1. ) Mazlan Bin Chik v Datuk Bandar Kuala Lumpur (WA-12BNCvC-96-08/2024)

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ZUBAIDAH BINTI RAAKZI 21/10/2025 15:32:14

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DZAR DZAN BINTI MOHAMMED TAHIB ... APPELLANTS AND DATUK BANDAR KUALA LUMPUR ... RESPONDENT [IN THE SESSIONS COURT AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA CIVIL SUIT NO.: WA-B51-4-09/2021

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DZAR DZAN BINTI MOHAMMED TAHIB ... PLAINTIFFS

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ALMAVENTURES DEVELOPMENT SDN BHD (Company No.: 201501029217 (1154538-P)) …DEFENDANTS

This was an appeal by the Appellant against the decision of the learned Sessions Court Judge (‘SCJ’) made on 25.11.2024 in dismissing the Appellants’ claim against the 1st Defendant (‘D1’) with costs of RM8,000.00 after a full trial.

After having considered the Record of Appeal and the written submissions by the parties, I found that there were no appealable errors by the SCJ and accordingly, the appeal was dismissed.

Dissatisfied, the Appellants are pursuing their right of appeal against my decision. These are my full grounds of judgment for purposes of the appeal.

The parties shall hereinafter be referred to as they were in the court below.

The Plaintiffs were all traders at the Pasar Besar Gombak which was owned and managed by D1. In 2017, the Plaintiffs learned that the Defendant had decided to demolish and rebuild the market which would become part of an apartment complex.

To compensate the traders, many of whom had been trading at the market for decades, the Defendant graded the traders based on the category of their trading activity and the compensation offered to the traders was based on this grading. This categorisation was based on a survey conducted in 2017 by the Action Committee established by the traders’ association appointed by D1 for this purpose.

The compensation was to be paid by the 2nd Defendant (‘D2’) as the developer of the project and was offered on an ex-gratia basis.

An offer was issued by D2 on 1.11.2017 according to the classification determined by D1 based on the survey.

The Plaintiffs were dissatisfied with their classification, which they regarded as arbitrary and unfair, and with the quantum of compensation offered and its ex-gratia nature, which they felt would not be recoverable in the event D2 failed to pay. They objected to D1’s decision to make payments according to the categories.

Following this, a meeting was held on 12.12.2017, during which it was decided that the Plaintiffs could appeal their classification and D1 would issue a new offer.

New offers were issued by DBKL to the Plaintiffs between January 2018 and February 2018. However, the Plaintiffs were still dissatisfied and submitted a claim via a letter dated 19.2.2018.

D1 disagreed with the Plaintiffs’ claims through the letters dated 19.2.2018 and 28.3.2018.

By early 2018, D1 cancelled the traders’ licences and ordered them to vacate the premises.

On 29.3.2018, a total of 29 traders, including the Plaintiffs, filed Judicial Review No.: WA-25-85-03/2018 at the Kuala Lumpur High Court to seek the annulment of the classification and compensation payments (‘JR’).

On 26.6.2018, a meeting chaired by YB Zuraida Kamaruddin, who was newly appointed as the Housing and Local Government Minister (‘Minister’), was held at D1’s office to attempt to reach a settlement, including resolving the compensation payment issue (‘26.6.2018 Meeting’). The 26.6.2018 Meeting was attended by D1 and other high-ranking officials of D1’s office and some of the Plaintiffs who represented the 29 traders involved in the JR proceedings.

The Plaintiffs’ case was that the parties arrived at an agreement to settle the matter amicably at the 26.6.2018 Meeting. The Plaintiffs vacated the Pasar Besar Gombak premises under the terms of the agreement. However, D1 did not honour its side of the bargain. Therefore, the Plaintiffs proceeded with the JR application.

D1, however, took the position that no settlement was reached and that’s why the JR hearing proceeded on 30.10.2018.

The JR application was dismissed by the High Court on 30.1.2019. The traders appealed to the Court of Appeal but the appeal was dismissed on 12.3.2019.

