Empire Holdings Ltd v Ithmaar Development Company Ltd (W-02(IM)(NCC)-441-03/2022)

TURIYA BERHAD - RESPONDENTS IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) CIVIL SUIT NO: WA-22NCC-295-07/2021 BETWEEN EMPIRE HOLDINGS LTD (SEYCHELLES COMPANY) - PLAINTIFF

TURIYA BERHAD - DEFENDANTS CORAM MARIANA BINTI HAJI YAHYA, JCA AZMAN BIN ABDULLAH, JCA AZMI BIN ARIFFIN, JCA JUDGMENT Introduction [1] There are two (2) separate Notices of Appeal filed before this Honourable Court for us to decide. They are as follows: COA : W-02(IM)(NCC)-441-03/2022 HC : WA-22NCC-295-07/2021 Appeal against the decision of the High Court delivered on 18 February 2022 dismissing the Appellant’s application dated 27 December 2021 in Enclosure 194 (Suit 295), for summary disposal pursuant to Order 14A and/or Order 33 Rule 2 of the Rules of Court 2012 with costs of RM30,000.00 to be paid to the 1st Respondent (with 2nd Respondent), 3rd Respondent and 4th Respondent respectively. COA : W02(NCC)(W)-511-03/2023 HC : WA-22NCC-295-07/2021 Appeal against the decision of the High Court delivered on 24 March 2023 dismissing the Appellant’s claim (after full trial) in Enclosure 1 with costs of RM80,000.00 to be paid to 1st Respondent (with 2nd Respondent), 3rd Respondent and 4th Respondent respectively. [2] To facilitate the determination of these two (2) appeals, we find it more convenient to combine and decide both the appeals in a single judgment as they are interrelated. [3] For ease of reference, the parties will be referred to as Plaintiff and 1st, 2nd, 3rd, 4th and 5th Defendants as they were in the High Court. Chronology of Events [4] We shall now briefly lay out the background facts leading to the filing of the claim. [5] The Plaintiff is a foreign company incorporated in the Republic of Seychelles, having its registered address at Abacus (Seychelles) Limited, Mont Fleuri, Mahe, Seychelles and carries on the business of investment holdings and land development. [6] The Plaintiff previously held 66.67% of the ordinary shares in 5th Defendant, a public listed company. [7] On or about 20 April 2008, the Plaintiff and the 1st Defendant entered into a Murabaha Facility Agreement whereby a loan of USD 83,000,000.00 was granted by the 1st Defendant to the Plaintiff. [8] The other party to the Facility Agreement was Shamil Bank of Bahrain B.S.C., which merged with and formed Ithmaar Bank, now known as Ithmaar Bank B.S.C, the 2nd Defendant around 2016. [9] The loan facility was secured by:

share charge dated 20 April 2008 and a charge supplement dated 28 October 2015 of the Plaintiff’s 64.99% shares or equivalent to 148,651,497 of the Plaintiff’s shares. The charge was in favour of the 1st Defendant; and

