Arief Affendi Bin Ab Wahab v Ahmad Fathiri Bin Ahmad Fadzlah (WA-22NCC-800-11/2024)

AHMAD FATHIRI BIN AHMAD FADZLAH (NRIC No.: 780519-14-5557)

AHMAD FADZLAN BIN AHMAD FADZLAH (NRIC No.: 791102-14-6101)

AHMAD FAIZAL BIN MOHAMED YUSUP (NRIC No.: 700502-01-6473)

MOHD ASHRAF BIN MUSLIM (NRIC No.: 810912-14-5953)

AHMAD FAKHARI BIN AHMAD FADZLAH (NRIC No.: 880201-56-5277)

MUHAMMAD ADNAN LUTFI BIN ABDULLAH (NRIC No.: 880302-08-7243)

NORWATI BINTI TAN (NRIC No.: 860111-06-5270)

AZILA BINTI ISMAIL (NRIC No.: 720314-05-5342)

9.

KOPERASI SAUJANA GEMILANG KUALA LUMPUR BERHAD (Registration No.: W-4-1188)

11.

12.

KERAJAAN MALAYSIA …DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 44 and Enclosure 46)

These are the 3rd and 8th Defendants’ applications to strike out the Writ and Statement of Claim.

This is a large-scale group action involving 181 Plaintiffs. They are all members of Koperasi Saujana Gemilang Kuala Lumpur Berhad (“KOSAGEM”). They allege a cooperative-based investment scam. The basis of the scam is predicated on fraud, misrepresentation, breach of fiduciary duty, breach of trust and regulatory failure.

The 3rd Defendant is pleaded as a well-known “sifu saham” or remisier who leveraged his public profile, seminars, and social media following to persuade Plaintiffs to invest. Plaintiffs say they relied heavily on his purported expertise and credibility to make their deposits with the 10th Defendant.

The action against the 4th Defendant is on the basis that she is a board member of the 10th Defendant.

The Plaintiffs allege that the funds collected from the Plaintiffs were not applied as represented. There was a breach of trust, misappropriation, and mismanagement on the part of the board members of the 10th Defendant. The promised business ventures to be undertaken by the 10th Defendant were either exaggerated, non-performing, or never genuinely implemented.

When Plaintiffs sought to withdraw their deposits, their requests were ignored or delayed indefinitely. As a result, Plaintiffs suffered total or substantial losses of their investments.

They now seek refund of all monies paid, damages for fraud, misrepresentation, breach of trust; declarations of wrongdoing; and a finding of liability against regulators for breach of statutory duties.

The 3rd Defendant submits that the Plaintiffs’ pleading is prolix, scandalous, and legally defective, and discloses no reasonable cause of action against him.

The 3rd Defendant further contends that the dispute is, in substance, about non-payment of dividends. The claim is not one premised on fraud but dissatisfaction with investment outcomes. Such dissatisfaction does not convert the claim into a claim premised on fraud.

The Statement of Claim also relies on rolled-up allegations against the 1st to the 10th Defendants without any specific pleading of what representation was made by the 3rd Defendant, when made, and to whom it was allegedly made. The 3rd Defendant submits that fraud must be pleaded with particularity, which is absent in the pleaded case. Conspicuously missing are also facts pleading knowledge, intention, and dishonesty as against the 3rd Defendant. Factual plea on reliance and causation are also said to be entirely absent, particularly given the presence of 181 Plaintiffs.

The 3rd Defendant further contends that he had no executive or decision-making power in KOSAGEM as he was merely engaged as an investment consultant.

On this basis, the 3rd Defendant submits that the action against him is frivolous and vexatious, an abuse of process resulting in it being a plain and obvious case for striking out under Order 18 Rule 19 of the Rules of Court 2012.

The 8th Defendant submits that the Plaintiffs’ claim against her is wholly unsustainable, as it is wholly founded on assumptions and some guilt attributed through mere association with KOSAGEM.

The 8th Defendant contends that she was not a duly appointed board member of KOSAGEM, having received no formal appointment letter; and she exercised no management or decision-making power in KOSAGEM.