On 8.3.2021, the Plaintiffs filed proceedings in the Kuala Lumpur High Court against D1 and D2. The Plaintiffs’ claim was based on the alleged agreement concluded at the 26.6.2018 Meeting. The High Court subsequently directed that the case be tried in the Sessions Court.

At the Sessions Court, D1 and D2 succeeded in striking out the suit on 15.12.2021. The Plaintiffs’ appeal was dismissed by the High Court on 29.4.2022 (see Mazlan bin Chik & Ors v Datuk Bandar Kuala Lumpur [2022] MLJU 1553). Essentially, the High Court was of the view that the appeal should be dismissed for the reasons of res judicata, doctrine of election and wrong party sued.

The Plaintiffs appealed to the Court of Appeal only against D1. On 1.12.2022 the Court of Appeal allowed the Plaintiffs’ appeal and reinstated the case for trial against D1. There is no written judgment of the Court of Appeal.

All appeals to the High Court shall be by way of re-hearing (see O. 55, r. 2 of the RC 2012 and s 29 of the Courts of Judicature Act 1964 (Revised 1972) [Act 91]).

In Muhammad Shahir Bin Khalid And 2 Ors. v Ko Kang Min & Anor [2025] AMEJ 1247, this Court set out the law on appellate interference in these words: “[31] In Nor Azlina Abdul Aziz v. Expert Project Management Sdn Bhd [2017] 5 CLJ 58, the Court of Appeal illuminated on the occasions when appellate interference is warranted in the following passage from the judgment: “[20] … these occasions have been well set out in numerous cases. Some of these occasions are:

where the trial judge took into account irrelevant considerations and failed to give due weight to relevant considerations (see Director of Forestry, Sabah & Anor v. Mau Kam Tong & Ors And Another Appeal [2010] 3 CLJ 377; [2010] 3 MLJ 509);

where there was no proper evaluation of the evidence by the trial judge (see Lee Nyan Hon & Brothers Sdn Bhd v. Metro Charm Sdn

where the decision arrived at by the trial court was without judicial appreciation of the evidence (see Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 1);

where a trial court has so fundamentally misdirected itself, that no reasonable court which had properly directed itself and asked the correct questions, would have arrived at the same conclusion (see Raja Lob Sharuddin Raja Ahmad Terzali & Ors v. Sri Seltra Sdn Bhd [2008] 2 CLJ 284; [2008] 2 MLJ 87);

where the trial judge was plainly wrong in arriving at his decision (see Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97);

where a trial judge had so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him (see First Count Sdn Bhd v. Wang Yew Logging & Plantation Sdn Bhd [2013] 1 LNS 625; [2013] 4 MLJ 693 which followed the Privy Council case of Choo Kok Beng v. Choo Kok Hoe &

where the judgment is based upon a wrong premise of fact or of law (see Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416; [2012] 4 MLJ 149).”. [32] In Zone Nine Sdn Bhd (previously known as GBH Ceramics Sdn Bhd) v Kien Wai Plumbing Construction [2024] MLJU 2399, I had referred to two judgments of the apex court which had enlightened on the legal principles of appellate intervention as follows: “[24] The learned counsel for the Defendant, Mr. Jeffry Wong cited the decision of the Federal Court in Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 for the central feature of appellate intervention, which is to determine whether the trial court had arrived at its finding correctly on the basis of the relevant law and established evidence. A decision by the trial court which was arrived at without judicial appreciation of the evidence may be set aside on appeal. In determining whether the trial judge’s appreciation of the evidence is sufficient or otherwise, the process of evaluation of the evidence by the trial judge i.e. the assessment of the evidence, the weight that was given to the evidence and the reasons for accepting or rejecting the whole or any part of the evidence, must be examined. … [26] Gan Yook Chin’s case was among the many case authorities discussed in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC). It is settled law that an appellate court will not intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. If, in arriving at the decision, it could not reasonably be explained or justified and the decision of the trial court is one which no reasonable judge could have reached, the decision is susceptible to appellate intervention. The plainly wrong test is not intended to be used by the appellate court as a means to substitute its own decision for that of the trial court on the facts [see pp 81 - 96 of the law report, especially paragraphs 62 - 78; see too, among others, Azman bin Mahmood & Anor v SJ Securities Sdn Bhd [2012] 6 MLJ 1 (FC, at paragraphs 24 and 25, p 12), Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 (FC, at paragraph 60, p 464) and MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428 (CA, at paragraph 17, p 437)].” (see too, the case authority cited by the Defendant’s counsel, namely UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785.