a personal guarantee executed by Tan Sri Mohan Swami, the sole shareholder in Plaintiff until June 2021. [10] The Facility was to finance Plaintiff’s voluntary take-over offer of 5th Defendant and Chase Perdana Berhad. [11] The Plaintiff and Tan Sri Mohan Swami, however failed to fully repay the outstanding sums of USD99,960,000.00 owed to the 1st Defendant under the Facility Agreement and or the Guarantee as of 15 April 2009, and were in breach of the Facility Agreement, Share Charges and or the Guarantee. [12] As a result of the default, on 15 April 2010, the 1st Defendant commenced a civil suit in London against the Plaintiff and the guarantor for the outstanding sums due and owing under the Facility Agreement (‘UK Suit’). [13] On 5 June 2010, a Settlement Agreement was entered between 1st Defendant, Plaintiff and Tan Sri Mohan Swami whereby Plaintiff and Tan Sri Mohan Swami acknowledged the outstanding sum of USD65,222,911.42 and USD16,075,949.00 and agreed to pay the same fully by 2010 with late payment, compensation charges and costs up to USD150,000.00. The Settlement Agreement also provides for judgment to be entered in the English Commercial Court (‘UK Judgment’). [14] On 7 June 2010 a default judgment was accordingly entered by 1st Defendant in the English Commercial Court against the Plaintiff and Tan Sri Mohan Swami for the sum of USD65,225,120.40 with judgment interest of 8% per annum until date of full payment. [15] Due to their failure to comply with the UK Judgment, the 1st Defendant had on 24 November 2010 registered the UK Judgment at the High Court of Malaya at Kuala Lumpur. [16] Unfortunately, Plaintiff and Tan Sri Mohan Swami failed to pay the June/September 2010 Instalments. [17] Following the said breach of the Settlement Agreement and the UK Judgment, the 1st Defendant registered the UK Judgment entered in at the High Court of Malaya at Kuala Lumpur (‘KLHC Judgment’). [18] Notwithstanding the entry of the UK Judgment and the KLHC Judgment, Plaintiff and Tan Sri Mohan Swami still failed, refused and neglected to repay the outstanding sums. [19] Consequently, on or about 2 March 2016, the 1st Defendant commenced bankruptcy proceedings against Tan Sri Mohan Swami for the sum of USD59,137,636.38 at the High Court of Malaya of Shah Alam vide Bankruptcy No. BA-29NCC-1835- 03/2016. [20] On 13 July 2017, Tan Sri Mohan Swami was adjudged and declared a bankrupt by the Shah Alam High Court. [21] Tan Sri Mohan Swami remains an undischarged bankrupt. [22] In order to realise the long owing outstanding debts, on 22 June 2021, the 1st Defendant then exercised its rights under the Share Charges, to sell and dispose of the Charged Securities/Charged Assets, namely 132,151,497 of the Plaintiff’s shares equivalent to 57.78% of the total issued and paid-up ordinary share capital in 5th Defendant to the 3rd Defendant at RM0.18 per share for the partial recovery of the outstanding sums owed by Plaintiff and Tan Sri Mohan Swami. [23] The 5th Defendant’s shares were sold by the 2nd Defendant to 3rd Defendant pursuant to a Share Sale & Purchase Agreement dated 22 June 2021. [24] Full payment for the 5th Defendant shares has been made by the 3rd Defendant to the 1st Defendant and the 3rd Defendant is now the legally registered owner of the 5th Defendant Shares. [25] As of 22 June 2021, the total amounts overdue and owing by Plaintiff to 1st Defendant under the UK Judgement and or the Facility Agreement remained unpaid is approximately USD84,360,125.64. Plaintiff’s Case [26] In the Writ and Statement of Claim dated 21 July 2021, the Plaintiff pleaded case against the Defendants can be summarised as follows:

that in breach of contract and or duty of care, 1st Defendant and 2nd Defendant had sold the 5th Defendant Shares to 3rd Defendant without notice to the Plaintiff;

that the sale of the 5th Defendant Shares was in breach of contract by way of a ‘representation not to sell shares’ between Abdullah

that in breach of contract and or duty of care, 1st Defendant and 2nd Defendant had sold the 5th Defendant Shares to 3rd Defendant at a gross undervalue;

that the sale of the 5th Defendant Shares was in breach of an alleged agreement between Abdullah Taleb and Tan Sri Mohan Swami to allow Plaintiff the redemption of the Charged Securities;

that the 4th Defendant had acted in conflict of interest and or in breach of his fiduciary duties and had utilised insider information for 3rd Defendant to acquire the 5th Defendant Shares at an undervalue, in breach of the Capital Market & Services Act 2007 under inter alia sections 188 and or 217 and or 317A of the Capital Market & Services Act 2007 and the Malaysian Code on Take-Overs and Mergers 2016.

