Maheswari a/p Eliathamby v Koperasi Serbaguna Kebangsaan Bhd & 5 lagi (C-02-2021-11/2014)

SUMITRA NAVANEETHA NATHAN ... APPELLANTS

PENDAFTAR HAKMILIK NEGERI PAHANG ... RESPONDENTS [In the matter of High Court of Malaya at Temerloh In the State of Pahang Darul Makmur Civil Suit No. 22-44-2008 Between

Maheswari A/P Eliathamby

Sumitra Navaneetha Nathan ... Appellant And

Koperasi Serbaguna Kebangsaan Bhd

Kaliswaran A/L Sinniah

Ajantha Thinakaran

Wakil-Wakil Diri Kepada Ben David Eric-Simati

HSBC Bank Malaysia Berhad

Pendaftar Hakmilik Negeri Pahang ... Respondents] CORAM: ABANG ISKANDAR BIN ABANG HASHIM, JCA UMI KALTHUM BINTI ABDUL MAJID, JCA ASMABI BINTI MOHAMAD, JCA JUDGEMENT OF THE COURT Brief facts of the case [1] Maheswari A/P Eliathamby ("the $ 1^{\mathrm{st}} $ Plaintiff"/ "SP1") and Sumitra Navaneetha Nathan ("the $ 2^{\mathrm{nd}} $ Plaintiff"/ "SP2") were registered owners of a piece of land at GRN 6704 Lot 1478, Mukim of Tras, Raub, Pahang ("the land"). They shared the land in equal portions. [2] The land was bought at the price of RM420,000.00 with a loan secured from HSBC Bank (" $ 5^{\mathrm{th}} $ Defendant"). The land was also charged to the 5th Defendant as security. The loan was fully repaid on 25 January 2002. [3] However, even after the full payment of the loan, it was alleged by the Plaintiffs that neither the 1 $ ^{st} $ Plaintiff nor the 2 $ ^{nd} $ Plaintiff had collected the original Title Deed from the 5 $ ^{th} $ Defendant. Neither had they instructed anybody to take the same from the 5 $ ^{th} $ Defendant. [4] Sometime in June 2002, the $ 1^{\mathrm{st}} $ Plaintiff faced financial difficulties. The situation led her to ask one Ben David Eric ("the $ 4^{\mathrm{th}} $ Defendant/ deceased") for financial assistance. [5] In July 2002, the deceased told the $ 1^{\mathrm{st}} $ Plaintiff that he was negotiating with somebody for the financial assistance. However, according to the deceased, the $ 1^{\mathrm{st}} $ Plaintiff needed to provide RM 20, 000.00 to him for banking charges to charge the land, to which the $ 1^{\mathrm{st}} $ Plaintiff complied. [6] Few weeks after that, the deceased, in the presence of the $ 1^{\mathrm{st}} $ Plaintiff met the $ 2^{\mathrm{nd}} $ Plaintiff at her house, together with Ajantha Thinakaran ("the $ 3^{\mathrm{rd}} $ Defendant"). The $ 3^{\mathrm{rd}} $ Defendant introduced herself as an advocate and solicitor, who was representing Koperasi Serbaguna Kebangsaan Bhd ("the 1 $ ^{st} $ Defendant"). The 1 $ ^{st} $ Defendant asked the 2 $ ^{nd} $ Plaintiff to sign several documents purported to be related to the charge as security for the financial assistance. [7] Sometime in 2004, the $ ^{1st} $ Plaintiff learnt that the land had been transferred to the $ ^{1st} $ Defendant vide a Sale and Purchase Agreement dated 8 December 2003 ("the SPA") (P49). The SPA purported to be entered between the $ ^{1st} $ and $ ^{2nd} $ Plaintiffs on one side and the $ ^{1st} $ Defendant on the other side. The SPA was prepared by the $ ^{3rd} $ Defendant. Upon search conducted at Pejabat Tanah dan Galian Pahang, it was revealed that based on Form 14A, the Plaintiffs were paid RM 600,000.00 as consideration and the documents were signed by them before one Kalisewaran a/l Sinniah ("the $ ^{2nd} $ Defendant"). [8] The Plaintiffs contended that the transfer was made by fraud on the part of the $ 1^{\mathrm{st}} $ Defendant, and conspiracy to commit fraud by the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants as they never intended to sell the land. The $ 5^{\mathrm{th}} $ Defendant was alleged to have been negligent in releasing the Title Deed of the land without their instruction. [9] In this suit, the Plaintiffs had claimed against the $ 1^{\mathrm{st}} $ Defendant for the following: a. A declaration that the Plaintiffs have no intention to transfer the land to the $ 1^{\mathrm{st}} $ Defendant at all material times; b. A declaration that the transfer of land to the $ 1^{\mathrm{st}} $ Defendant is null and void; c. A declaration that the SPA is null and void; d. A declaration the Memorandum of Transfer (Form 14A) used in the transfer is null and void; e. An order that the 1 $ ^{st} $ Defendant to transfer the land to the Plaintiffs; f. An injunction to restrain the $ 1^{\mathrm{st}} $ Defendant or his agent to deal with the land until the disposal of this case; g. General damages; h. Interest; i. Cost of solicitor-client basis; and j. Any relief as the court deems fit. [10] As against the $ 2^{\mathrm{nd}} $ $ 3^{\mathrm{rd}} $ $ 4^{\mathrm{th}} $ and $ 5^{\mathrm{th}} $ Defendants, the Plaintiffs had claimed for the following: a. General damages; b. Costs on solicitor-client basis; and c. Any relief as the court thinks fit. [11] Against the $ 6^{\mathrm{th}} $ Defendant, the Plaintiffs had claimed for the followings: a. An order that the Defendant to cancel the Endorsement of Transfer no. 2202/2004 and to register the Plaintiffs as the registered owner of the land; and b. Any relief as the court thinks fit. Case for Defendants/ Defence [12] In the Statement of Defence, the $ 1^{\mathrm{st}} $ Defendant contended that it had paid the Plaintiffs the sums of RM 165,000.00 as part of the purchase price of the land, and not a loan. The $ 1^{\mathrm{st}} $ Defendant also claimed that the full purchase price of RM 