In determining all the grounds of appeal in the instant appeal by the Plaintiffs against D1, I was guided by the above-mentioned legal principles.

In the Memorandum of Appeal, the Plaintiffs submitted 14 grounds of appeal.

For purposes of the appeal, the Plaintiffs categorised the grounds of appeal into three main grounds, namely, on whether the SCJ erred in law and in fact in her findings –

that in the Plaintiffs’ pleadings, there is no agreement against D1 in the 26.6.2018 Meeting;

in relation to the 26.6.2018 Meeting and the Minutes of Meeting prepared by the Plaintiffs; and

that res judicata applies to the Plaintiffs’ claims in the suit.

Each of the main grounds of appeal as outlined above will be discussed in turn below.

Initially the Defendant raised a preliminary objection regarding the alleged incomplete Record of Appeal filed by the Plaintiffs. However, in the Defendant’s Written Submission In Reply, this preliminary objection was retracted. 1st Ground: Whether the SCJ erred in law and in fact in her findings that in the Plaintiffs’ pleadings, there is no agreement against the D1 in the 26.6.2018 Meeting

At the end of paragraph 34 of the SCJ’s Grounds of Judgment (‘GoJ’) the SCJ held that: “… Dalam pliding telah jelas tiada sebarang persetujuan terhadap Defendan Pertama dalam mesyuarat bertarikh 26.6.2018 untuk sebarang pembayaran pampasan oleh Defendan Pertama dan tiada sebarang persetujuan yang boleh dikuatkuasakan terhadap Defendan Pertama.”. This finding was repeated in paragraph 42 of the GoJ.

According to the Plaintiffs, there was a serious misapprehension of facts by the SCJ because, from paragraphs 27 to 32 of the Statement of Claim (‘SoC’), the Plaintiffs’ claim was against both D1 and D2. Paragraph 28 in the SoC clearly states that the 26.6.2018 Meeting was with D1 and it was D1, through the Minister, that informed the Plaintiffs that D1 and D2 had agreed to the compensation package. As such, the pleadings do not support the SCJ’s finding that there was no agreement enforceable against D1.

I have scrutinised the SoC and I find that the Plaintiffs have pleaded –

in paragraph 27, that they were not satisfied with the offers given and hence, they had appealed to D1. This resulted in the 26.6.2018 Meeting;

in paragraph 28, that: “28. Hasil mesyuarat tersebut Yang Berhormat Menteri dan Defendan Pertama mengesahkan bahawa mereka telah mendapat persetujuan Defendan Kedua melalui mesyuarat yang diadakan di antara YB Zuraida, Defendan Pertama dan Defendan Kedua sebelum bermesyuarat dengan Plaintif-Plaintif, bahawa:-

28.1 Defendan Kedua bersetuju untuk membayar pampasan kepada Plaintif-Plaintif sebanyak RM2,000.00 sebulan selama 12 bulan. Surat tawaran pampasan dan bayaran pertama pampasan dijanjikan akan diselesaikan sebelum 10/07/2018;

28.2 Defendan Kedua bersetuju untuk membayar kos pindah keluar daripada Pasar Besar Gombak dan masuk ke premis baru sebanyak RM2,000.00 sahaja untuk setiap

28.3 Defendan Kedua bersetuju untuk membayar pampasan diatas kerugian jualan perniagaan setahun bagi setiap Plaintif, yang mana jumlahnya akan dibincangkan antara YB Zuraida dengan Defendan Pertama dan