that by causing the sale of the 5th Defendant Shares to 3rd Defendant at a gross undervalue, 1st, 2nd, 3rd and/or 4th Defendant have wrongfully and unlawfully acted in concert and/or conspired to injure the Plaintiff by lawful and/or unlawful means and/or to oppress and or cause unfair prejudice to the Plaintiff and the minority shareholders of 5th Defendant by unlawful means;

that the 3rd Defendant is not a bona fide purchaser of the 5th Defendant Shares without notice of 1st Defendant’s, 2nd Defendant’s and 4th Defendant’s breach of duty in law. The Action [27] On 3 July 2021, Plaintiff filed High Court Kuala Lumpur Suit No. WA- 22NCC-295-07/2021 (Suit 295), seeking declaratory and injunctive reliefs against the Defendants inter alia to have the sale of shares (132,151,497) in 5th Defendant by the 2nd Defendant (nominee of the 1st Defendant) to the 3rd Defendant pursuant to a Share Sale Agreement declared null, void, invalid and/or rescinded. [28] Plaintiff avers that 1st, 2nd, 3rd and 4th Defendant have wrongfully and unlawfully acted in concert and/or conspired to injure Plaintiff by lawful and/or unlawful means; and/or to oppress and/or cause unfair prejudice to Plaintiff and the minority shareholders of 5th Defendant by unlawful means. Pre-Trial History [29] On 27 September 2021, Plaintiff also files a Notice of Application for an injunction against the Defendants to inter alia restrain completion of the 22 June 2021 Share Sale and Purchase Agreement. [30] On 7 July 2021, an ex-parte injunction was granted in favour of the Plaintiff. Nevertheless, the ex-parte injunction was set aside upon the Court hearing the application inter-parte and awarded costs and damages in favour of the Defendants on 27 September 2021. [31] Aggrieved with the decision, on 1 December 2021, the Plaintiff filed an appeal to the Court of Appeal against the said decision vide Civil Appeal No. W-02(IM)(NCC)-1827-09/2021. The Court of Appeal after hearing the party’s submission dismissed Plaintiff’s appeal with costs. Questions of Law [32] On 27 December 2021, Plaintiff, filed an Order 14A application for the first time, to challenge the 2nd Defendant ‘s power/right/authority to enforce the Share Charge without a full trial of the Plaintiff’s case. The proposed legal questions of law to be determined prior to the trial in Enclosure 194 are as follows: Question 1 Whether in law, the 2nd Defendant who is not the charge, has the legal capacity to rely on the charge dated 20.4.2008 and the supplementary charge dated 28.10.2015, both of which were created by the Plaintiff to the 1st Defendant (“Charge”) and/or enforce the charges by selling the charged shares to the 3rd Defendant? Question 2 Whether in law, due to the failure of the 1st Defendant to register the judgment obtained by the 1st Defendant in the United Kingdom against the Plaintiff (“UK Judgment”) under section 4 of the Reciprocal Enforcement of Judgment Act 1958 has relinquished the 1st Defendant’s right to enforce the charge? Question 3 Whether the failure on the 1st Defendant to enforce the charge since 2010, prohibits the 1st Defendant to enforce the charge in 2021?

Whether in law, the 1st Defendant was time-barred for failing to register the UK Judgment within a period of 6 years from the date of obtaining the UK Judgment? [33] On 29 December 2021, Plaintiff filed a second Notice of Application for Injunction against the Defendants until the disposal of the Order 14A Application. [34] On 18 February 2022, the learned Judicial Commissioner dismissed both the Order 14A Application and the Notice of Application for injunction with costs. Plaintiff has filed an appeal against the decision of the Order 14A Application. Trial History [35] On 15 June 2022 and 16 June 2022, the trial begins with Plaintiff calling five (5) witnesses save for Tan Sri Mohan Swami and Sarin Swami (medical certificate produced on the morning of 15 June 2022 alluding to Tan Sri Mohan Swami having self-admitted at the hospital for back pain on 14 June 2023), the learned Judicial Commissioner fixed 28th – 30th September (“2nd Tranche”) and 28th – 30th November 2023 (“3rd Tranche”) for continued trial. [36] The learned Judicial Commissioner also gives directions that Plaintiff is to have all their witnesses ready at the next date with an Unless Order that in the event Plaintiff fails to produce all their witnesses, Plaintiff is to close their case. [37] On 28 September 2022, 2nd Tranche of the trial commences. Plaintiff’s witness (the valuer, Nagalingam) and Sarin Swami give evidence. At about 5pm, the Plaintiff’s solicitor informs the Court and parties, that Tan Sri Mohan Swami is in London and provides ‘supporting documents’ on this and seeks that the 29th and 30th be vacated and Tan Sri Mohan Swami be allowed to give evidence at the 3rd Tranche of trial in November 2022. [38] Solicitors for the 1st, 2nd, 3rd and 4th Defendant objected to the above request and the learned Judicial Commissioner then invited Plaintiff to have any other witness to give evidence in place of Tan Sri Mohan Swami on 29 September 2022 or 30 September 2022 or to produce Tan Sri Mohan Swami. [39] Following Plaintiff’s solicitor’s declining the Court’s invitation, this Court gives effect to the 16 June 2022 Unless Order effect and directs that Plaintiff’s case be closed. Application to Stay Trial pending the disposal of the Order 14A Appeal and to Reopen Plaintiff’s Case. [40] On 17 November 2022, Plaintiff filed Enclosure 333, applying to stay the trial pending the disposal of the Order 14A Appeal and to reopen Plaintiff’s case. [41] On 29 November 2022, the learned Judicial Commissioner after hearing the submission of Plaintiff’s counsel, dismissed Enclosure 333 with costs. The Defendants’ Case [42] The Defendants case may be summarised as follows:

