The Criminal Trespass

Yesterday, I received a call from my syariah legal counsel's assistant informing me that the Mahkamah Rayuan Syariah Selangor Court Order is now ready for collection.

As mentioned in my previous post, on 17 January 2011 the Mahkamah Rayuan Syariah Selangor had ruled that my ex-wife's Ex-Parte Syariah High Court Order dated 6 October 2009 ("Ex-Parte Order") is not enforcable on grounds that

1. My ex-wife had failed to file in the "Kes Induk" for within 14 days; and
2. My ex-wife had failed to serve the order to me within 10 days as provided for in the Ex-Parte Order.

The requirement to file in the "Kes Induk" is clearly stated in Arahan Amalan 11 Tahun 2003.

An ex-parte hearing is when a party wishes to get a temporary court order on grounds of urgency. The other party (i.e. the respondent) will not be called to defend himself/herself. The question is, is this really fair that the courts would grant such an order without giving a chance or equitably listening to the views of the respondent? It is for this reason that the courts would only allow such applications on grounds of urgency and with condition that the applicant promises to pay damages in the event the applicant has not been truthful and/or failed to provide full and frank disclosure in his/her application.

An ex-parte court order cannot stand on its own. It must have an underlying "kes induk". The "kes induk" will then determine the permanent court order subject to a full trial. That is why Arahan Amalan 11 Tahun 2003 requires the applicant to file in the "kes induk" within 14 days if he/she has not already done so.

That's my two cents worth on ex-parte court applications.

The Ex-Parte Court Order obtained by my ex-wife amongst others was to

1. Freeze all my bank accounts and shares
2. Injunct me from dealing with and remaining in the matrimonial home
3. Injunct me from removing any items from the matrimonial home
4. Allow her to enter into the matrimonial home to take posession of her personal belongings

After obtaining the Ex-Parte Court Order, my ex-wife's lawyers expeditiously served the order to the banks on 7 and 8 October 2009. FULL STOP. Nothing else was done. They did not even attempt to file in the "kes induk".

It is therefore clear, that the purpose of obtaining the order was NOT on equitable grounds but merely to cripple me financially. That is completely unethical and clearly hitting below the belt!

Over the course of the next few months, everyone appeared to have been focussed on the "Hadhanah" case and have completely forgotten about the "Harta Sepencarian" case.

As my wife hasn't filed in the "Harta Sepencarian" case, which is the "kes induk" for the Ex-Parte Court Order, I proceed to file it on 24 August 2010. My ex-wife was subsequently notified on 2 September 2010.

On Saturday 4 September 2010, only TWO DAYS after being notified of the "kes induk" and 11 MONTHS after obtaining the Ex-Parte Court Order, my ex-wife turned up at the gates of my house with her husband, a lawyer, a locksmith and 6 packers. By the time I got to the front door, the locksmith and a packer had climbed over the fence and was attempting to dismantle the autogate.

It was clear that they wanted to gain entry into my house. Upon my objections, my ex-wife and her lawyer insisted that they are enforcing the Ex-Parte Court Order. I notified them that the Ex-Parte Court Order is no longer effective but the lawyer defiantly claimed that for as long as there is no court order to set aside the Ex-Parte Court Order, it remains effective.

I could not get hold of my lawyer as he was attending a course. His assistant told me not to fight and to step aside should my safety be at risk. Since it was me versus 10 of them (with one of them a dilutional desperado, one with acute psychosexual disorder and one emotionally disturbed lunatic), I had no choice but to step aside.

During the next few hours, the locksmith cut and replaced all the locks in my house. The packers packed and took away sofa sets, cupboards, bed, electrical items, curtains, flower pots, TV cabinet, pots and pans, wall clock, home furnishings etc. I was then asked to leave the house.

I objected many times during the course of the day that it was wrong for my ex-wife to sieze such items as they were matrimonial assets, especially I have just filed in the "Harta Sepencarian" case. It was also wrongful to evict and/or deny me entry into my own home pursuant to the National Land Code, 1965. My ex-wife completely disregarded my objections claiming that she has a "court order". I asked for proof that the items she seized were indeed "personal items" but again she brushed me aside claiming that she purportedly paid for them.

No "court order" can go against the law. This was a BIG mistake.

Naturally, after the event, I lodged a police report.

As I was clear that the Ex-Parte Court Order is no longer enforcable, the next day I came over with a grinder, cut the locks and regained entry into the house. The house was in a complete mess. Upon checking, I also found personal items missing.

As a layman, I knew that the Ex-Parte Court Order cannot be enforced. Why on earth didn't the lawyer see this? It is not about setting aside or cancelling the wretched court order. It is plain simple that it cannot be enforced due to my ex-wife's failure (well her lawyer's failure to be exact) to comply with certain provisions of the law.

Looking back, their motives are clear.

1. The lawyer, who apparently HAS NOT been granted a Sijil Amalan Guaman Syarie Negeri Selangor, therefore has no authority or qualification to act as a syariah lawyer in the State of Selangor, may have completely forgotten about the 14-day requirement to file in the "kes induk". She may have panicked after learning that I had done so and probably realised that the Ex-Parte Court Order's validity is in doubt. In order to avoid embarassment, she may have advised my ex-wife to wrongfully enforce the Ex-Parte Court Order TWO DAYS after being notified of the filing of the "kes induk", to enfoce the said order during the weekend so that I may not get proper legal advise and/or assistance and before I had the chance to obtain confirmation from the Syariah Courts that the said order can no longer be enforced. The lawyer may have also taken a gamble that after the event, I would not file in a reivew at the Mahkamah Rayuan Syariah Selangor and that the Royal Malaysian Police would not take action.
2. To inflict as much damage and distress to me 6 DAYS before Hari Raya Aidil Fitri.
3. To provoke me in hope that I would react physically and/or violently.

On 9 September 2010, my lawyers filed in a judicial review at the Mahkamah Rayuan Syariah Selangor. I also filed in a complaint at the Advocates & Solicitors Disciplinary Board over the actions of the lawyer. The rest is history.