28.4 Sekiranya bangunan baru Pasar Besar Gombak masih tidak siap selepas setahun pembinaan, Defendan Kedua berjanji akan membayar sebanyak RM2,000.00 sebulan kepada Plaintif-Plaintif sehingga bangunan siap untuk diduduki. Tempoh setahun dikira dari tarikh pembayaran pertama diterima oleh Plaintif-Plaintif; dan

28.5 Plaintif-Plaintif bersetuju untuk berpindah keluar daripada Pasar Besar Gombak dalam tempoh 2 minggu bermula dari 27/06/2018 sehingga 10/07/2018.”;

in paragraph 29, that on D2’s instruction, the parties responsible had cut the electricity supply to pressure the Plaintiffs to vacate the premises;

in paragraph 30, that based on the promises and confirmation by the Minister with the agreement of D1 and D2, the Plaintiffs had vacated the premises on 10.7.2018;

in paragraph 31, that whatever that was agreed in the 26.6.2018 Meeting was not fulfilled and the Plaintiffs did not receive any payment as compensation or costs as promised by the Minster, D1 and D2; and

in paragraph 32, that the Plaintiffs had vacated the premises because they believed D1’s and D2’s promises and representation and this resulted in them suffering losses and difficulties as they could no longer operate their business at Pasar Besar Gombak.

In my opinion, the SCJ was not plainly wrong in her findings because, insofar as payment of compensation is concerned, the Plaintiffs had pleaded in subparagraphs 28.1 to 28.4 of the SoC that payment of compensation and costs would only be by D2.

Moreover, the Plaintiffs’ witnesses themselves testified that D2 was the party who had agreed to pay compensation and costs to the Plaintiffs (see the answer to Question 20 in PW1’s and PW2’s Witness Statement; Question 19 in PW3’s Witness Statement; and PW2’s answer in cross-examination). The SCJ alluded to this fact in paragraphs 44 and 47 of the GoJ.

Therefore, any claim for failure to pay the Plaintiffs what was promised should be directed at D2. However, the claim against D2 was struck out by the Sessions Court and the Plaintiffs’ appeal was dismissed by the High Court. The Plaintiffs chose not to pursue a further appeal to the Court of Appeal.

In conclusion, I found that there was no merit in the 1st ground of appeal. 2nd Ground: Whether the SCJ erred in law and in fact in her findings in relation to the 26.6.2018 Meeting and the Minutes of Meeting prepared by the Plaintiffs

The Plaintiffs’ grievances with the SCJ’s decision are threefold, namely, –

the SCJ’s finding that the 26.6.2018 Meeting was merely a negotiation and was not an agreement;

the SCJ’s failure to make an adverse inference against D1 for failing to produce the Minutes of Meeting and instead the adverse inference was drawn against the Plaintiffs for not producing the original Minutes of Meeting; and

serious misdirection by the SCJ when she made an adverse inference against the Plaintiffs for failing to call the Minister as a witness

In paragraph 47 of the GoJ, the SCJ agreed with the Defendants’ submission that the 26.6.2018 Meeting “… hanya merupakan rundingan antara pihak-pihak dan tidak mencapai atau merangkumi kepada persetujuan pihak-pihak. …”. This finding was based on, among others, PW2’s evidence in cross- examination that D1 had promised to issue a new letter of offer and it was not a promise to make any payments.

The Plaintiffs contended that the Minutes of Meeting was the best evidence of what had transpired during the 26.6.2018 Meeting and the SCJ should have referred to the same rather than to testimony “from the hazy memory of witnesses with regard to events that occurred some 6 years prior to the trial or based on their laymen legal opinion” as “the witnesses are pasar malam traders of limited education and limited knowledge of the law. … Surely they were mincemeat in the hands of a skilled counsel.”.

The Minutes of Meeting which were referred to at the trial were prepared by PW4 immediately after the 26.6.2018 Meeting and was served on the Defendants on 10.7.2018 and on the Minister on 24.7.2018. The Defendants did not deny the contents of the Minutes of Meeting or offered to produce their own Minutes of Meeting to rebut the Plaintiffs’ version.