No breach of contract in the sale of the 5th Defendant Shares;

No legal duty to give any prior notice to the Plaintiff of the sale of the said shares;

The sale of the shares was not grossly undervalued;

No evidence presented by the Plaintiff on the alleged representation between Abdullah Taleb and Tan Sri Mohan on the agreed redemption of the Charged Securities including the 5th Defendant Shares.

The 3rd Defendant purchase of the 5th Defendant Shares was lawful and in accordance with the rules of Bursa Malaysia; and

The 3rd Defendant takeover offer of then remaining shareholders of 5th Defendant is in accordance with the CMSA and the Take-Overs & Mergers Code. [43] On 29 November 2022, the 3rd Tranche of trial commences. [44] Tan Sri Mohan Swami did not appear on the 3rd Tranche dates and Plaintiff chose to close its case without calling any witness. [45] Subsequently, all the Defendants took a common position and make a submission of no case to answer and made the elections not to produce evidence or witnesses. [46] Pursuant to a Consent Order dated 18 April 2024 (Enclosure 34), Plaintiff has withdrawn its appeal against the 3rd, 4th and 5th Defendants without liberty to file afresh and without order as to costs. Hence, this appeal is strictly limited to against the 1st and 2nd Defendants. High Court Findings for Appeal 441 and Appeal 511 [47] The findings for both the appeal were well laid out by the learned trial judge in his grounds of judgment where he concluded inter alia as follows: Appeal 441 (Question of Law) “[17] After reading the parties respective written submissions and hearing the counsel’s oral submission, I have no hesitation in dismissing the Plaintiff’s application on the following grounds:

Learned counsel for the Plaintiff has conceded during oral submissions that there are other issues that needed to be determined by the Court at the trial apart from the 4 Questions. This means that even if the 4 Questions are not determined in favour of the Plaintiff, the matter will still have to proceed to trial to determine the other remaining issues that have been pleaded;

At the time Enclosure 194 is fixed for hearing on 18.02.2022, the trial for the Suit is a less than 4 months away. Even if an order is granted for the 4 Questions to be determined, with the exchanges of affidavits and time given to file parties' respective written submissions and reply submissions, the hearing of Enclosure 194 can optimistically be fixed only sometime in late April or May 2022. This is just less than 6 weeks from the actual trial itself. There is no significant saving of time and costs, more so when there are other issues that needed to be determined at the trial as stated above;

Further, at least in relation to Question 1 which is conceivably determinative of the Suit, this is not even an issue that is pleaded in the Plaintiff's Statement of Claim. Learned counsel for the Plaintiff sought to argue that the Plaintiff did raise this issue in its Reply to the Defence. The learned HCJ observed that the Plaintiff's cause of action is contained and determined from its Statement of Claim and not its Reply;