As with the 3rd Defendant, it is submitted that the Statement of Claim does not attribute any representation, act, or omission to her personally. Allegations of fraud and conspiracy are bald and without factual basis. Further, the claim is driven by dissatisfaction over failure to obtain the promised dividends.

In sum total, the 8th Defendant contends that the pleadings as against her are scandalous, embarrassing, and an abuse of process. Accordingly, the 8th Defendant submits that the action against her should be struck out in limine.

Both the 3rd and 8th Defendants firmly assert that the Plaintiffs should utilise all the existing remedy provided by the Co-operative Societies Act 1993 instead of filing this action in Court. In that sense, they argue that the present action by the Plaintiffs are premature as they have not availed the remedy afforded by the Co-operative Societies Act 1993.

As against the 3rd Defendant, the Plaintiffs rely on specific Facebook postings by him in 2018 and 2020, which are pleaded and exhibited, as constituting false and misleading representations. The Plaintiffs argue that allegations of fraud are sufficiently pleaded at this stage and that issues of knowledge, intention, reliance, and credibility require ventilation in a full trial.

The Plaintiffs further contend that the 3rd Defendant’s alleged resignation from KOSAGEM is an afterthought, unsupported by contemporaneous documentary evidence, and cannot be resolved at an interlocutory stage.

As against the 8th Defendant, the Plaintiffs allege multiple statutory breaches by virtue of her position as a board member of KOSAGEM, under the Co-operative Societies Act 1993, including failures to convene Annual General Meetings, table financial statements, submit audited accounts and properly safeguard members’ funds.

It is further contended that the 8th Defendant’s denial of her status as a board member of KOSAGEM is inconsistent with her own earlier pleadings. Hence, any purported resignation letter is disputed and must be subject to viva voce examination.

The Plaintiffs also maintain that liability is not based on office alone, but on active participation as well as knowledge. The Plaintiffs contend that conspiracy and breach of trust are properly pleaded.

Accordingly, the Plaintiffs submit that the claims against the Defendants raise serious questions to be tried and are unsuitable for striking out.

The principles governing striking out under Order 18 Rule 19 of the Rules of Court 2012 are settled. The Court will only strike out a pleading in a plain and obvious case where the claim is obviously unsustainable, without embarking on a minute examination of facts or evidence (see: Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corp Bhd [1993] 4 CLJ 7 (FC)).

However, the Court is not, in toto, precluded from examining the facts. Where pleaded facts are general, vague and when challenged, are unsupported with contemporaneous documentary evidence, the Court must act accordingly to ensure that the process of the Court is not abused.

Given the competing contention of parties, it is opportune to remind myself that a “cause of action” requires a pleaded factual matrix showing that the Plaintiff’s legal right has been infringed by the Defendant’s act. The infringement must be brought home to the Defendant concerned.

In Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12, Salleh Abas LP defined the term ‘cause of action’ as “… a statement of facts alleging that a plaintiff’s right, either at law or by statute, has, in some way or another, been adversely affected or prejudiced by the act of a defendant in an action.”

The statement of claim in the present case is crafted and drafted in a manner onerous to Defendants’ counsel and the Court alike. It holds 194 paragraphs (excluding generously peppered sub-paragraphs) contained in 152 pages. The reliefs sought range from para (a) to para (ggg). Certain paragraphs are sufficiently lengthy to fill a foolscap paper and a half.

There are various allegations made against the defendants, all lumped together in a general manner. Facts and law have been pleaded in alternate succession. The reader is made to meander through a veritable thicket of evidential forest. Despair turns to grief when there is no end in sight.

Pleadings are meant to be concise. They must contain only material facts to sustain the cause of action. There is no room for arguments, reasons or rhetoric. Where there is more than one defendant, the facts must identify with exact precision the facts to sustain the pleaded cause of action as against that defendant. A pleader must have recourse to and be guided by Order 18 of the Rules of Court 2012 to ensure that the pleadings comply with those basic requirements. No good ever comes from jumbling up every conceivable fact, as and when it crosses the mind of the drafter, and throwing them at the Court with the notion that the Court will sift through and make a case for the party. As has been said before, the Court is no filter of debris.