Under Item 6(B) in the “PEMBETULAN MINIT MESYUARAT ITEM NOMBOR 6A DAN 6B” on “KEPUTUSAN PAMPASAN UNTUK 29 PENIAGA-PENIAGA PASAR BESAR GOMBAK YANG TELAH DIPERSETUJUI BERSAMA OLEH YBM ZURAIDA, DATUK BANDAR KUALA LUMPUR & WAKIL PENIAGA”, it is stated in relation to –

“Pampasan untuk setahun untuk 29 peniaga sahaja (RM2,000 x 12 bulan)” that “Surat Tawaran Pampasan dan bayaran pertama pampasan dijanjikan selesai SEBELUM 10hb Julai 2018”; and

“Kerugian jualan perniagaan setahun untuk 29 orang peniaga sahaja (RM2,000 x 12 bulan)” that “YBM Zuraida akan berbincang dengan DBKL dan Pemaju untuk jumlah kerugian perniagaan setahun” and “Jumlah sebenar akan ditentukan sebelum Surat Tawaran dikeluarkan”.

The Plaintiffs were said to have complied with their end of the bargain to vacate the premises as agreed. As such, the issuance of the letter of offer was part of the agreed terms of a binding contract to pay compensation, and not a condition precedent as ruled by the SCJ.

As regards the Minutes of Meeting, the SCJ held as follows: “[38] Untuk minit mesyuarat bertarikh 26.6.2018, Peguam Terpelajar Defendan turut berhujah minit mesyuarat yang dikemukakan ke mahkamah bagi tujuan perbicaraan adalah pembetulan kepada minit mesyuarat yang asal. Saksi Plaintif ketika perbicaraan mengakui perkara ini. SP4 yang mengambil catatan dan menulis minit mesyuarat tersebut juga mengakui terdapat minit mesyuarat lain sebenarnya dan pembetulan yang dibuat adalah pada item 6A dan 6B. Minit mesyuarat yang asal tidak dikemukakan ke mahkamah. Maka jelas terdapat minit mesyuarat lain bagi mesyuarat bertarikh 26.6.2018. SP1 juga mengakui item 6A dan 6 B adalah perkara penting sekali dan pembetulan dibuat ke atas perkara ini. Fakta ini juga diakui oleh SP2. Oleh itu kegagalan Plaintif-Plaintif mengemukakan minit mesyuarat 26.6.2018 yang asal maka adverse inference harus dibuat ke atas Plaintif-Plaintif. Ianya juga tidak masuk akal untuk Plaintif-Plaintif meneruskan Semakan Kehakiman sekiranya betul terdapat dakwaan persetujuan seperti mana didakwa. Telah diakui oleh Plaintif-Plaintif sendiri apa yang dituntut dalam mesyuarat 26.6.2018 adalah perkara sama yang Plaintif-Plaintif ingin mendapatkan daripada prosiding Semakan Kehakiman. Jelas minit mesyuarat adalah perkara penting dan material dalam kes ini dan kegagalan Plaintif-Plaintif untuk mengemukakan minit mesyuarat asal mengundang adverse inferens terhadap mereka. Kegagalan membuktikan kesnya tuntutan Plaintif-Plaintif wajar ditolak oleh mahkamah.”.

It was indisputable that the Minutes of Meeting which was produced at the trial is titled PEMBETULAN MINIT MESYUARAT ITEM NOMBOR 6A DAN 6B”. PW1 and PW4 admitted that there were original minutes of the 26.6.2018 Meeting but the Plaintiffs did not produce these.

The corrections made pertain to Items 6(A) and 6(B), which are the most important points of the 26.6.2018 Meeting, specifically on what was demanded by the Plaintiffs and what was allegedly agreed upon by D1, D2 and the Minister. PW1 also admitted that these Items reflected the most crucial aspects of the 26.6.2018 Meeting.

Hence, the failure to provide the original minutes casts doubt on the contents of the corrected minutes. In my considered view, there was no error on the part of the SCJ in respect of her findings as articulated in paragraph 38 of the GoJ.