The Plaintiff is also estopped from changing its position taken at the hearing of the application for the ex parte and inter parte injunction when the then learned counsel for the Plaintiff had conceded that the Plaintiff is not challenging the 2nd Defendanfs legal right to sell the Turiya Shares. The position taken throughout was that the sale was made at a price that is not a fair value for the Turiya Shares which according to the Plaintiff formed a controlling block. It is too late for the Plaintiff to now change its position. Appeal 511 (Plaintiff’s Case After Full Trial) “[72] With the aforesaid principles on the submission of no case to answer and the burden of proof in mind, I will now consider the various legal issues raised. Duty to give reasonable notice of intended sale [73] It is contended that there was a duty owed by IDC and Ithmaar Bank to “give reasonable notice of any intended sale…” prior to the sale of the Charged Securities, that the omission to do so amounted to a breach of the contract by IDC and Ithmaar Bank to EHL. [74] With respect, this contention contradicts the express terms of the security documents executed by EHL itself which provide that IDC and or Ithmaar Bank are entitled to enforce the securities without the requirement for notice to EHL. [75] More specifically, Clause 8.2 of the Share Charges clearly provides that IDC and or Ithmaar Bank, at any time after the security created by the Share Charges shall have become enforceable, shall have power either in its own name or in the name of EHL and without notice to EHL or any other person. [76] Accordingly, as there is no obligation or duty on IDC and or Ithmaar Bank to give notice to EHL prior to sale of the Turiya Shares, it naturally follows that there is no breach of contract for IDC and or Ithmaar Bank in proceeding with the sale without notifying EHL beforehand. [77] Indeed, EHL has not been able to point to any provisions of the Facility Documents in support of its claim. Breach of representation not to sell [78] …EHL claimed that IDC and or Ithmaar Bank had agreed to EHL’s redemption of the Charged Securities including the Turiya Shares by a payment of USD 54 million within 2 weeks upon a token amount being paid immediately. [79] However, there is no evidence adduced either in respect of the representation said to have passed between Abdullah Taleb and TSM between 16.7.2021 and 17.6.2021 (the alleged Representation) as averred to in the pleadings or to support the alleged agreement between Abdullah Taleb and TSM on or about 23.6.2021 (the Alleged Agreement). [80] …TSM had failed to attend at the Trial on the scheduled dates to adduce evidence in respect of such exchanges and accordingly in the absence of any oral or documentary evidence to support the Alleged Representation or the Alleged Agreement, such assertions have not been established by EHL. [81] …TSM was at the material times an undischarged bankrupt which means that unless authorised by the Director General of Insolvency, he was not in a position to represent EHL in any negotiations at all. [83] The evidence of Sarin Swami confirms that there are no minutes of meeting or any resolutions on the transmission of such powers and in any event that TSM was not an officer but only a shareholder of EHL. Turiya Shares sold at an undervalue [92] …There is a distinction between what is considered to be the ‘market value’ and the net asset value stated in Turiya’s Financial Reports. The former only requires reference to the closing market price on the day. However, the Valuation Issue made by EHL extends beyond mere ‘market value’ and requires the determination of what is the ‘fair market value’ for the Turiya Shares taking into account the fact that they constitute a controlling stake in Turiya and that the transaction was a foreclosure sale. Such valuation involves technical issues which the court would require experts’ assistance to make an informed decision. [97] To my mind the valuation of a premium in a ‘controlling stake’ of a listed company fall beyond the “range of common experience or common knowledge” and this requires ‘specialist knowledge’ from the relevant expert. More so when one also takes into consideration the fact that the shares were transacted in the circumstance of a foreclosure. [100] …In this case, there is no expert evidence proffered by the Plaintiff with regard to the valuation of the Turiya Shares. Instead, the only expert evidence before the Court was in the form of EHL’s valuer’s testimony over the valuation of Wisma Chase Perdana Building. Evidence of PW1 [106] …EHL did not tender any evidence in the form of a written report signed by an expert on the valuation of shares of a company quoted and listed on Bursa Malaysia and did not exhibit such written report in an affidavit sworn or affirmed by such an expert. [107] As such, it is the judgment of this Court that the evidence of PW1 and the Valuation Reports are irrelevant to the question of the fair market value of the Turiya Shares. [118] The sale of the Turiya Shares by Ithmaar Bank to MAA was on a willing buyer-willing seller basis on the terms of the Share Sale Agreement and in accordance with Rule 10.09(2) (Mode of Direct Business Transaction) of the Rules of Bursa Malaysia Securities Berhad. [119] The shares of Turiya, which includes Turiya Shares, are listed and quoted on Bursa Malaysia. [121] The sale of the Turiya Shares by Ithmaar Bank to MAA is therefore valid, proper and stands concluded pursuant to a direct business transaction in accordance with the Rules of Bursa Malaysia at the price of RM0.18 each, which is within the acceptable VWAP parameters set by Bursa Malaysia. [149] Without any expert witness testifying that the net asset value of RM0.53 in fact represents the fair market price for the Turiya Shares, in the light of the facts alluded to above, there is simply no basis for this Court to conclude that the sale price of RM 0.18 per Turiya Shares in the present case, transaction on a force sale basis, is grossly undervalue as contended by EHL. [191] EHL claimed that the acquisition of the Turiya Shares by MAA under the Shares Sale Agreement at the price of RM 0.18 per Turiya Shares is not a premium above the market value and therefore is a contravention of the Take-Overs & Mergers Code and section 217 of the CMSA. [193] However, there is no evidence of any ruling from the Securities Commission that MAA has contravened or breached any provision of the Malaysian Code on Take-Overs & Mergers 2016 or the corresponding rules. [198] During examination in chief of PW2, PW2 gave evidence that the Securities Commission vide letter dated 1.6.2022 to Turiya had informed Turiya that Securities Commission have concluded their investigation of the Plaintiff’s complaint in their letter dated 28.1.2022 and 15.2.2022 and Securities Commission had made a finding that EHL complaint to be unsubstantiated and that there is no evidence to support the alleged contravention of the securities laws and listing requirements.” Our Decisions Submission of No Case to Answer [48] It is trite that the effect of a Submission of No Case to Answer invites the Court to hold that Plaintiff's case falls within either one of the two categories which leaves the Defendants with no case to answer. The categories are: -