In Hua Realty Bhd v See Hua News Holding Sdn Bhd & Ors [2007] 7 MLJ 525, the Court stated as follows: “The petition in this case is drafted in a manner that runs to 72 pages. This petition is, as if an entire set of complaints, whether or not they fall within the purview of s 181, have all been hurled into the court with the duty foisted on the court to pick and choose to allow the petition. The court is not a filter of debris (see Watson v. Rodell 3 Ch D 380). Where a petition is nothing more than a jangled mass of complaints all lumped together over which the court is unable to make any finding at all, of either oppression or undue prejudice, because the petition is nothing more than an exercise in prolixity, then it must fall. It has long been held that where the cause papers are so framed as be too prolix, where they disclose immaterial facts, and set out at great length documents which could not be material to the issues at hand, such as to as embarrass the opposite party (see Cashin v. Cradock 3 Ch D 376), such pleadings are liable to be, and have, on occasions, been struck out (see Davy v. Garret

7 Ch D 473).”

In Yong Lai Ling Lwn Ng Seow Poe Dan Lain-Lain [2014] 1 LNS 2010, the Court found that the Statement of Claim runs into 27 pages and contains 84 paragraphs. The Court held: “Setelah meneliti keseluruhan Pernyataan Tuntutan Plaintif mengandungi 27 muka surat dan 84 perenggan dan membacanya, saya dapati bukan sahaja ianya terlalu panjang berjela-jela, memenatkan apabila membaca, ianya penuh dengan pliding keterangan dan/atau cerita-cerita di dalam pliding tersebut seolah-olah suatu aduan panjang lebar yang dikemukakan di Mahkamah.Agak sukar untuk menentukan apakah kausa tindakan sebenar yang dibawa oleh Plaintif terhadap Defendan-Defendan dan pliding Plaintif yang panjang lebar tersebut telah memalukan serta memprejudiskan Defendan Pertama dan Defendan Kedua.”

Finally, in the case of Tarlia Enterprises Sdn Bhd v Ng Giak Pin [2020] 1 LNS 2219, Wong Siong Tung, JC (as he then was) explained extensively on the principle of prolixity. The Learned JC held: “I should say it is not only embarrassing to the party but also oppressive to the Court in every case for having to sift through such prolix and rambling pleadings comprising of many pages of repetitive matters, relevant or irrelevant with argument, reasoning, contentions, and speculations among which the real material facts are concealed or rendered obscured so as to identify the real issues of case for determination.”

In my view, the time has come for Courts to adopt a strict approach to pleadings that are offensive to the requirements of the Rules of Court. Courts are inundated with cases requiring the most careful and closest attention to detail. Parties who seek the aid of Court to correct an injustice must first aid the Court in carefully drafting their pleadings to ensure that the cause of action is identified and facts necessary to support the cause of action are properly pleaded. There is no room for prolixity.

I find the pleadings in this case to be prolix. It is a classic case of being neither here nor there on the causes of action allegedly pleaded. It is next to impossible for the 3rd and 8th Defendants to defend themselves in the face of the mass jangled of complaints. On the ground of prolixity alone, the pleadings against the 3rd and 4th Defendants ought to be struck out.

In any event, and for completeness, I will also address the other grounds raised by the Defendants. As Against The 3rd Defendant

It is trite that allegations of fraud must be specifically pleaded with particulars, including the role and acts of the individual defendant. The reason for this is rudimentary logic. It enables the Defendant concerned to meet the claim against him and to properly craft his defence based on the pleaded claim.

The Statement of Claim in the present case pleads fraud globally against the first ten Defendants without so much as identifying the specific representations made by the 3rd Defendant—when and to whom they were made, and why they were false at the material time.

Such pleading offends the settled requirement that fraud must be pleaded with precision. Failing such precision, the pleading is liable to be found defective. I need only refer to two cases to support this proposition.

