Preamble
Pursuant to that agreement, the defendant was billed vide invoices with serial numbers 00669130; 00072616; 00073770 and 00077523. [5] There was also a counterclaim by the defendant for general and special damages. It was admitted to by the representative of the defendant DW1 who had testified in court to say, they are unable to furnish proof on the counterclaim. Thus, the counterclaim was rightfully dismissed by the magistrate. [6] The defendant had disputed the claim by plaintiff stating prior to execution of the courier service agreement, it was agreed between DW1 and representative of the plaintiff, one Wan Taufik (to be referred as Taufik) that there shall be an additional clause on the rate of payment to be made by the defendant to the plaintiff. According to P1, at clause 2.4, the rate is to calculated on the basis of weight of the products to be delivered to the customers of the defendant, which would be in kilogram or volumetric, but chargeable rate is, whichever the highest. The additional clause was purportedly negotiated between Taufik for and on behalf of the plaintiff and DW1 representing the defendant. For the record, Taufik too was the signatory to P1. Incidentally the additional clause allegedly negotiated was not reflected in P1 but it was claimed by the defendant via DW1 that the additional clause was the inducement for them to enter into P1. [7] However, contention by the plaintiff was that, PW1 and PW2 whom had testified on behalf of the plaintiff had no personal knowledge of the meeting and the negotiated additional clause between Taufik and DW1. It was on that score; the defendant had argued that the plaintiff ought to have called Taufik as its witness to rebut or refute the claim by the defendant that there was an additional clause negotiated and agreed upon over and above P1. [8] Conversely, the plaintiff had argued that their claim is premised on P1 which does not carry the additional clause and since it was purportedly negotiated and agreed to between Taufik and DW1, it is then for the defendant to call him as a witness and to adduce evidence on the additional clause. Bereft of that, the claim by the plaintiff is pure and simple which is premised on P1 and the defendant is contractually bound to pay the amount due for services rendered by plaintiff, and it has no leg to rest on the additional clause, simply because it was not proven and the proof available on a balance of probabilities was that P1 was the binding contract between plaintiff and defendant, and nothing else. Defence of defendant [9] Conversely the defendant had rhymed the following repeatedly in order to refute the claim by plaintiff: • The meeting between Taufik and DW1 did take place; • Taufik had represented to the plaintiff on the additional clause at all material times; • PW1 and PW2 who had testified for the plaintiff were unaware of the said meeting; • By conduct it was alleged, a large segment of the products delivered to the customers of the defendant for which payments were made by the defendant, were in fact weighed in kilogram and not volumetric, as negotiated and borne out by the additional clause. [10] Essentially, it is the case of the defendant that if the charges for courier services are levied based on weight in kilogram, the amount payable would be far less than if it was based on volumetric. Therefore, defendant does not dispute that payment has to be made for courier services rendered but of course for a lesser amount and not the amount claimed by the plaintiff. Ensuing from that, it was contended by the defendant that, claim by plaintiff was erroneous, since the additional clause negotiated and agreed by Taufik as representative of plaintiff and DW1, that the charges for products delivered would be levied based on actual weight in kilogram and not volumetric, was not adhered to by the plaintiff at all material times. It was also argued that a comprehensive and detailed table on the calculations and permutations was not given to the defendant. Reply by plaintiff [11] Bane to this case was that, aside denial of the existence of the purported additional clause, both PW1 as director of the company and PW2 as billing manager were not aware of the meeting and negotiation which had allegedly taken place with their company’s representative Taufik and DW1. Ensuing from that, they had positively testified there was no such additional clause aside P1 which was binding on the defendant. It was stressed and emphasized by PW1 that payment to be made by the defendant for courier services rendered was in fact based on weight of the products to be delivered by the plaintiff, which could be either the actual weight or weight in volumetric, but whichever is the highest pursuant to clause 2.4 of P1. [12] Evidentially, it was contended by the plaintiff that the evidential burden is on the defendant to call Taufik as a witness to prove their defence on a balance of probabilities demonstrating that Taufik agreed with DW1 that charges would be levied based on weight in kilogram and not volumetric, regardless of clause 2.4 to P1. According to the plaintiff, the law applicable is as found in section 103 of the Evidence Act 1950 (EA/Act 56), as the negotiation for the additional clause was independently undertaken by Taufik with DW1 without involving PW1 and PW2. Moreover, on the face of denial by PW1 and PW2 on the existence of an additional clause to P1, it is for the defendant to summon Taufik as a witness to testify on its behalf on the said negotiated and agreed additional