No case has been established in law by the Plaintiff's [“1st

(ii) The burden of proof has not been discharged [“2nd Limb”] [49] The burden of proof lies on the Plaintiff throughout the trial. The standard of proof required of the Plaintiff is on the balance of probabilities. The evidential burden of proof is only shifted to the other party once that party has discharged its burden of proof (see section 101 of the Evidence Act 1950). [50] In the case of Syarikat Kemajuan Timbermine Sdn Bhd v. Kerajaan Negeri Kelantan Darul Naim [2015] 3 MLJ 609, the Federal Court speaking through Ramly Ali FCJ (as he then was) held as follows: “Whether the plaintiff has met the burden of proof where the defendant elected not to call any witnesses. [56] Learned counsel for the plaintiff argued that the Court of Appeal ought not to disturb findings of fact by the High Court… It was further submitted that the evidence led by the plaintiff must be assumed to be true when the defendant elected not to call any witnesses. On these submissions we have two observations to make. The first is that the principle on which an appellate court could interfere with findings of fact by the trial court is the plainly wrong test (See Gan Yook Chin (P) & Anor v. Lee Ing Chin @ LeeTeck Seng & Ors [2005] 2 MLJ 1 and UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785). And the second is that the burden of proof at all times is of course borne by the plaintiff to establish on the balance of probability the existence of a legally enforceable settlement agreement (See Ranbaxy (Malaysia) Sdn Bhd v. EI Du Pont De Nemours And Co [2011] MLJU 1135; [2011] 1 AMCR 857). In other words, it was upon the plaintiff itself, and certainly not the defendant, to discharge the burden of showing the settlement agreement had come into existence. It is for the plaintiff to prove its case and satisfy the court that its claim is well-founded before the court grants judgment on the claim (See The Fordeco Nos 12 And 17; The Owners Of And All Other Persons Interested In The Ships Fordeco No 12 And Fordeco No 17 v. Shanghai Hai Xing Shipping Co Ltd, The Owners Of The Ship Mv Xin Hua 10 [2000] 1 MLJ 449, Maju Holdings Sdn Bhd v. Fortune Wealth (H-K) Ltd And Other Appeals [2004] 4 MLJ 105 and Teh Swee Lip v. Jademall Holdings Sdn Bhd [2013] 6 MLJ 32). It is true that in the present case the defendant elected not to call any witnesses. However, it is imperative to bear in mind that from the outset the legal burden of the existence of the settlement agreement was with the plaintiff as the claimant in the present action. By reasons of the legal principles, then fact that the defendant led no evidence or call no witnesses did not absolve the plaintiff from discharging its burden in law. In this regard, in adopting the approach of the case of Storey v. Storey [1961] P 63, Suriyadi JCA (as His Lordship then was) in Mohd Nor Afandi bin Mohamed Junus v. Rahman Shah Alang Ibrahim & Anor [2008] 3 MLJ 81; [2008] 2 CLJ 369 recognised this to be the case as can be seen from the following passage of His Lordship’s judgment: There are, however, two sets of circumstances under which a defendant may submit that he has no case to answer. In the one case there may be a submission that, accepting the plaintiff’s evidence at its face value, no case has been established in law, and in the other that the evidence led for the plaintiff is so unsatisfactory or unreliable that the court should find that the burden of proof has not been discharged. [57] We therefore agree with the submission of learned counsel for the defendant to the effect that despite the fact the defendant did not call any witness and that even if the plaintiff’s evidence is unopposed (and therefore presumed to be true), this does not automatically equate to that evidence satisfying the burden of proving the existence of the settlement agreement borne by the plaintiff, or mean that the burden of proving on the balance of probabilities no longer applies, or that a case to answer is automatically made out. The evidence adduced by the plaintiff must still be sufficient to prove the existence of the settlement agreement. This crucial point was overlooked by the learned High Court judge. On the factual matrix of the case, it is patently clear that the plaintiff has not discharged the burden. On this basis, the Court of Appeal was in every respect justified in holding that the learned High Court judge was plainly wrong in making a ruling of law that the settlement agreement had come into existence based on the conduct of both parties. Indeed, the election by the defendant to call no evidence at trial does not preclude the reversal of a plainly wrong findings of the learned High Court judge by the Court of Appeal.” [51] With the aforesaid principles on the submission of no case to answer and the burden of proof in mind, we will now consider the various legal issues raised.

