Mohd Azizul bin Mohd Nasir v Shakib bin Abu Bakar Banafee (JA-22NCC-37-05/2023)

The Plaintiffs’ main action herein against the Defendant is, among others, for a declaration that the First Plaintiff is the legal and beneficial owner of 250,000 unit of shares currently allotted under the Defendant’s name in a company known as AWH International Logistics Sdn Bhd (“AWH”). In that regard, it is the Plaintiffs’ case that the Defendant holds the said shares on trust and as nominee for the First Plaintiff.

Now, before this Court is Enclosure 73 which is the Plaintiffs’ Notice of Application dated 09.09.2024 seeking an interlocutory injunction to restraint the Defendant from exercising and/or taking any action on his capacity as a “shareholder” in AWH and/or filing any further legal proceedings involving AWH; and to restrain P and/or his agents including his family members from making any report or complaint to the authorities or social media relating to the affairs of AWH until the final resolution of the main action.

After having heard submissions from parties, this Court allowed Enclosure 73 for the following prayers:-

(a) an interim injunction against the Defendant from exercising and/or taking any action on his capacity as a “shareholder” in AWH including making any claim for dividend from AWH;

(b) an interim injunction against the Defendant from filing any further court action against AWH;

(c) in the event any action has been instituted by the Defendant against AWH prior to the interim injunction as ordered this day, the Plaintiffs are given liberty to apply to intervene or to apply for stay in the said action; and

(d) an interim injunction against the Defendant and/or his agents and/or his family members from making any comment involving AWH either written or oral in any media platform.

The Court however disallowed the Plaintiffs’ application for an interim injunction against the Defendant from making future reports or complaints to the authorities pending the disposal of the main action herein.

Hence, this is the Court’s grounds of judgement for the said decision. Salient facts

The Plaintiffs are the registered shareholders and directors of AWH.

The Defendant at all material time has 250,000 units of shares in AWH registered in his name.

Historically, the Defendant was also once among the directors in AWH.

It is common ground that there were grouses between the Defendant on one side and the Plaintiffs on the other side relating to AWH’s affairs. It later developed into a subject of civil litigation when the Defendant instituted an action against AWH at the Johor Bahru High Court vide Originating Summons No. JA-24NCC-14-06/2022 (“Suit 14”). In that suit, the Defendant, among others, applied to inspect AWH’s financial and other records under s.245 of the Companies Act 2016. Suit 14 however was dismissed by the High Court on 30.04.2023 but now pending appeal at the Court of Appeal.

The Plaintiffs on the other hand later filed the main action herein for the Court to determine the legal and beneficial proprietorship of 250,000 units of AWH’s shares currently allotted and held under the Defendant’s name. As mentioned earlier, the Plaintiffs’ position is that the Defendant holds the said shares on trust and as nominee for the First Plaintiff.

In addition to the aforesaid actions, the Defendant filed two more separate actions against the Plaintiffs and AWH which are: (a) a minority oppression suit via Writ No. JA-22NCC- 67-10/2023 (“Suit 67”), and (b) a derivative action via Originating Summons No. JA-24NCC-29-07/2024 (“Suit 29”).

Suit 67 was later ordered by this Court to be consolidated and heard together with the main action herein. Suit 29 on the other hand was struck out by this Court at the instance of the Plaintiffs’ application.

Apart from the court cases, it is also undisputed that the Defendant had also lodged various complaints or reports with the Malaysian Anti-Corruption Commission (“MACC”), Companies Commission of Malaysia (“CCM”), Inland Revenue Board Malaysia (“LHDN”) and the Royal Malaysian Police (“RMP”) relating to the internal affairs of AWH and the Plaintiffs as AWH directors.

Not only that, the Plaintiffs also allege that the Defendant through his agent or family members have been making comments or public statements relating to AWH in the social media.

The Plaintiffs primary contention in Enclosure 73 is that the aforesaid acts of the Defendant’s had affected the business operation of AWH and had also tarnished AWH’s image and the Plaintiffs’ reputation among their business associates and clientele.

Hence, the Plaintiffs pray that the Defendant should be restrained from instituting further action in any court against AWH and should also either by himself, his agents or his family members be restrained from making further reports, complaints or statements to the authorities and on any media platform relating to AWH’s business affairs. Legal Position

On proper perusal of the cause papers and the relevant affidavits, it is apparent that the Plaintiffs vide Enclosure 73 are moving this Court to issue an injunction of a quia timet nature against the Defendant. In simple term, quia timet injunction is a type of injunction granted by the court to prevent any damage or wrongs before they occur.

Since quia timet injunction as injunctions in general has its origin from the English equity jurisprudence, reference to relevant English authorities is indeed instructive.

In Fletcher v Bealey (1885) 28 Ch D 688 (High Court, Chancery Division) it was held that:- “I do not think, therefore, that I shall be very far wrong if I lay it down that there are at least two necessary ingredients for a quia timet action. There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shown, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a quia timet action."

Reference may also be made to Redland Bricks Ltd v Morris [1970] AC 652 (House of Lords):- “But to prevent the jurisdiction of the courts being stultified equity has invented the quia timet action, that is an action for an injunction to prevent an apprehended legal wrong, though none has occurred at present, and the suppliant for such an injunction is without any remedy at law.”