600,000.00 had been paid to the Plaintiffs pursuant to the SPA. The police investigations had concluded with the recommendation of 'No further action'. [13] The $ 2^{nd} $ and $ 3^{rd} $ Defendants simply denied the Plaintiffs' allegations in their Statement of Defence, except the fact that they used to discuss with the Plaintiff's about the sale and purchase of the land and admission that the $ 1^{st} $ Defendant had indeed made part payment of the purchase of land to the Plaintiffs. The $ 2^{nd} $ and $ 3^{rd} $ Defendants also admitted that they prepared the SPA upon the instruction of the Plaintiffs and the $ 1^{st} $ Defendant. [14] The $ 5^{\mathrm{th}} $ Defendant claimed the original Title Deed and the copy of it had been returned to the Plaintiffs upon their completion of repayment of the loan. The documents were collected by the Plaintiffs themselves at the $ 5^{\mathrm{th}} $ Defendant's office on 30 January 2002. The $ 5^{\mathrm{th}} $ Defendant also raised the time bar issue. [15] On 24 October 2014, the High Court dismissed the Plaintiff's claim with costs of RM 30,000.00 be paid to the $ ^{1^{\mathrm{st}}}$ and $ ^{5^{\mathrm{th}}}$ Defendants each, and RM 20,000.00 to the $ ^{2^{\mathrm{nd}}}$ and $ ^{3^{\mathrm{rd}}}$ Defendants collectively. [16] Dissatisfied with the decision, the Plaintiffs appealed to the Court of Appeal. The Appeal [17] After hearing both parties and deliberating the submissions, we, on 8 December 2016, unanimously found that there was no merit in the appeal, thus we had dismissed the same with costs of RM 20,000.00 to each set of Defendants, being the Respondents in this appeal subject to the payment of allocatur. These are our reasons of having so decided. For the purpose of this Grounds of Judgment, parties will be referred to as they were in the High Court. Our findings [18] Before us, the Plaintiffs raised several issues for our deliberation vide the Memorandum of Appeal and written submissions and from the written grounds of decision of the learned trial Judge, which we would distil them to be as follows: a. Whether the Plaintiffs sold the land to the $ 1^{\mathrm{st}} $ Defendant? b. Whether the $ 1^{\mathrm{st}} $ $ 2^{\mathrm{nd}} $ $ 3^{\mathrm{rd}} $ and $ 5^{\mathrm{th}} $ Defendants had conspired with the $ 4^{\mathrm{th}} $ Defendant to defraud the Plaintiffs in the sale and purchase of the land? c. Whether the Plaintiffs suffered any damage? [19] However, it must be noted as a matter of law that the standard of proof applicable in civil cases had been clarified by our apex Court in the case of Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584. That decision was delivered on 10 August 2015. That case has put right, once and for all, what is the correct and proper standard of proof that shall be applicable in all civil cases in Malaysia. In the Sinnaiyah & Sons Sdn Bhd [supra] our apex Court had occasion to say as follows: "The correct principle to apply is...where it was stipulated that at law, there are only two standard of proof, namely beyond reasonable doubt for criminal cases and on the balance of probabilities for civil cases. As such, even if fraud is the subject in a civil claim, the standard of proof is on the balance of probabilities. There is no third standard. Therefore, it is up to the presiding judge, after hearing and considering the evidence adduced as being done in any other civil claim, to find whether the standard of proof was attained. The criminal aspect of the allegation of fraud and the standard of proof required is irrelevant in the deliberation." [20] As such, the correct standard of proof to employ in this case should have been the standard of proof on the balance of probabilities. But as an appellate Court, we are entitled to subject the evidence adduced before the trial Court and decide whether on that lower threshold standard of proof, the Plaintiffs ought to have been found to have established their case against the Defendants and were therefore entitled to have judgement entered in their favour. [21] It is opportune to state that those identified issues had been contentious issues and after hearing and appreciating the evidence adduced before her, both oral as well as documentary, the learned trial Judge had made the various findings of facts in the course of coming to the conclusions on those issues and thence on her ultimate decision on the overall claim by the Plaintiffs against the various Defendants. It is trite law that, the trial Judge always has the distinct advantage of having seen and observed the demeanour of witnesses that appear before him or her. This advantage is also held by the trial Judge even over the appellate Court because it is the trial Court that has the in situ audiovisual advantage. Premised on that realisation, prudence has advised that great deference has to be accorded to the findings of facts made by the trial Judge unless that advantage is lost through gross misfinding of facts by the trial Judge, against the weight of evidence. If that happens, the appellate Court is at liberty, indeed it is duty-bound, to intervene and come to its own findings on a proper appreciation of the evidence. [22] On the standard of proof that ought to be applicable, on the authority of the apex Court case of Dato' Prem Krishna Sahgal v. Muniandy A/L Nadasan & Ors [2017] 10 CLJ 385 ("Prem K. Sahgal case"), an appeal Court should be employing the correct standard of proof applicable and then subject the evidence to that correct standard of proof accordingly. In this case, the correct standard of proof ought to be one on the balance of probabilities. In the Prem K. Sahgal case [supra] the apex Court had the occasion to say: [53] We agree with the Court of Appeal that the decision of this court in Sinnaiyah was applicable to this case as the appeal of this case was still pending in the Court of Appeal when this court delivered its judgment in Sinnaiyah case. In fact, this issue has been decided by this court in Letchumanan Chettiar Alagappan (As Executer to SL Alameloo Achi (Deceased) & Anor v Secure Plantation Sdn Bhd [2017] 5 CLJ 418 at pp. 480 and 481: "[88] Prospective overruling had been applied in Malaysia. But was it applied in Sinnaiyah, such that it had no retrospective effect, even to the instant appeal from a decision decided by the trial court before the change in the law? "It is a fundamental principle of adjudicative jurisprudence that all judgments of a court are retrospective in effect" (Abillah Labo Khan v. PP [2002] 3 CLJ 521; [2002] 3 MLJ 298 per Gopal Sri Ram JCA, as he then was, delivering the judgment of the court). "The law as so stated applies not only to that case but also to all cases subsequently coming before the courts for decision, even though the events in question in such cases occurred before the...decision was overruled" (Kleinwort Benson Ltd). "Because of the doctrine of precedent, the same would be true of everyone else whose obligations would be decided according to the law as enunciated ... even though the relevant events occurred before that decision was given" (Lord Nicholl's fourth "feature" in the judicial system, see also PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457; [2005] 6 MLJ 393, where it was held by the court, as per Gopal Sri Ram JCA, as he then was, delivering the judgment of the court, that the Court of Appeal was bound to follow Muhammad bin Hassan, notwithstanding that the conviction was handed down before the change in the law). The law as so stated in a superior judgment would apply to cases which have not yet gone to trial or are still in progress and to appeals that have been brought timeously but have not yet been concluded (Cadder v. Her Majesty's Advocate per Lord Hope) and to matters or cases not yet finally determined, but the retrospective effect of a judicial decision is excluded from cases already finally determined (Cadder v. Her Majesty's Advocate per Lord Rodger). That is the common law position. There was no departure in Sinnaiyah from the common law position when the court said "we should make it clear that this judgment only applies to this appeal and to future cases and should not be utilised to set aside or review past decisions involving fraud in civil claims". The court merely underscored the retrospective and prospective effect of its decision, to apply to that appeal and to future cases, to cases as yet not filed and trials or appeals which have yet to be finally determined, but not to past cases which have reached a terminal end. The ruling in Sinnaiyah was not in the prospective-only form. Sinnaiyah applies to all cases that have not been finally determined, including all pending appeals, except that in the instant appeal, it does not matter." [Italics in bold by us for emphasis] [23] On account of that ruling by the apex Court in the Prem K. Sahgal case [supra], on the overall appreciation of the evidence led by the Plaintiffs, we were of the respectful view that even subjecting the same evidence as adduced, on the lower standard of proof of on the balance of probabilities, the Plaintiffs had failed to establish their claims against the relevant Defendants. We agreed with the learned trial Judge's findings of facts on the material issues, especially with regards to the signature of the 1 $ ^{st} $ Plaintiff on the sale and purchase agreement in respect of the said land and the custody of the document of title of the said land at the material time. These are key issues and indeed before us, all learned counsel had dwelled on these issues at some length. [24] On the signature issue, the $ 1^{\mathrm{st}} $ Plaintiff denied that she had signed on the sale and purchase agreement for the sale of the land to the $ 1^{\mathrm{st}} $ Defendant. This denial by the $ 1^{\mathrm{st}} $ Plaintiff had effectively amounted to a plea of 'non est factum' or simply put, 'this is not my signature'. As the Plaintiff had alleged that the signature was not hers, the onus or burden fell on her to show that on the balance of probabilities that she was not the source of the impugned signature. As to what had transpired during the trial, the $ 1^{\mathrm{st}} $ Plaintiff was asked to make samples of her signature in order for the Court to form an opinion. However, even with that, the learned trial Judge was not able to form her opinion as to the genuineness or otherwise of the $ 1^{\mathrm{st}} $ Plaintiff's purported signature. On top of that, the $ 1^{\mathrm{st}} $ Plaintiff herself was not helpful when her evidence was put under scrutiny. [25] Still pertaining to this issue, with respect, we could not agree with the learned counsel for the $ 