Parties

It is necessary to determine whether the party suing (the plaintiff) or the party sued (the defendant) :

(a) is sui juris (of the age majority; and
(b) is in compos mentis (in his right mind); and
(c) is acting personally (ie pursuing his own claim) pr in s representative capacity.

If the plaintiff is an infant or a patient as defined in the Mental Disorders Ordinance 1952, he/she is considered to be under disability and can only sue by his/her next friend. If such a person is sued, he can only defend by his guardian ad litem.

If a party acts in a representative character, for example, as the legal personal representative in an administration action, that representative character must be clearly and precisely shown. Any person whether or not he sues as a trustee or personal representative or in any other representative capacity may act in person or by a solicitor. Two or more persons claiming to be partners in respect of a cause of action may sue or be sued in the name of the partnership firm.

If the plaintiff dies, the executor or the administrator of his estate will be the person to apply for the order to carry on with the proceedings. When one or two or more plaintiffs die, if he cause of action is a joint one, the surviving plaintiff or plaintiffs can continue the action without adding the personal representative of the deceased plaintiff. If the action is not a joint one, the personal representative of the deceased plaintiff may obtain an order to carry on with the proceedings.

In the case of the death of the defendant, if he is the sole defendant and the cause of action is one that survives, the plaintiff may apply for an order to continue the proceedings against the executor or administrator of the deceased defendant. Alternatively, the executor or administrator may apply to be substituted for the defendant. Until and unless such executor or administrator is added or substituted, the action cannot be continued.

An Introduction To Civil Procedure

Some understanding of civil procedure can go a long way in helping bankers understand the mechanism of loan recovery. Although at this stage the process of loan recovery will be in the hands of the bank’s lawyers, a little understanding of the mechanism may help the bankers to decide on and give proper instructions to their lawyers.

Knowledge of civil procedure is of paramount importance if the process of loan recovery is to be a success.

In SA Andavan v Registrar of Land Titles, Negeri Sembilan [1977] 2 MLJ 222, Ajaib Singh J (as he then was) advised as follows :

… parties in a civil suit should observe the rules of procedure with mericulous care because failure to do so may well result in irreparable set-backs for them and it is not often for the court to take it upon itself to free the parties from difficulties of their own making and put them on their feet again.

For the purposes of recovery of a debt, secured or otherwise, a civil action is commenced. The rules and procedures in respect thereof are governed by the Rules of the High Court 1980 for actions in the High Court and actions in the Subordinate Courts are governed by the Subordinate Courts Rules 1980. The rules and procedures in the High Court are basically similar to that in the Subordinate Courts.

Civil procedure regulates all proceedings in Court. The Rules of the High Court 1980 (which came into force on 1 April 1980) provides for the ‘just, expeditious and economical’ disposal of such proceedings.

When a lawyer is consulted regarding litigation, his client is in effect seeking advice as to his rights and obligations on the facts pertaining to his claim or the claim against him. The lawyer will then decide whether the case is contentious or non-contentious. A contentious case will involve a trial. A non-contentious case does not involve the trial of an action.

On receiving instructions from the client, the lawyer will determine :

(a) whether an action in Court or an application to Court is necessary;
(b) the parties to the action or application;
(c) the cause of action; and
(d) the proper relief or claim sought by the client.

In other words, the lawyer takes instructions from the client and on those instructions he/she determines the cause and the form of action properly to be taken in accordance to civil procedure.

Loan Recovery

It has often been said that to lend money is easy but to recover it is something else. Loan recovery is of great concern to bankers.

Recovery of unsecured loans also occurs in situations where the bankers are suing the guarantors of the loan. In a normal loan agreement secured by guarantee, the principal debtor and the guarantor is usually made jointly and severally liable for the loan and in such a situation, the guarantors are usually personalities of some means and it is only natural that bankers would proceed against the guarantors with the hope that the loan advanced can be recovered.