Further reference also made to A-G for Dominion of Canada v Ritchie Contracting and Supply Co [1919] AC 999 (Privy Council):- “But no one can obtain a quia timet order by merely saying "Timeo"; he must aver and prove that what is going on is calculated to infringe his rights. In the present case there is no averment of a specific character, far less proof, that what is being done at Spanish Bank will affect navigation in the slightest degree. This point, therefore, also fails."

In Malaysia, the source of power of the court to grant an injunction which include quia timet can be referred to s.50 of the Specific Relief Act 1950 which provides that:- "Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.

As to the effect of a temporary quia timet injunctions, reference can be made to s.51 (1) of the same Act further provides that:- "Temporary injunctions are such as are to continue until a specified time, or until the further order of the court. They may be granted at any period of a suit, and are regulated by the law relating to civil procedure."

In PPES Resorts Sdn Bhd v Keruntum Sdn Bhd [1990] 1 MLJ 436, it was held by the High Court that:- “Now, the power of the Court to grant an injunction, temporary or perpetual is provided under s. 50 of the Specific Relief Act 1950 (Specific Relief Act) and such power is a discretionary one. I do not think that it is seriously disputed that quia timet injunction is a form of an interlocutory injunction,…” (emphasis added)

In respect of proof, there are two ingredients that need to be proved by an applicant in a quia timet injunction. As was held in Tan Sri Dato’ Kam Woon Wah v Dato’ Sri Andrew Kam Tai Yeow & Anor [2022] MLJU 424, those ingredients are: “‘There are at least two necessary ingredients for a quia timet action. There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shown, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a quia timet action.”

Thus, based on the above authorities, it can be summarized that this Court is generally empowered and has discretion to issue a quia timet injunction as a form of relief. The next question to be asked is whether the Plaintiffs have provided sufficient materials as proof Court that the danger is imminent, and if it occurs would be very substantial. Analysis and decision

At the outset, from the cause papers and relevant affidavits filed relating to Enclosure 73, it is this Court’s finding that the Plaintiffs have established the existence of a serious issue to be tried in the main action. I say this because from the pleadings available in this Court, it is obvious that the subject matter of dispute in the main action relate to the ownership of 250,000 shares held by the Defendant in AWH.

In my view, as a registered shareholder and a member of AWH, the Defendant may be imposed with certain liabilities or is conferred with certain rights under the Companies Act 2016 vis a vis AWH. In other words, there are rights and liabilities that are attached with the shares that are capable of being enforced either by AWH as company towards the Defendant as shareholder/member or vice versa.

As such, the dispute on the ownership of 250,000 units of shares in AWH as held by the Defendant would have the effect on the locus standi of the Defendant as shareholder/member in bringing court actions against AWH.

Since the Defendant’s ownership of the said shares in AWH shares has yet to be established, the Defendant cannot be allowed to complicate matters by instituting further court proceedings against AWH.

From the facts, the ‘imminent danger’ can be inferred from the previous acts of the Defendant in filing Suit 67 and Suit 29 despite had been put into notice that his ownership of the said shares in AWH is heavily challenged by the Plaintiffs in the main action.

Since ownership of shares is central in the main action, further court actions if allowed may even lead the said issue from one being decisive into one being clingy to other issues which are certainly unnecessary and will protract the trial in the main action.

Thus in that regard, the concern raised by the Plaintiffs in Enclosure 73 is well founded. The main action and Suit 67 have to be proceeded with as they are scheduled. Multiplicity of proceedings must not be allowed to be taken by the Defendant against AWH as this will stultify the Court’s function in ensuring there is be finality in litigation.

Therefore, the Defendant should be restrained from exercising any of his so called ‘rights’ as shareholder/member of AWH including to institute further court actions against AWS, and so I order. Balance of convenience would dictate that the status quo be preserved pending the outcome of the main suit here.

By the same reasoning, I also order that the Defendant either by himself or his agent or his family members to be restrained from making any comments relating to the ongoing cases between the Defendant and AWH and the Plaintiffs in any media platform. Apart from being prejudicial to AWS and the Plaintiffs in terms of their position in the ongoing cases as well as their goodwill and reputation, the matter is now subjudice and that it would be inappropriate to be discussed or commented upon publicly so as not to undermine the integrity and independence of the court.

In respect of restraining the Defendant from making future complaints or reports to the authorities, I disallow the said relief simply because the said authorities are conferred with powers to investigate and to take enforcement action again criminal wrongs under the relevant laws. Whether the complaints or reports are justified or otherwise defamatory or malicious, that would be a subject of different consideration. But in so far as the law is concerned, it would be against public policy to restraint a person from making complaints or reports to the authorities [see: Lee Yoke Yam v Chin Keat Seng (2013) 1 MLJ 145 (FC); Dato’ Dr. Low Bin Tick v Datuk Chong Tho Chin and other appeals (2017) 5 MLJ 413 (FC)]. Conclusion

For reasons stated above, this court allows Enclosure 73 limited to prayers (a), (b), (c), (d) and (g) with costs in the cause. Dated: 24 May 2026 …………………………………………. (NOOR HISHAM BIN ISMAIL) Judge High Court, Johor Bahru For the Plaintiffs : Messrs Arthur Wang, Lian & Associates Unit No 568-9-10 & 9-11 Kompleks Mutiara 3 ½, Miles Jalan Ipoh, 51200, Kuala Lumpur For the Defendant: Messrs Damien Chan, Hannibal & Ng Chambers K-6-12, Solaris Mont’ Kiara Jalan Solaris, Mont Kiara 50480, Kuala Lumpur