Furthermore, it is trite law that the burden of proof rests throughout the trial on the party who asserts that the facts exist [see s 101 of the Evidence Act 1950 [Act 56] (‘EA 1950’)]. Where a party on whom the burden of proof lies has discharged that burden, then the evidential burden shifts to the other party. However, if the party on whom the burden of proof lies fails to discharge it, the other party does not need to call any evidence.

Applying the above legal principle to the instant appeal, the burden lies on the Plaintiffs to produce not only the original minutes of the 26.6.2018 Meeting which they had prepared, but also the official version as prepared by D1’s office. Apparently, the Plaintiffs did not file any notice for D1 to produce the minutes of meeting on 26.6.2018 as prepared by D1’s office and any application for discovery of such document.

Moreover, PW1, PW2 and PW4 admitted, under cross-examination, that the words “Surat Tawaran Pampasan dan bayaran pertama pampasan dijanjikan selesai SEBELUM 10hb Julai 2018” was not an agreement of any payment by D1 but rather that D1 will issue a new letter of offer to the Plaintiffs. Only upon signing by the Plaintiffs to indicate their agreement to the terms in the letter of offer that it would become binding on the parties.

In particular, PW2 admitted that the Plaintiffs proceeded with the JR proceedings because the 26.6.2018 Meeting did not result in any agreement between the Plaintiffs and D1. The Plaintiff argued that there was a misdirection by the SCJ because PW2 was not present during the 26.6.2018 Meeting and he himself had to refer to the Minutes of Meeting. Even if this argument was accepted, other witnesses called by the Plaintiffs, who had attended the 26.6.2018 Meeting, had admitted that the original Minutes of Meeting on 26.6.2018 were not produced at the trial.

In his Witness Statement, DW1 had denied that any agreement was reached during the 26.6.2018 Meeting. However, the Plaintiffs’ counsel failed to cross-examine DW1 on this issue. In this regard, it was vital for the Plaintiffs to put their case to DW1, who was a key witness for D1, during cross-examination. The failure to cross-examine DW1 on this area of his evidence will be deemed to be an acceptance of that part of his evidence and the Plaintiffs were prohibited from raising the matter in their submissions (see Browne v Dunn (1893) 6 R 67, Aik Ming (M) Sdn Bhd & Ors v. Chang Ching Chuen & Ors And Another Appeal [1995] 2 MLJ 770, Soon Pen Yam & Anor v Bank of Tokyo-Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31 and Citibank Berhad v. Pembangunan Cahaya Tulin Sdn Bhd (Receivers And Managers Appointed) & Ors And Other Suits [2012] MLJU 275).

Moving on to the Plaintiffs’ failure in calling the Minister as a witness at the trial, the relevant part of the GoJ is re-produced below: “[45] Manakala SP3 ketika perbicaraan semasa diperiksa balas oleh Peguam Terpelajar Defendan mengatakan sememangnya terdapat persetujuan dalam mesyuarat bertarikh 26.6.2018 dan persetujuan ini telah disampaikan oleh YB Zuraida. Datuk Bandar KL yang hadir ketika mesyuarat tersebut tidak menyatakan sesuatu atau tidak membuat apa-apa bantahan. Fakta mengenai perkara ini juga disokong dengan keterangan SP1 selepas mesyuarat bayaran mengenai kerugian jualan akan dibuat dan telah dimaklumkan oleh YB Zuraida melalui panggilan telefon. Berdasarkan keterangan saksi-saksi Plaintif ketika perbicaraan adalah dapatan mahkamah untuk membuktikan kesnya kerana tuntutan Plaintif-Plaintif adalah berbeza dengan apa persetujuan atau bayaran exgratia yang diberikan kepada peniaga-peniaga Pasar Gombak yang lain, Plaintif-Plaintif wajar memanggil YB Zuraida semasa perbicaraan untuk mengesahkan apa-apa persetujuan seperti mana alegasi Plaintif-Plaintif. Mahkamah merujuk kepada senarai saksi Plaintif-Plaintif yang difailkan ke mahkamah, Plaintif-Plaintif telah menyenaraikan untuk memanggil YB Zuraida untuk dijadikan sebagai saksi Plaintif-Plantif bagi tujaun perbicaraan. Akan tetapi ketika perbicaraan Peguam Terpelajar Plaintif-Plaintif yang telah menyenaraikan YB Zuraida sebagai saksi tidak memanggilnya untuk dijadikan saksi. Oleh itu dapatan mahkamah tanpa kehadiran YB Zuraida yang merupakan saksi penting dan pihak yang telah membuat keputusan persetujuan untuk bayaran pampasan diberikan kepada Plaintif-Plaintif dengan tiadanya keterangan YB Zuraida untuk menyokong tuntutan Plaintif-Plaintif, tuntutan mereka di hadapan mahkamah ini tidak bermerit dan tidak dapat dipertahankan.”.