1^{\mathrm{st}} $ Plaintiff when he submitted that it would not do much good for the 1st Plaintiff to lead any expert evidence on the signature issue as an expert's evidence would have been a mere opinion of such witness. We wish to reiterate that not just any witness can express his opinion in a court of law. Witnesses of facts testify only on what he has observed with his senses and relate the evidence to the court during trial. It is left to the trial judge to then make the proper inferences from the evidence adduced in making the findings of facts. This is because it is trite that only opinions of experts are admissible in any court of law. Section 45 of the Evidence Act 1950 is clear on that. In fact, that same section mentions specifically 'the genuineness of handwriting' as being one of the instances where opinion of an expert or experts may become relevant. The law was emphatically stated by Lawton LJ in the English case of R. V. Turner [1975] 1 All ER 70 at p.74 where he said: "The foundation of these rules was laid by Lord Mansfield CJ in Folkes v Chadd [1782] 3 Doug KB 157 at 159 and was well laid: 'The opinion of scientific men upon proven facts', he said, 'may be given by men of science within their own science.' An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help then the opinion of an expert is unnecessary." [26] This Turner's case [supra] was followed in the Singapore case of Chou Kooi Peng & Anor v. PP [1998] 3 SLR 593. See also the case of Syed Abu Bakar bin Ahmad v PP [1984] 2 MLJ 19 (FC). In essence what this means is that expert evidence is only admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of the presiding judge. Opinions of nonexperts are not admissible. In other words, witnesses of facts simpliciter, keep their opinions, whatever they may be, to themselves. [27] As to how much weight is to be assigned to an expert's opinion would depend on the particular circumstances of each case, much would depend on the credibility of the expert witness concerned. But, having said that, it was not correct for the learned counsel for the $ 1^{\mathrm{st}} $ Plaintiff to have such a dim view of expert opinion and to then dismiss such evidence as 'mere opinion', as though it is not worthy of belief at all. Experts come to court because their evidence can assist the court in a wide spectrum of knowledge pertaining to issues concerned with the sciences and the arts, with which the court is not otherwise well versed with. Although the expert witness's evidence does not necessarily bind the trial judge, his opinion, if credible, is worthy of much deference by the court and could assist the court in coming to a crucial finding of fact in a case. [28] In the circumstances of this case, in the absence of any expert opinion as to its origin, we were in agreement with the learned trial Judge on her findings pertaining to the signature of the $ 1^{\mathrm{st}} $ Plaintiff. The learned trial Judge had the distinct advantage of having observed the demeanour of the $ 1^{\mathrm{st}} $ Plaintiff in her Court. She had found the $ 1^{\mathrm{st}} $ Plaintiff [SP1] to be a meticulous person and that she would not have done anything unless she was sure about it. In short, she would act deliberately as opposed to acting in haste and without due care. In the context of this case, the fact that the learned trial Judge was herself unable to conclude on the sample signature by the $ 1^{\mathrm{st}} $ Plaintiff would necessarily mean that the opinion of an expert on signature was required and that onus was with the Plaintiffs to discharge as it was their pleaded case, as per paragraph 199(h) of the Peryataan Tuntutan Terpinda that the $ 1^{\mathrm{st}} $ Plaintiff's signature had been forged. But, as it came to pass, that onus was not discharged by the Plaintiffs. [29] On the issue of the custody of the document of land title of the said land, it was the $ ^{1st} $ Plaintiff's case that the said document was at all times with the $ ^{5th} $ Defendant HSBC Bank even after she had paid off the loan for which the said land title was charged with the HSBC Bank as security. It was the $ ^{1st} $ Plaintiff's case that the HSBC Bank was negligent when it had released the said land title without her prior authorisation. This had been the basis for the Plaintiffs' claim against the HSBC Bank as the 5th Defendant in this action. [30] The law on proof of negligence is trite. The Plaintiffs will need to establish that the $ 5^{\mathrm{th}} $ Defendant owed them a duty of care and that the Defendant had breached that duty, and as a result of which the Plaintiffs had suffered damages. The onus is on the Plaintiffs to prove their case against the $ 5^{\mathrm{th}} $ Defendant, unless where res ipsa loquitor applies, in which case, the evidentiary burden shifts to the $ 5^{\mathrm{th}} $ Defendant to disprove that particular factual circumstance that is peculiarly within his exclusive knowledge. [See generally the case of Ma Clyde v Wong Ah Mei & Anor [1970] 2 MLJ 183.] [31] Evidence was led on this issue by both sides. In her grounds of decision, the learned trial Judge made a finding of fact that the land title was indeed in the possession of the HSBC at some point in time, but as at 30 January 2002 that land title was no longer in the HSBC Bank's custody. In fact, on that