clause. On the facts, it is apparent that the plaintiff has put the defendant to notice that it does not know of the negotiation and agreement by Taufik with DW1, for the defendant to call him to refute it and prove its defence on a balance of probabilities. In the absence of Taufik as a witness, the plaintiff was denied of an opportunity to cross-examine him on the additional clause to P1. With that, the trial court was invited to invoke an adverse inference pursuant to section 114 (g) EA for withholding such evidence, which forms the strongest basis of the defence by the defendant, which the trial court did. It was also further argued by the plaintiff that if such an additional clause exists, it ought to be raised with the plaintiff at the earliest point of time and not at the trial of the plaintiff’s claim. Decision by the trial magistrate [13] The trial magistrate had agreed with the plaintiff and had allowed its claim against the defendant with interest and costs. Since the counterclaim by the defendant against plaintiff was not proven, as admitted to by DW1 in his testimony, it was also dismissed with costs. This Appeal [14] In this appeal, the defendant had submitted that the decision by the magistrate was plainly wrong, as he did not consider some salient facts and/or evidence, thus misdirecting himself on the evidence available, justifying appellate intervention. It was the following: • Existence of Taufik as representative of the plaintiff, who had acted on behalf of the plaintiff and negotiated and agreed with DW1 to an additional clause that was not denied. • His name appears on P1. • Witnesses PW1 and PW2 for the plaintiff were not party to the meeting, negotiation and agreement with DW1, thus they were not aware of the additional clause agreed upon. • To that extent, testimony of DW1 prevails, since it was unrebutted by the plaintiff nor evidence to the contrary was adduced by the plaintiff by calling Taufik as a witness. • Albeit, payments made for 9 out of the 12 invoices, charges for it was levied based on weight in kilogram and not volumetric, likewise it has to be for the 3 invoices which are disputed. • Pursuant to the invoices issued, the plaintiff had failed to prove for which of it, payment was based either on weight in kilogram or volumetric. In fact, both PW1 and PW2 were unable to pin-point and distinguish which of the products delivered were charged based on actual weight in kilogram and volumetric. • As to invoice no. 00669130, it was stressed by the defendant that it was not received but yet pleaded in the statement of claim (SOC), as unpaid. • Earlier in October 2018, there was a complaint lodged by defendant to the plaintiff on the invoice issued for the month of August 2018, when it was received and not much later during the trial. To that complaint, one Diana from the plaintiff company had informed its financial department would look into the matter. • The defendant had appealed to the plaintiff vide P8, for reversion of charges based on weight in kilogram and also adhere to the additional clause in P1. • Complaints were also lodged by defendant on the charges levied not in accordance with the additional clause agreed upon via WhatsApp conversation exhibited as D11 and P15, for which the plaintiff is to revert after checking with its Finance Department. • On the law, it was contended by the defendant that Taufik ought to have been called as a witness by the plaintiff and not by them to have the issue in dispute on the additional clause clarified. Findings and conclusion [15] In a nutshell, the following are findings of this court after having perused the appeal record and heard parties to this appeal. • P1 is the binding contract between parties. • There is evidence of system, whereby both plaintiff and defendant carried out their transaction pursuant to P1 without any query raised. In fact, payment due for 9 out of 12 invoices were paid for by the defendant. Incidentally for one of the invoices, payment was made just before issuance of the writ by plaintiff against the defendant. Left are the disputed 3 invoices constituting the claim by plaintiff. • It is only now the defendant had raised the issue on the mode and manner by which charges are levied. Favouring them would be according to the weight of the products to be delivered and not volumetric, as that would be lesser in terms of charges. • Premise is latched on to the purported additional clause negotiated and agreed to by both Taufik who was purportedly representing the plaintiff and DW1 representing the defendant. • The negotiated and agreed additional clause was not culled in writing by parties as in P1. Therefore, it stands at variance between parties, whereby defendant states it exists but vehemently denied by the plaintiff. • In a civil case like the present, proof is proffered vide balance of probabilities. The evidential burden is on the plaintiff to prove its claim pursuant to section 101 EA. Fulfilling so, the plaintiff had afforded proof vide P1 and the ensuing P3 (invoices) and P5 (statement of account), as well as oral testimony of PW1 and PW2. PW1 is not an ordinary official of the company but the director whose decision and testimony binds the company on all fours as opposed to any other official or employee of the company. On the other hand, PW2, who is the billing manager was able to offer proof on the invoices billed to the defendant, in the form of P3 and on an appeal letter P8 from the defendant which was unconnected to the subject matter of the claim by