I agree with the D1’s submission that the Plaintiffs bear the burden of proving their case by calling the Minister, who was a material witness, to explain what happened during the 26.6.2018 Meeting and whether there was an agreement to pay the compensation as alleged by the Plaintiffs.

The Plaintiffs submitted that the SCJ failed to appreciate that the Plaintiffs had withdrawn their claim for loss of business and as such the Minister was no longer a material witness and her role was only to chair the 26.6.2018 Meeting. This submission runs counter to the Plaintiffs’ pleadings in paragraphs 28, 30 and 31 in the SoC where the Plaintiffs referred to the promises made by, among others, the Minister. During the trial, PW3 admitted that the alleged agreement with D2 and everything which was purportedly agreed at the 26.6.2018 Meeting was communicated by the Minister.

In the circumstances, the failure by the Plaintiffs to call the Minister as a witness not only invoked an adverse inference against the Plaintiffs under s 114(g) of the EA 1950, but it also rendered whatever the Plaintiffs had to say about the Minister’s promises or agreement as hearsay. The SCJ did not err in her findings on this point (see paragraph 46 of the GoJ).

On a final note, the Plaintiffs had submitted that the issuance of the letter of offer was part of the agreed terms of a binding contract to pay compensation and that the current suit was based on the “settlement agreement” which was concluded at the 26.6.2018 Meeting.

However, in paragraph 32 of the SoC, all that the Plaintiffs pleaded was “Plaintif-Plaintif telah keluar daripada Pasar Besar Gombak tersebut kerana percayakan janji-janji serta representasi yang diberikan oleh Defendan Pertama dan Defendan Kedua yang menyebabkan mereka mengalami kerugian dan kesusahan kerana tidak lagi boleh berniaga di Pasar Besar Gombak.”. The Plaintiffs did not plead that, based on the promises and representations, an oral contract was formed and that D1 had breached the same or that there was a “settlement agreement”. In fact, a scrutiny of the SoC does not clearly show that the Plaintiffs’ cause of action was premised on there being a contract between them and D1, and that D1 had breached the contract or that there was a “settlement agreement”.

For the reasons as afore stated, I found that the 2nd ground of appeal was similarly devoid of any merit. 3rd Ground: Whether the SCJ erred in law and in fact in her findings that res judicata applies to the Plaintiffs’ claims in this suit

