No date has been set by the court to hear Hadi’s application.
In an affidavit in support of his application, Hadi claimed that Sabah lawyer Marcel Jude M. S. Joseph’s suit was invalid. He claimed the suit was filed in the wrong court, was wrongly addressed and had exceeded the time limit on filing.
“Hadi also asked the court to exercise its discretion to award him costs of RM20,000. The plaintiff had purposely entered the default judgment with full knowledge the civil suit had been struck off,” added Hamid in the statement. “The default judgment was irregularly obtained and hence null and void.”
Therefore, he argued, it ought to be set aside ex debito justitiae.
Ex debito justitiae, Latin for “as of right”, is where a litigant is awarded something as entitled just by asking for it, in contrast to an award given by judicial discretion.
In recalling the civil suit, Hamid said the court had struck it out on July 28 as the writ of summons had expired on July 26 this year and it was not renewed. “The plaintiff filed the Certificate of Non-Appearance and Affidavit of Service to obtain the default judgment on August 19.”
By that time, he continued, the civil suit had become “invalid”. “The default judgment was therefore irregularly entered. Accordingly, it’s null and void.”
Hamid went on to say the alleged defamatory statements in Free Malaysia Today on January 18, attributed to Hadi, were made in Malaya and any action against his client should not be taken in Sabah. “The civil suit was filed in the wrong jurisdiction.”
The Sessions Court in Kota Kinabalu had no jurisdiction to hear the civil suit and to enter the default judgment, he claimed. “Therefore, the default judgment was null and void on this ground too.”
Lastly, said Hamid, there was doubt on whether the summons was served on Hadi. “Receipt of posting was ‘not proof of receipt’.”
Marcel also did not state Hadi’s full name in the postal receipt as well as the correct address, he said. “Hadi was sued as an individual, not as the President of PAS.”
Hence, he said, any legal document must be served at Hadi’s residential address in Marang, Terengganu.”Hadi does not reside at PAS headquarters.”
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