 137. EFFECT OF DECLARATION Section 42 of Specific Relief Act: A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, those parties would be trustees. DECLARATORY JUDGMENT (O. 15, R. 16) Order 15, rule 16 in the Rules of Court 2012: No action or other proceeding shall be open to objection merely on the ground that a declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not consequential relief is or could be claimed. CONTINUE In Sugumar Balakrishnan v Chief Minister of Sabah & Anor 1 MLJ 233, the Court held that: It therefore follows from these cases that under the existing law the court's discretion to make declaratory judgments cannot be fettered simply by the fact that in a particular case certiorari is also an available remedy but not applied for by an applicant. That being the case, even if certiorari is available to the applicant, that cannot debar him from seeking declaration. Certiorari - higher court orders a lower court to deliver to it a case record for review of the lower court's decision