The first is SCEC Group (M) Sdn Bhd v Wong Siew Woon & Ors [2025] MLJU 21. The High Court held as follows: “Secondly, the tort of fraud has also not been sufficiently pleaded against D5 to D7. It is trite that fraud must be specifically pleaded, stating the particulars of fraud relied upon (see Eramara Jaya Sdn Bhd & Ors v Ong Cheng Heang @ Ong Cheng Hean & Ors [2018] MLJU 1744 (HC)). The Plaintiff must plead the role and specific acts of the purported fraud said to be committed by each of D5 to D7. Aside from a bald allegation that D6 and D7 as directors of D4 “have jointly and/or separately allowed and/or caused the Second JM Application to be filed without basis”, no other particulars have been furnished. It is pertinent to note that D5 to D7 are separate legal entities from D4. The alleged fraudulent filing by D4 cannot automatically be attributed to its holding company and directors without specific acts of fraud being pleaded. As against D6, the allegation that he signed a letter of undertaking during his directorship of Surrealist, without more, does not amount to fraud. The Plaintiff has not shown how this letter was false or fraudulent. Thirdly, and in any event, I agree with the submission of D5 to D7 that the Plaintiff has not adduced sufficient prima facie evidence in support of its claim. Where fraud is alleged, it is incumbent on the Plaintiff to put forward prima facie evidence at the striking out stage to demonstrate a sustainable claim. This was made clear by the High Court in Suppuletchimi Karpaya v Palmco Bina Sdn Bhd [1994] 2 MLJ 368 which held that on a striking out application, the Plaintiff must put all relevant material facts and evidence before the court and show that prima facie essential evidence in support of the claim has been exhibited in the affidavits. Bare allegations would not suffice (see Soo Teck Lee & Ors v Lim Geok Kim & Ors [2022] 9 MLJ 41 (HC)). Here, the Plaintiff has not produced any prima facie evidence to show that D5 to D7, as opposed to D4, were complicit in any fraud or conspiracy. The letter of undertaking exhibited by the Plaintiff does not by itself evince any wrongdoing on the part of D6.”

In Eramara Jaya Sdn Bhd & Ors v Ong Cheng Heang @ Ong Cheng Hean & Ors [2018] MLJU 1744, Mohd Nazlan J (now FCJ), succinctly held the following: “It is an important civil procedure rule that when pleading fraud, a plaintiff must plead by stating with particularity the circumstances constituting fraud. There must be enough facts to state a claim to relief that is plausible on the face of the statement of claim in order to prevent dismissal of a complaint. The leading text of Bullen & Leake & Jacob’s Precedents of Pleading (13thEdition at page 428) states thus:- “… Any charge of fraud or misrepresentation must be pleaded with the utmost particularity. The statement of claim must show the nature and extent of each alleged misrepresentation and contain particulars showing by whom and to whom it was made, and whether orally or in writing, and if in writing, identifying the relevant documents …”. It cannot be emphasised enough that whenever an allegation like fraud is raised, the facts proffered in support of the complaint ought to be specified with the requisite particularity, because general statements are simply not sufficient to ensure that litigation between the parties is conducted firmly, openly and without surprises (see Astrolavnis Compania Naviera SA v

In the present case, I observe the use of collective allegations against multiple defendants without differentiation. I find that this renders the pleading embarrassing and prejudicial within the meaning of Order 18 Rule 19(1)(b) and (c) of the Rules of Court

The Statement of Claim does not plead that the 3rd Defendant knew the alleged representations were false or was reckless as to their truth. In the absence of pleaded knowledge or dishonesty, a claim founded on fraud is incomplete in law and discloses no reasonable cause of action.

There are 181 Plaintiffs, yet the Statement of Claim does not plead which Plaintiff relied on which representation of the 3rd Defendant and how such reliance caused the alleged loss to the Plaintiffs. Reliance pleaded at large and in general terms as in the present case is insufficient to sustain a cause of action founded on misrepresentation.