day, the $ ^{1st} $ Plaintiff had come to the HSBC Bank herself and she had collected the said land title from the said Bank. That was also a finding of the learned trial Judge. We had looked at her grounds of decision and we found at pages 17 to 20, at paragraphs 13- 15, the following: "Saya mendapati perkara sabjek yang menjadi pertikaian di dalam kes ini ialah Suratan Hakmilik Asal Tanah milik Plaintif yang dikatakan tanpa persetujuan atau kebenaran Plaintif-Plaintif telah dengan cuainya dilepaskan oleh Defendan Kelima kepada pihak Defendan-Defendan sehingga tanah tersebut didaftarkan atas nama Defendan Pertama . Oleh yang demikian kedudukan posesi terakhir Suratan Hakmilik Asal Tanah adalah penting untuk ditentukan bagi memastikan dengan siapakah Suratan Hakmilik Asal Tanah berada. Adakah pada masa material ianya masih berada dalam jagaan Defendan Kelima atau berada dengan Defendan Pertama, Kedua, Ketiga dan Keempat atau dengan Plaintif-Plaintif. Saya merujuk kepada keterangan SP1 di dalam keterangan pemeriksaan utama beliau yang menyatakan di Soalan dan Jawapan No. 44 seperti berikut; "44) Q: Do you have any knowledge as to how the Original Title and the security documents to the property left the custody of the 5th Defendant? No. I feel that if it was solely due to the $ 5^{th} $ Defendant's negligence that they had released the Original Title to some other person or persons as neither I nor the Second Plaintiff had presented ourselves at the $ 5^{th} $ Defendant's office to collect the title and the other documents either from 'Miss Poh' or any other staff of the $ 5^{th} $ Defendant. I would also state that if the $ 5^{th} $ Defendant had not been negligent in releasing the Original Title, then this fraudulent transfer of my property to the $ 1^{st} $ Defendant would not have taken place...” SP1 telah menyalahkan Defendan Kelima yang telah dengan cuai melepaskan geran asal hartanah SP1 kepada pihak ketiga menyebabkan pemindahan hartanah plaintiff-plaintiff telah dibuat secara penipuan/frod oleh Defendan-Defendan. [14] SD3 mengesahkan beliau melihat sendiri SD4 mengambil semua dokumen sekuriti daripada peti simpanan ('safe') dan menyerahkan kepada SD3 untuk diletakkan di troli sementara menunggu untuk dikutip atau diambil oleh pelanggan.SD3 telah menyerahkan Suratan Hakmilik Asal Hartanah Salinan Gadaian, Surat Tawaran , Surat Persetujuan dan Surat Kuasa Wakil kepada SP1 sendiri. SP1 telah disahkan hadir sendiri ke bank pada 30 Januari 2002. SD3 juga mengesahkan bahawa beliau sendiri telah menyemak kad pengenalan SP1 bagi memastikan bahawa orang yang datang mengambil dokumen dokumen tersebut adalah SP1 sendiri. Bagi membuktikan bahawa dokumen-dokumen sekuriti telah diambil oleh SP1, SP1 telah menurunkan tandatangan beliau seperti di P56 (ms 95 KM66). Selain terdapatnya tandatangan SP1, SD3 dan SD4 juga menurunkan tandatangan ringkas mereka untuk mengesahkan dokumen-dokumen yang disenaraikan telah diambil oleh SP1. [15] SP1 di dalam keterangannya telahpun mengesahkan bahawa tandatangan di P56 adalah tandatangan beliau dan mengakui bahawa tujuan SP1 pergi ke bank pada 30 Januari 2002 adalah untuk mengambil dokumen-dokumen. Rujuk Q&A No 170 ms 153 NK Jld 1 "S: You came to the bank to collect the documents on 30/1/2002? J: Yes" Rujuk Q&A No 175 ms 155 NK Jld 1 "S: You had signed this documents and take back and acknowledged the receipt of the documents, correct? J; Yes." Rujuk Q&A No 178 ms 156 NK Jld 1 "S: I also suggest to you that you met up a lady called Chong Mui Fong whereby her initial is here CMF on the Form that you signed next to her who was attending to you at the bank. J: If I am there, and if I had signed it then it is true. Sometimes, they have signatures and sometimes they don't have signatures." Rujuk Q&A No 179 ms 156 NK Jld 1 "S: Do you agree that by signing this and all the ticks at the last page, you had actually taken back the title? J: It is a few years ago and I am old. I can't remember if the bank has given, the bank has given me". Fakta yang tidak dinafikan adalah bahawa pada 30 Januari 2002 SP1 telah pergi ke bank untuk mengambil geran asal dan semua dokumen sekuriti mengenai tanah dan dokumen dokumen tersebut telahpun diambil oleh SP1 dengan akuan terima dokumen yang ditandatangani oleh SP1." [32] As such, on the evidence, both oral and documentary, the learned trial Judge had found that the Plaintiffs had failed to prove that the HSBC Bank had breached its duty of care to the Plaintiffs pertaining to the release of land title. On a review of the evidence led in that regard, we were in agreement with learned counsel for the HSBC Bank that the learned trial Judge was correct in coming to the conclusion which she did. During cross-examination of the $ 1^{\mathrm{st}} $ Plaintiff herself, she had admitted that she had, in fact, collected the said land title document when confronted with the relevant documents which she had duly signed acknowledging the receipt of her land title from SD7, the officer of the $ 5^{\mathrm{th}} $ Defendant. Prior to that, it was the Plaintiffs' case that the land title had always been with the HSBC Bank for safe keeping and that she never collected it. It was her case that the $ 5^{\mathrm{th}} $ Defendant was negligent in parting with the said land title without her authorisation. [33] Based on the