plaintiff. • Therefore, regularity of the transaction is governed by P1 and the system of transaction amongst the plaintiff and defendant was adhered to at all relevant time, with no query raised by defendant until the disputed 3 invoices, became the subject matter of the claim by plaintiff. • On the Invoices which were issued by the plaintiff but had remained unpaid by the defendant was tendered in court as P3. Its statement of account was exhibited as P5. It is a fact that the defendant had utilized the courier services of the plaintiff since 23.4.2018 until the month of March 2019. There were in fact altogether 12 invoices issued, out of which, payment was made for 9 of them, leaving behind 3 as unpaid. As for invoice no. 77523 dated 24.10.2019 for the month of March 2019, payment was made by the defendant on 24.10.2019 after issuance of the writ of summons, thus reducing the claim by plaintiff from RM92,344.46 to RM91,575.76. Both the plaintiff and defendant had entered into P1 willingly and have agreed for the courier service charges of the products of the defendant to be delivered to be determined according to its weight to wit, the actual weight of the products or volumetric weight, but whichever is the highest, as stipulated in paragraph 2.4 of P1. The levy of charges is not plucked from thin air, but levied according to “industry established standards”, as testified by PW1 and not rebutted. Therefore, the representation by the defendant that there was an additional clause stating the charges to be levied would be in accordance with actual weight and not volumetric is irregular and inconsistent with the binding contract P1. In view of the irregularity, the defendant ought to have taken the position to comply with P1 which is binding on them and it cannot now do a turn and cite the Turquand rule, when it knows as a fact that non-compliance with P1 is an irregularity. (See: Pekan Nenas Industries Sdn Bhd v Chan Chin Chuen & Ors (1998) 1 MLJ 465). What more, to rely on the purported additional clause which was negotiated and agreed to by Taufik and DW1 without the knowledge of PW1 and PW2. • As to invoice no. 00669130, which the defendant had alleged not have received it but yet pleaded by the plaintiff to be unpaid in the statement of claim (SOC), it can be gleaned from the admission by DW1 that the defendant owes the plaintiff for invoices issued for the month of August, November and December 2018, and there was already a correction made by PW1 on invoice for the month of August 2018 which is in fact 69130 and not 00669130. Thus, amount invoiced for that amount was due and payable. • Taufik is merely an employee of the plaintiff who had executed P1 on its behalf and according to the defendant, he had allegedly negotiated and agreed with DW1 on the additional mode and manner of levying charges for courier services rendered for delivering products of the defendant without adhering to P1. It is something, which if it is a fact as claimed by the defendant, unknown to the director of the company PW1 and the billing manager PW2, thus side stepping P1 and the system of transaction assimilated by parties for the long period of time when they were dealing with each other. • PW1 and PW2 had denied existence of any additional clause. Thus, binding on parties was P1. To fortify the plaintiff’s stand, PW1 had testified categorically that amendment to P1 would only come in two forms; one is after discussion and upon her approval a new set of proposal would be re-issued. The other is if the amendment is agreed upon, she would handwrite the amendment and initial on it. Therefore, any amendment made would need her endorsement and there was none in the present case. This piece of evidence remained uncontroverted. Pursuant to the testimony of both PW1 and PW2, it is clear and apparent that the only binding contract between the plaintiff and defendant was P1. Therefore, the additional clause as alleged by the defendant purportedly negotiated and agreed upon by Taufik and DW1 was unknown to them, being the officials responsible and acting for and on behalf of the plaintiff. • Despite the onerous claim by the defendant that Taufik had negotiated and agreed to an additional mode of levying charges for the transaction, they had refused to call him as a witness, instead blamed the plaintiff for not calling him to prove the case of the defendant. • Perusing the record of proceeding, it is so apparent that Taufik is not a material witness for the plaintiff, as the plane on which the plaintiff had premised their claim against defendant is on salient contemporaneous documentary proof in the form of P1, P3 and P5. Further, oral testimony of both PW1 and PW2 supports and fortifies their case against the defendant. • The averment on the purported additional clause is not by the plaintiff but the defendant, allegedly negotiated and agreed to by Taufik and DW1. Thus, the evidential burden shifts to the defendant to call Taufik to support its defence of refuting the charges levied by the plaintiff. That exactly is the intent and purport of section 103 EA. As a case proceeds the onus must shift from time to time. The elementary rule in section 101 EA is inflexible and must apply to all cases. Section 102 EA makes it clear that the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to relief, the onus shifts on to the defendant to prove those circumstances, which in the present case, is on the additional clause purportedly negotiated and agreed upon by Taufik and DW1, if any, which would disentitle the plaintiff to