Alina Binti Mohd Tahir v Setia Food Hunter Sdn. Bhd. (JA-24NCvC-816-06/2025)

SETIA FOOD HUNTER SDN BHD [Company No. : 202001040026(1396347-X)]

TIONG BOON KEONG [NRIC No. : 690113-01-5155]

TAN KIM LAI [NRIC No. : 550131-08-5419]

AHMAD BASHIER BIN MUHAMMAD AFIFI [NRIC No. : 900501-03-6153] …RESPONDENTS 06/03/2026 02:28:44 JA-24NCvC-816-06/2025 Kand. 35 S/N 9faScoTf02u1g978Y9fQ

This is Applicant’s application pursuant to sections 236 and 239 of the Companies Act 2016 [Act777] seeking, inter alia –

a declaration that her purported removal as company secretary of the First Respondent on 20 December 2024 is null and void;

a declaration that she remains the lawful company secretary of the First Respondent;

a declaration that the appointment of the Fourth Respondent as company secretary is invalid; and

damages for loss and distress arising from her unlawful removal.

The Respondents oppose the application and maintain that the removal was regular, relying on a board resolution dated 20 December 2024 and contending that the Applicant’s claim for damages is not sustainable in proceedings commenced by Originating Summons.

Parties filed their written submissions and bundle of authorities and orally submitted before this Court on 13 October 2025, and a decision was fixed for today (29 October 2025). S/N 9faScoTf02u1g978Y9fQ

The First Respondent is a private limited company incorporated under Act 777. The Second and Third Respondents are First Respondent’s only directors and shareholders. The Applicant was appointed as company secretary on 15 April 2022.

On 4 December 2024, the Second and Third Respondents issued a notice convening an EGM to consider, among other matters, the removal of the Applicant as company secretary. The meeting was said to have been held on 20 December 2024, at which the Applicant was removed and the Fourth Respondent appointed in her place.

Hence, the Applicant avers that she was never notified of the intended removal, did not attend any meeting and only discovered months later that the Fourth Respondent had been lodged as the new company secretary with the Companies Commission of Malaysia.

The Applicant contends that her removal was effected without prior notice, without a valid board resolution and without compliance with sections 236 and 239 of Act 777. She further asserts that the two directors, ie. the Second and Third Respondents, acted ultra vires in purporting to remove her through an extraordinary general meeting (EGM) rather than a board meeting and that the subsequent appointment of the Fourth Respondent as company secretary was consequently void. S/N 9faScoTf02u1g978Y9fQ

Based to the submissions and affidavits, the following issues arise for determination –

whether the Applicant’s removal as company secretary was valid under sections 236 and 239 of Act 777;

whether the appointment of the Fourth Respondent is valid; and

whether the Applicant is entitled to the declaratory and monetary reliefs sought.

whether the Applicant’s removal as company secretary was valid under sections 236 and 239 Act 777

Section 239 Act 777 provides – “The Board may remove a secretary from his office in accordance with the terms of appointment or the constitution”.

Read together with section 239, subsection 236(1) of Act 777 provides that “the Board shall appoint a secretary and determine the S/N 9faScoTf02u1g978Y9fQ terms and conditions of such appointment”. In other words, the power to appoint and remove a company secretary lies with the Board of Directors, and the manner of removal is either –

as stated in the terms of appointment, or

as provided in the company’s constitution.

On the evidence before this Court, there is no constitution of the First Respondent exhibited and there is no written letter or instrument setting out the Applicant’s terms of appointment as company secretary. This is expressly acknowledged in the affidavits. No service contract, no secretary’s engagement letter, and no clause specifying a mode of termination were produced.

In the absence of both a constitution and written terms of appointment, any purported removal of the Applicant must, at a minimum, comply strictly with the statutory framework in sections 236 and 239 of Act 777. To this Court's mind, this necessarily requires a decision of the Board of Directors, not the shareholders and it requires that decision to be real, provable, and procedurally fair.

The Respondents rely on what is described as a “Directors’ Resolution dated 20 December 2024”, said to have removed the Applicant and appointed the Fourth Respondent. However –

there is no contemporaneous minute of any board meeting produced; S/N 9faScoTf02u1g978Y9fQ

there is no attendance record signed by the Second and Third Respondents as directors;

there is no notice to the Applicant that her removal was to be considered; and

the Second and Third Respondents (who are the only directors and shareholders) did not positively depose, in their own affidavits, that such a board meeting was in fact convened and held in the manner required.

Instead, the only person who annexed that alleged Board Resolution was the Fourth Respondent, whose appointment depends on the validity of that same document and who candidly admits that he came in after the alleged events. He cannot give direct evidence of what transpired between the directors prior to his purported appointment. Therefore, this Court is of the view that his affidavit is not capable of curing the evidential gap.

The Respondents also referred to an Extraordinary General Meeting (EGM) of shareholders. On their own case, the EGM was convened by the two shareholders to “remove the secretary”. That position is untenable in law. Both subsection 236(1) and section 239 of Act 777 vest the power of appointment and removal of a company secretary in the Board.