above appreciation of the evidence, we found that the learned trial Judge was correct in finding that there was a sale of the said land by the Plaintiffs to the $ 1^{\mathrm{st}} $ Defendant on the balance of probabilities. [34] As regards the alleged conspiracy between the $ 2^{n d}, $ $ 3^{r d} $ and/or $ 4^{t h} $ and the $ 5^{t h} $ Defendants to defraud the Plaintiffs, we were with the learned counsel for the Defendants that the evidence as led by the Plaintiffs had failed to establish the allegations levelled against them on the applicable standard of proof on the balance of probabilities. A tort of civil conspiracy takes place when two or more persons conspire to do an unlawful act and as a result of which injury is caused to another from the commission of that act. It usually would involve a common plan or design or intention among the co-conspirators in its commission so as to achieve its purpose or intention. As a direct result thereof, injury or damages is caused to the plaintiff. In this case, the alleged conspiracy among the Defendants had been to defraud the Plaintiffs of their land thus allegedly causing loss to the Plaintiffs. The particularisation of the fraudulent intent underlying the conspiracy allegation was contained in paragraph 19 of the Pernyataan Tuntutan Terpinda, in particular in sub-paragraph (h) and (i) therein. In essence, it was alleged that the $ 2 ^{n d} $ and $ 3 ^{r d} $ Defendants together with or through Ben David Eric [the deceased] had conspired ['telah merancang secara frod'] to obtain the original land title from the $ 5 ^{th} $ Defendant [HSBC Bank] by falsifying the signature of the $ 1 ^{st} $ Plaintiff. [35] The findings on this allegation as levelled by the Plaintiffs against the Defendants made by the learned trial Judge can be found in paragraph 26 of the learned trial Judge's Grounds of Judgement. We reproduce the same, below: "[26] Adakah Defendan 1, 2, 3 dan 5 bersubahat / berkonspirasi dengan Defendan Keempat menipu Plaintif-Plaintif dalam transaksi jualbeli hartanah tersebut? SD1 baru mengenali Defendan Keempat apabila diminta pergi bersama-sama berjumpa SP1. SD5 juga mengenali Defendan Keempat apabila Defendan Keempat berjumpa SD5 untuk membantu SP1 menjual tanah SP1. Defendan Kelima langsung tidak mengenali Defendan Keempat. SD1 dan SD5 juga tidak mengenali T/N Pathma Nalli. Defendan Keempat juga tidak begitu rapat dengan SP1 dan SP2. Maka itu dalam keadaan apakah Defendan Pertama, Kedua, Ketiga dan Keempat telah menipu SP1 dan SP2. Plaintiff-Plaintiff telah membuat satu laporan polis pada 11 September 2005 mengenai isu penipuan dan penyelewengan di dalam Jualbeli hartanah tersebut dan melalui surat Jabatan Siasatan Jenayah Komersil IPD Subang Jaya, Selangor bertarikh 3 September 2013 (D115 ms 2 KM124) memaklumkan kepada peguamcara Defendan Pertama bahawa pihak polis telah selesai menjalankan siasatan berhubung report USJ 8 Report 10145/05 dan kes telah dirujuk kepada TPR Selangor dan diputuskan kes telah di NFA ("No Further Action") pada 26 November 2007. Berdasarkan kepada keterangan saksi-saksi, Mahkamah mendapati Plaintif-Plaintif gagal mengemukakan sebarang bukti bahawa Defendan Pertama, Kedua dan Ketiga ataupun Defendan Keempat (simati) dan Defendan Kelima bahawa kesemua Defendan mempunyai pengetahuan dan bersubahat bersama-sama menipu Plaintif-Plaintif dalam mendapatkan Suratan Hakmilik Asal tanah milik Plaintif-Plaintif daripada Defendan Kelima." [36] We were in agreement with the submissions by learned counsel for the Defendants that the 1 $ ^{st} $ Plaintiff was involved in the impugned transaction every step of the way. She had signed on the SPA, beginning with the collection of the land title from the office of the 5 $ ^{th} $ Defendant HSBC Bank. It ended with her own evidence that she did not suffer any losses as a result of the land transaction with the 1 $ ^{st} $ Defendant. It is easy to allege conspiracy, but to prove it, even on the balance of probabilities, is quite another thing altogether. [37] In this case, we were of the view that the conclusion arrived at by the learned trial Judge that there was insufficient evidence led by the Plaintiffs to prove the alleged conspiracy as per her reasons, as appeared in paragraph [26] of her grounds of decision, was a reasonable and acceptable one. The fact that the evidence as led by the Plaintiffs, might have cast suspicion against the Defendants was of not much a consequence. Suspicion, is never, in law, a substitute for proof or evidence. Suspicion, however grave, will not be capable of establishing a factual circumstance, even on the lower threshold applicable in a civil claim such as in this case before us. In a case involving an allegation of conspiracy, there must be sufficient particularisation of the conspiracy among the Defendants, detailing their roles in the commission of the conspiracy, either by way of overt acts or otherwise. Again, pleadings must be subsequently substantiated by evidence coming from the relevant witnesses. Evidence must be led by the Plaintiffs to establish, on the balance of probabilities, the roles played by the respective Defendants in the web of conspiracy they were alleged to have created to defraud the Plaintiffs of their rightful property, to wit, the landed property that is the subject matter of this