Even on the Plaintiffs’ own pleadings, the 3rd Defendant is not shown to have exercised executive or decision-making power within the cooperative. This is over and above the 3rd Defendant’s assertions, unrebutted as they were, that he was not involved in the day to day running of KOSAGEM. Even if he was appointed by KOSAGEM, mere appointment or association, without more, does not automatically attract liability (see: Sime Darby Bhd & Ors v Dato’ Seri Ahmad Zubair @ Ahmad Zubir [2012] 9 MLJ 464).

The Plaintiffs also rely on Facebook posting attributed to the 3rd Defendant. Taking the Plaintiffs’ reliance on the Facebook postings at its highest, the postings are not pleaded with the precision required or expected in a fraud claim. There is no pleading as to the exact words relied upon, the date of publication, the audience, nor how each Plaintiff relied upon them. Exhibiting documents does not cure defective pleadings. Evidence cannot substitute pleadings. As Against The 8th Defendant

My findings on the infirmity of the pleadings apply with equal force where the 8th Defendant is concerned. Despite my best efforts trawling through the Statement of Claim, I fail to find sufficient pleas of representation, act or omission, attributable to the 8th Defendant.

As against the 8th Defendant, the pleading contains only bald and conclusory allegations of fraud without particulars. This is fatal to a claim premised upon fraud. One must bear in mind that a cooperative society, like a company, is a separate legal entity. Alleged wrongdoing by the cooperative society cannot automatically be attributed to an individual absent pleaded acts as against that defendant (see: SCEC Group (M) Sdn Bhd v Wong Siew Woon & Ors [2025] MLJU 21).

The Plaintiffs also sought to rely on the 8th Defendant’s alleged position as Secretary of the Internal Audit Committee. However, even assuming such appointment, there is no pleading of any specific breach committed by her personally. Statutory functions do not translate into automatic personal liability. The Statement of Claim remains silent on what she did or failed to do.

In light of my findings, I find it unnecessary to deal with the issue that the claim is premature and ought to be dealt under Section 82 of the Co-operative Societies Act 1993.

This is therefore a plain and obvious case warranting the exercise of the Court’s powers under Order 18 Rule 19 of the Rules of Court

For the reasons given, the applications filed by the 3rd and 8th Defendants were allowed.

The claims against the 3rd and 8th Defendants are struck out with costs. Dated the 9th day of January 2026 -sgd- ……………………………………………………………………… MUHAMMAD ADAM @ EDWARD BIN ABDULLAH Judicial Commissioner High Court (Commercial Division NCC 4) High Court of Kuala Lumpur In the Federal Territory, Malaysia Counsel for the Plaintiffs : Mohaji bin Selamat together with Filzah Huda binti Rosli Messrs. Mohaji, Hazury & Ismail Counsel for the Defendants : Nurul Qurratul Aini binti Md Roslan together with Abd Shukor bin Tokachil for the 3rd and 8th Defendants; mention on behalf of the 6th Defendant Messrs. Asikin Ain Firah & Co. Kimberly Ye Wanchuin for the 13th Defendant (Federal Counsel)

Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corp

Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 3. Hua Realty Bhd v See Hua News Holding Sdn Bhd & Ors [2007] 7 MLJ 525 4. Yong Lai Ling Lwn Ng Seow Poe Dan Lain-Lain [2014] 1 LNS 2010 5. Tarlia Enterprises Sdn Bhd v Ng Giak Pin [2020] 1 LNS 2219 6. SCEC Group (M) Sdn Bhd v Wong Siew Woon & Ors [2025] MLJU 21 7. Eramara Jaya Sdn Bhd & Ors v Ong Cheng Heang @ Ong Cheng Hean & Ors [2018] MLJU 1744 8. Sime Darby Bhd & Ors v Dato’ Seri Ahmad Zubair @ Ahmad Zubir [2012] 9 MLJ 464

Order 18; Order 18 Rule 19; Order 18 Rule 19(1)(b) and (c) of the Rules of Court 2012 2.