the same. (See: Basiruddin v Sahebullan, 32 CWN 160 as well as Sarkar on Evidence, Fifteenth Edition at page 1451). • On the part of the defendant claiming the benefit of estoppel under section 115 EA, there must be mistake or ignorance as to the real state of things. The defendant must show it was ignorant of the truth regarding the representation. When both parties are equally conversant with the true state of facts, it is absurd to refer to the doctrine of estoppel. (See: Sarkar on Evidence, Fifteenth Edition 1999, at page 1768). Pursuant to the record of proceeding, it is so clear as crystal that the defendant was fully aware of the existence of P1 which is binding on them, thus any additional clause purportedly negotiated by DW1 with Taufik holds no water in view of the written contract culled in the form of P1. It cannot too show that it was ignorant of the truth of the representation by Taufik, when it did not endeavour to relate and discuss it with a more responsible official of the plaintiff company, like PW1. There is also no written correspondence to that effect juxtaposing it with P1. On a point of pleading, material facts raising the issue of estoppel under section 115 EA, should be pleaded, unless there is no opportunity to do so. (See: Coppinger v Norton (1902) 2 IR 241, 245). In the present case, there has been so much hype, at least in the written and oral submission by counsel for the defendant at the hearing of this appeal, on the issue of estoppel and in fact it was also raised as an argument when leave was sought from the COA to appeal against the decision of this court, so to say the defendant had no opportunity to do so, would be bizarre and misleading. So, the argument could be since it is not pleaded, the defendant could not rely on it. An interesting observation from this angle is on the onus of proof. The defendant has taken it to the hilt by submitting that the representative of the plaintiff company, one Taufik had represented to them that the charges to be levied would be on the weight of the products to be delivered and not volumetric, and they have been lulled by that representation, despite the existence of P1. They have gone on further to submit both in this court and at the COA during the application for leave proceeding, that the onus or burden of proof is on the plaintiff to call Taufik and prove that there was no such additional clause over and above P1. On this the learned author on Evidence, Sarkar at page 1763 of his fifteenth edition, 1999, has this to say: Onus of proof. – The onus of establishing the fact and circumstances from which estoppel arises rests upon the person pleading it […] To apply the principle of estoppel, there must be allegation and evidence to establish that A made a representation to B acting thereupon B altered his position to his prejudice. [Baburam v Basdeo, 1982 A11 414, 418]. Taking cue from the above, the onus is on the defendant to call Taufik to prove to the court that such representation was made on an additional clause which goes against the grain of P1 and it is not for the plaintiff to undertake their task, especially so when the plaintiff via the testimony of PW1 and PW2 is unaware of such a representation to the defendant, which goes to the core of the business dealing amongst them. • In the absence of evidence to the contrary by the defendant, on a balance of probabilities, claim by the plaintiff becomes more probable and it prevails. The contemporaneous documentary proof in the form of P1, P3 and P5 holds in favour of their claim against the defendant coupled with the system of transaction adhered to by both plaintiff and defendant since the earliest point of inception. • The defendant faces the peril of not proving its defence on a balance of probabilities to refute and negate the claim by plaintiff. It cannot in law, blame the plaintiff for not proving its defence on a balance of probabilities. [16] In sum total, in the absence of evidence to the contrary, the invoices and statement of account issued to the defendant prevails, pursuant to which proof of indebtedness is so evident and clear. (See the case of Cempaka Finance Bhd v Ho Lai Ying (Trading as KH Tdg) & anor (2006) 2 MLJ 685 (FC). Moreover, viewing the commercial relationship between the plaintiff and defendant and the clear proof of indebtedness by the plaintiff, the defendant is not in a position to introduce the existence of an additional clause to contradict P1 by offering oral or documentary proof, via summoning Taufik to testify on their behalf. (See: Perangsang Dagang Sdn Bhd v Tanjong Teras Sdn Bhd & Ors (2008) 2 CLJ 199). [17] In the upshot, when the magistrate allowed the claim by plaintiff and dismissed the unproved counterclaim by defendant, it was not anchored on improper or misdirected finding of fact or law or both, rendering his decision as a trier of fact to be plainly wrong, justifying appellate intervention. I have not discovered any appealable error warranting appellate intervention. On that score, the appeal by the defendant on both the decision by the magistrate to have allowed the claim by plaintiff and dismissing its counterclaim, is dismissed with costs of RM7000 to be paid to the plaintiff. Decision to allow claim by plaintiff and dismiss counterclaim by defendant affirmed. Dated 14 February 2024 SGD Muniandy Kannyappan Judge, High Court. Fozi Addwa together with Arwind Dhanesha of Messrs. Fawwaz & Co, counsel for defendant/appellant. Eu Jin Ong of Messrs. EJ Ong & Partners, counsel for plaintiff/respondent.