The SCJ discussed this issue in paragraphs 48 - 54 of the GoJ. In paragraph 53 of the GoJ, the SCJ said: “[53] Daripada keterangan SP1, SP2 dan SP3 ketika pemeriksaan balas oleh Peguam Terpelajar Defendan saksi-saksi Plaintif telah bersetuju dan mengesahkan tuntutan mereka semasa permohonan Semakan Kehakiman dan tuntutan di mahkamah ini adalah berkaitan dengan pampasan sebanyak RM53,000.00. Ketika permohonan Semakan Kehakiman, Plaintif-Plaintif tidak bersetuju dengan kaedah bayaran pampasan/exgratia yang ditetapkan oleh Defendan Pertama dan telah memohon bayaran pampasan yang sama dengan bayaran pampasan dituntut di Mahkamah ini. Akan tetapi Mahkamah Tinggi yang telah menolak semakan kehakiman Plaintif-Planitf berhubungan dengan pampasan ini. Dengan keterangan dan pengakuan saksi-saksi Plaintif sendiri ketika perbicaraan di mahkamah ini, pampasan yang dituntut adalah sama dengan tuntutan ketika di Mahkamah Tinggi, mahkamah berpendapat Res Judicata terpakai terhadap tuntutan-tuntutan Plaintif dalam tindakan ini. Tuntutan Plaintif-Plaintif yang telah ditolak oleh Mahkamah Tinggi berdasarkan kausa tuntutan yang sama tidak boleh membuat tuntutan sekali lagi di Mahkamah ini.”.

D1 argued that the civil suit in the court below was the same as the JR claim and the Plaintiffs were barred from making the same claim twice. It was asserted that PW1, PW2 and PW3 had acknowledged that the JR proceedings were about compensation payment issues and the 26.6.2018 Meeting was also about compensation payment issues. Therefore, the claims for compensation payments purportedly arising from the 26.6.2018 Meeting were subject to the principle of res judicata and cannot be raised again at the trial in the Sessions Court, especially since the issue of compensation payments was subsequently decided by the Court of Appeal.

I had considered the opposite contestations by the Plaintiffs and D1 on the 3rd ground of appeal and as I favoured the position taken by the Plaintiffs and no cross-appeal was filed by D1 against my decision, suffice for me to state my justifications in accepting the Plaintiffs’ submission that res judicata does not apply in the instant case as follows:

res judicata applies only in respect of a matter over which the Court has pronounced a judgment (see Akitek Tenggara Sdn Bhd v Mid Valley City Sdn Bhd [2007] 5 MLJ 697). There is no GoJ by the Court of Appeal, hence, it cannot be concluded with certainty that the Court of Appeal had made any decision in respect of compensation payments by D1 to the Plaintiffs. In all likelihood, the Court of Appeal decided that the case should be heard by way of a full trial because there are triable issues, and witnesses must be called to testify, rather than resolving the matter through a striking out application. Without a written judgment, the Court of Appeal’s reasons for allowing the Plaintiffs’ appeal was purely speculative (see Malaysian Motor Insurance Pool v. Tirumeniyar Singara Veloo [2019] 10 CLJ 731 and Tetuan Wan Shahrizal, Hari & Co v Public

the JR proceedings was with a view of quashing D1’s decision on the grading and classification of the traders while the suit at the court below, in the Plaintiffs’ words, were based on the “settlement agreement” concluded at the 26.6.2018 Meeting on facts which occurred after the application for JR was filed. In other words, the “settlement agreement” was a completely new cause of action; and

judging from the reliefs sought, in the application for JR, apart from the prayers for declaration and certiorari, the applicants sought general damages, aggravated damages, exemplary damages and an enquiry and assessment of damages to determine the amount of damages to be paid to the applicants. In comparison, the total amount claimed in the Sessions Court suit was for the quantified figure of RM3,099,730.00 being each Plaintiff’s claim for “gantirugi kehilangan punca pendapatan” consisting of “pendapatan purata bulanan, kerugian pendapatan selama 34 bulan, kos pindah dan saguhati yang ditawarkan DBKL sebanyak RM2,000.00 sebulan dikira selama 34 bulan”.

Premised on the abovesaid considerations, I was constrained to dismiss the appeal with costs of RM5,000.00, subject to allocatur. Dated: 21.10.2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR Solicitors for the Appellants : Nasar Khan Bin Mirbas Khan (Muaz Zafar with him) Messrs. Mazwan Dee Nasar & Shima Solicitors for the Respondent: Mohamad Zaid bin Daud@Daud Yatimee (Mohd Munzeer Bin Zainul Abidin and Muhammad Ali Redha bin Ahmad Rashidi with him) Messrs. Yusfarizal, Aziz & Zaid