suit. In the case of Gasing Heights Sdn Bhd v Aloyah bte Abdul Rahman & 6 ors [1996] 3 AMR 3001 it was held that the Plaintiff must specifically plead and prove that the conspirators, in effecting the agreement or combination through lawful means, had the sole or predominant purpose of injuring the Plaintiff. [38] Having perused through the record of appeal we were not able to accede to the learned counsel for the Plaintiffs' contention that the alleged conspiracy had been established. In the circumstances as presented in this case, with respect, we agreed with the learned counsel for the Defendants that the evidence as adduced by the Plaintiffs had fallen short of proving their case of conspiracy against the respective Defendants, even on the lower threshold, on the standard of proof on the balance of probabilities. It was alleged in paragraph 19(h) of the Pernyataan Tuntutan Terpinda that the $ 2^{\mathrm{nd}} $ $ 3^{\mathrm{rd}} $ and/or through the deceased had the unholy plan among them involving the $ 1^{\mathrm{st}} $ Plaintiff's signature be forged. We had seen the evidence led on the matter that pertained to the $ 1^{\mathrm{st}} $ Plaintiff's signature. At its highest, it had remained not proved by the $ 1^{\mathrm{st}} $ Plaintiff that her signature had been forged. We were of the considered view that the dictates in the Gasing Heights case [supra] were not fulfilled by the Plaintiffs in this appeal before us, for judgement to be entered in their favour. [39] As regards the issue of damages, the Plaintiff in a civil suit must prove that he has suffered damages at the hands of the Defendant. It is never enough for him to merely allege that he has suffered damages. He has to prove that indeed he has suffered the damages as alleged. The legal position in this area of the law is well-settled. It was stated with great clarity by Lord Goddard in the oft-cited case of Bonham-Carter v Hyde Park Hotel [1948] 64 TLR 177 where the learned Lawlord had said thus: "Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars and so to speak, throw them to the head of the court, saying: 'This is what I have lost, I ask you to give me these damages.' They have to prove it." This is still very much good law in so far as our Courts are concerned. [See for example, the case of Bukit Unggul Golf and Country Resort Sdn Bhd v. Bukit Ringgit Holdings Sdn Bhd. [Civil Appeal No. W-03 (IM)(NCVC)-69-08/2016] and the case of Popular Industries Ltd v Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360 where the ratio of Lord Goddard was accepted and followed, as good law]. Indeed, in the case of Tan Sri Dato' Tajuddin bin Ramli & Anor v. Celcom (Malaysia) Berhad & Anor (and another appeal) [2014] AMEJ 0375 the age-old principle that a cause of action for conspiracy only accrues when damages is suffered is reaffirmed by the court. Also, it is still good law that conspiracies are only actionable if there is proof of damages occasioned to the plaintiff as enunciated by the English House of Lords case of Quinn v Leathem [1901] 495. [40] Reverting to this appeal before us, the Plaintiffs had also claimed for damages against all the Defendants. However, during trial, the following had transpired when the $ 1^{\mathrm{st}} $ Plaintiff was being cross-examined on the loss, thus damages issue, where she had responded, and we quote: "S: I am asking you that I put it to you that you had not suffered any damages as a result of anything done by the HSBC Bank?" J: Like what?" "S: Any losses?" "J: No." Even the learned trial Judge asked her, thus: "Court: What do you mean by answering "No"? You had not suffered any losses or anything done by HSBC?" "Witness: No." She was again asked the same question, thus: "You did not suffer any losses?" "J: No." [41] In light of such evidence, we were of the view that the learned trial Judge had no other option but to rule the way she did against the Plaintiffs. Not only was this a non-starter against the $ 5^{th} $ Defendant, there was no evidence of loss against the other Defendants. On the contrary, as was alluded to earlier by us, the $ 1^{st} $ Plaintiff had admitted that she did not suffer any losses. [42] Premised on the above, after perusing the appeal records and having also considered the written and oral submissions by all able counsel, we were of the unanimous view that the learned trial Judge had made the correct findings on all the issues that needed to be determined by her in the circumstances of this case in the Court below. We agreed with learned counsel for the 1st Defendant that this appeal basically revolved round the findings of facts made by the learned trial Judge. She was entitled to come to her inferences and the fact that we may come to our own different inferences from her, is not in itself, a good and valid ground for us to disturb her various findings, which to our minds, were supported by the evidence. Of course there is a big caveat there, in that such an inference so reached must not be so perverse, that no reasonable person so circumstanced would have come to such conclusion in making such inference. Suffice for us to say here that we did not find the learned trial Judge's findings to be perverse. Absent that perverse finding by the learned trial Judge, her decision is entitled to its due deference from the appellate court. [43] In