The shareholders in general meeting cannot usurp that statutory function. This approach is consistent with the High Court in Ng Kae Jeng v. Invenpro (M) Sdn Bhd & Ors; Companies Commission of S/N 9faScoTf02u1g978Y9fQ Malaysia (Intervener) [2025) MLRHU 1216 and Mah Yuen Shi v. Wong Koon Hung & Ors [2025] MLRHU 2061, where the Court held that removal of a company secretary must emanate from a valid act of the Board and not merely from shareholders acting in their capacity as shareholders.

Further, in those authorities the Court stressed two safeguards –

there must be a genuine board decision traceable to a board process; and

notice must be given to the existing secretary whose removal is proposed.

The rationale for this is straightforward. The company secretary is an officer of the company and may only be displaced by the corporate organ that is legally empowered to appoint and supervise that office, namely, the Board.

In this case, the Applicant’s unchallenged evidence is that she was given no prior notice that her removal was being proposed, was not consulted and only discovered months later that the Fourth Respondent’s name had been lodged with SSM. The Respondents did not dispute that she received no prior notice, rather, their position was that no notice was legally required. That submission cannot stand in light of authority.

The Privy Council in Lee v Chou Wen Hsien [1984] 1 WLR 1202 affirmed the broader principle that where a person holds office in a S/N 9faScoTf02u1g978Y9fQ company, that person is entitled to be treated fairly, including being told that their removal is sought and on what basis, before they are displaced. Our courts have treated that requirement of fair notice as part of natural justice even if the company’s internal documents are silent. The same approach was applied domestically in Mah Yuen Shi and Ng Kae Jeng.

This Court therefore find, –

firstly, that there is no admissible and credible evidence of a valid board resolution removing the Applicant as contemplated by sections 236 and 239 of Act 777;

secondly, that the purported reliance on an EGM of shareholders is legally misconceived because the Company Secretary is not removed by shareholders’ vote; and

thirdly, that the removal was carried out without notice to the Applicant and in breach of basic procedural fairness.

On these grounds, the Court is satisfied that the Applicant’s purported removal as company secretary was invalid, unlawful and of no legal effect. S/N 9faScoTf02u1g978Y9fQ

Whether the Appointment of the Fourth Respondent as Company Secretary is Valid

The validity of the Fourth Respondent’s appointment hinges entirely on the validity of the Applicant’s removal. A subsequent appointment cannot stand where the prior removal was unlawful or procedurally defective.

The Fourth Respondent deposed that he was appointed company secretary on 20 December 2024 pursuant to the same “Board Resolution” that purportedly removed the Applicant. As found earlier, there is no admissible evidence that such a resolution was duly passed by the Board.

The Fourth Respondent also conceded that he was not present at any meeting of the First Respondent and that the resolution he produced was merely provided to him upon accepting the appointment. His affidavit is therefore hearsay on the critical fact of whether a valid meeting was held.

As to the legal proposition, it is a settled principle that where the foundation of an appointment is unlawful, all subsequent acts flowing from it must also fall. In Ji Seng Hong Plastic Manufacturing Sdn. Bhd. v Ng Bak Soon & Ors [2015] MLJU 2175, the Court held that a transaction or appointment based on an invalid authorising act is void ab initio. S/N 9faScoTf02u1g978Y9fQ

Applying that reasoning, since the Applicant’s removal was invalid, the Fourth Respondent’s appointment, being premised on the same impugned resolution, must likewise be declared void and of no legal effect.

Whether the Applicant is Entitled to Damages

Aside from the declaratory relief, the Applicant also prays for general, exemplary and aggravated damages for loss and distress said to arise from her unlawful removal. It is trite that damages of this nature must be supported by specific pleadings and evidence of quantifiable loss.

Unfortunately, no particulars of loss were set out in the supporting affidavit or in the Originating Summons. The Court is therefore unable to assess or quantify any compensatory sum.

More importantly, the present proceedings were commenced by Originating Summons, a procedure intended for declaratory and interpretative relief where the facts are largely undisputed. Claims for damages involving factual disputes and assessment of quantum must be brought by writ action, as reaffirmed in Ismail Othman & Ors v. Seacera Group Bhd & Ors [2022] MLRHU 366.

For that reason, while the Applicant has succeeded on the declaratory aspects of her claim, the head of damages is dismissed without prejudice to her right to pursue it in a separate action by writ. S/N 9faScoTf02u1g978Y9fQ

Based on the reasons set out above, this Court finds that –

the purported removal of the Applicant as company secretary of the First Respondent on 20 December 2024 was invalid and of no legal effect;

the appointment of the Fourth Respondent as company secretary is void; and

the Applicant remains the duly appointed company secretary of the First Respondent.

Accordingly, this Court made the following orders –

a declaration that the Applicant’s removal as company secretary of the First Respondent on 20 December 2024 is null and void;

a declaration that the appointment of the Fourth Respondent as company secretary is invalid and of no legal effect;

a declaration that the Applicant remains the lawful company secretary of the First Respondent;

the Applicant’s claim for damages is dismissed without prejudice to her right to pursue such claim by writ action; S/N 9faScoTf02u1g978Y9fQ

costs of RM15,000.00, subject to allocator; and

prayer (g),for penal notice. Dated : 29 October 2025 Dr. Noradura Binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Defendant’s Solicitor : Tetuan Onn & Partners Plaintiff’s Solicitor : Tetuan Alias, Kang, Ungku Mas & Associates S/N 9faScoTf02u1g978Y9fQ