In his affidavit, Hadi said the suit, filed by Sabah-based lawyer Marcel Jude who is a Christian, is invalid as it was filed in the wrong court, was wrongly addressed and had exceeded the time limit for filing.
“Hadi also asked the court to exercise its discretion to award him costs of RM20,000.00 because the plaintiff had purposely entered the default judgment with full knowledge that the civil suit had been struck off,” Hamid Ismail, lawyer for the PAS chief, said in a statement.
He added that Marcel had abused the court process and had the judgment published in local media to humiliate Hadi.
“Based on the grounds, the default judgment was irregularly obtained and hence null and void. Therefore, it ought to be set aside ex debitoe justitiate [sic],” Hamid said further in the statement.
The latin phrase ex debito justitiae is legal term meaning “as of right” in which a litigant is awarded something as entitled just by asking for it, in contrast to an award given as a matter of a judicial discretion.
On August 12, the Sabah Sessions Court ruled in favour of Marcel who had sued Hadi for allegedly making negative remarks in an article titled “Christianity rejected by the educated, says Hadi” published on January 18 in the Free Malaysia Today news portal.
Marcel, 54, won the judgment in default when Hadi failed to show up in court. The Sessions Court also ruled that Hadi must pay the Christian lawyer damages for interfering with his constitutional right to freedom of religion under Article 11 of the Federal Constitution.
Hamid said that court had struck off the civil suit on July 28 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 August 19.
“By that time, the civil suit had become invalid. The default judgment was therefore irregularly entered, and accordingly, it is null and void,” Hamid said.
He also said that the alleged defamatory statements made by Hadi were made in Peninsular Malaysia and any action against Hadi ought to be filed in the Sessions Court there.
“Thus, the civil suit was filed in the wrong jurisdiction. The Sessions Court at Kota Kinabalu had no jurisdiction to hear the civil suit and to enter the default judgment. Therefore, the default judgment is null and void on this ground too.”
Lastly, Hamid said that there was doubt as to whether the summons was served to Hadi due to the receipt of posting which was “not proof of receipt”.
He said that Marcel also did not state Hadi’s full name in the postal receipt as well as the correct address to Hadi’s residence and not the PAS headquarters in Kuala Lumpur.
“Hadi was sued as an individual, not as the President of PAS. Hence, any legal document must be served to Hadi’s residential address at Marang, Terengganu. Hadi does not reside at PAS headquarters,” he said.
No court hearing date has been fixed for now.
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