the final analysis, we were in agreement with the findings and the ultimate conclusion reached by the trial judge on the issue of conspiracy to defraud the Plaintiff. In the upshot, we could not see how we ought to invoke our appellate powers to disturb the decision of the learned trial Judge. We were ever mindful of the observation attributable to Lord Pearce in the case of Onnasis & anor v Vergottis [1968] 2 Lloyds Rep 403, on the proper invocation of appellate powers of the Court of Appeal of England. At page 430 the learned Lawlord had this to say: "The function of a Court of Appeal is to set aside a Judgement that should not be allowed to stand because it occasions a miscarriage of justice. That wrong or miscarriage of justice may consist of a Judgement in favour of the wrong party. It may also consist of a failure in the judicial process to which both parties are entitled as of right, namely, the weighing of their respective cases and contentions. Such failure may constitute a wrong or miscarriage of justice even though it may appear that the appellant may in the end fail to secure a Judgement in his favour. But the fact that the right party seems to have succeeded in the court below will naturally make a Court of Appeal extremely reluctant to interfere, and it would only do so in the rarest cases. Such matters are questions of degree." [Italics provided by us for emphasis.] [44] In this case, the right party seemed to have succeeded in the trial court and as such the extreme reluctance to intervene could not be lightly uplifted from our collective minds, so to speak, unless it had been shown by the Plaintiffs that the impugned decision had been one that was plainly wrong, such that no reasonable tribunal could have arrived at the impugned decision, as did the trial Court. That 'plainly wrong test' is attributable, at least in the local context, to the decision in the apex court case of Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97. [45] Applying the above test on appellate intervention to the evidence and circumstances before us pertaining to this appeal, we saw no occasion to intervene with the learned trial Judge's decision and findings. Suffice to say that the learned trial Judge's decision could not be described, after due analysis by us, as one that was plainly wrong. To dispel all doubts, we found that the misdirection on the standard of proof on fraud by the learned trial Judge, did not occasion any prejudice to the Plaintiffs. The evidence was there. It was a matter of subjecting the very same evidence to the correct standard of proof, albeit it to a lower standard. The evidence led by the Plaintiffs in this case was unable even to meet that lower standard on the balance of probabilities, qualitatively as well as quantitatively. We were in unison that the learned trial Judge had appreciated the evidence led before her judiciously and assigned the weight to the evidence adduced by the witnesses before her. She had found the $ 1^{\mathrm{st}} $ Plaintiff's evidence to be more improbable as compared to those of the Defendant's witnesses. The $ 2^{\mathrm{nd}} $ Plaintiff very much repeated what the $ 1^{\mathrm{st}} $ Plaintiff had told her. We were of the view that the learned trial judge did not lose the distinct advantage of having the first-hand opportunity of observing the demeanour of the various witnesses who had appeared before her during the course of the trial. Conclusion [46] To recapitulate, for grounds proffered above, we had dismissed this appeal. The decision of the High Court dated 22 December 2014 was affirmed. Costs of RM20,000.00 each to $ 1^{\mathrm{st}} $ , and $ 5^{\mathrm{th}} $ Defendants. Costs of RM20,000.00 to $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants as global costs. All costs were subjected to payment of allocatur fees. Deposit was refunded to the Plaintiffs as the Appellants before us. Dated: 17 August 2018. Sgd. ABANG ISKANDAR BIN ABANG HASHIM Judge Court of Appeal Parties appearing: For the Appellant/ Plaintiff: Mr. S. S. Seelan; Messrs S.S Seelan & Associates. For the 1 $ ^{st} $ Respondent/ 1 $ ^{st} $ Defendant: Dato M. Ramachelvam; Messrs Rama-Rozi & Associates For the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Respondent/ $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendant: Mr. Jude Alexander; Messrs Alexander & Partners. For the 5th Defendant: Miss Dahlia Lee Wooi Mien; Messrs. Law Chamber of Dahlia Lee & Co. Cases referred to:

Bonham-Carter v Hyde Park Hotel [1948] 64 TLR 177

Bukit Unggul Golf and Country Resort Sdn Bhd v. Bukit Ringgit Holdings Sdn Bhd. [Civil Apeal No. W03 (IM)(NCVC)-69-08/2016]

Dato' Prem Krishna Sahgal V. Muniandy A/L Nadasan & Ors [2017] 10 CLJ 385

Gasing Heights Sdn Bhd v Aloyah bte Abdul Rahman & 6 ors [1996] 3 AMR 3001

Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97

Ma Clyde v Wong Ah Mei & Anor [1970] 2 MLJ 183

Onnasis & anor v Vergottis [1968] 2 Lloyds Rep 403

Popular Industries Ltd v Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360

Quinn v Leathem [1901] 495.

Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584

Tan Sri Dato' Tajuddin bin Ramli & Anor v. Celcom (Malaysia) Berhad & Anor (and another appeal) [2014] AMEJ 0375 Note: This copy of the Court's Grounds of Judgment is subject to formal revision.