(A) Whether the Unless Order was wrongly enforced [52] The Plaintiff contended that the Unless Order was wrongly enforced because the learned Judicial Commissioner refused to adjourned the trial to allow further subpoena witnesses. [53] We are of the view that despite hearing six (6) witnesses over two

tranches of trial in the KL High Court over the period of 4 days on 15 June 2022, 16 June 2022, 28 September 2022 and 29 November 2022, Plaintiff main witness, one Tan Sri Mohan Swamy failed to make an appearance despite the issuance of an unless order and Plaintiff was ordered to close its case at the end of the 2nd tranche of trial. The 1st and 2nd Defendants then submitted no case to answer and made the elections not to produce evidence or witnesses. [54] The learned Judicial Commissioner’s decision in this regard is justified in light of Plaintiff/Tan Sri Mohan Swamy total disregard of the trial process and failure to give good reasons to justify the witness’s absence. The surrounding circumstances of the case clearly showed that:

Even though the trial dates have been fixed in advanced, Plaintiff's witnesses repeatedly made travel to plans with no regard to the trial.

Plaintiff was not able to substantiate the alleged medical grounds relied on by its witnesses, where the excuse in the first tranche of trial was not accepted by the learned Judicial Commissioner and subsequently Plaintiff's witness’ documents showed travel arrangements being made to clash with the Court dates.

The supporting documents produced by Plaintiff's solicitors confirmed that Tan Sri Mohan Swamy’s application to the Insolvency Office before June 2022, prior to the 1st Tranche of the trial. These documents indicated that Tan Sri Mohan Swamy had planned to travel abroad from August to November 2022 and had already scheduled an appointment with Dr Michael on 29 September 2022. At this time, Tan Sri Mohan Swamy was aware of the trial dates for the 2nd and 3rd Tranches of the trial.

There was no indication that the medical appointment was urgent or necessary.

Such prior appointment was not disclosed to the Court nor the Defendants' solicitors until the day of trial. In our view, the learned Judicial Commissioner has taken into all consideration the absence of Tan Sri Mohan Swamy in the trial and has not erred in his finding on the unless order.

(B) Whether the 2nd Defendant who is not the Chargee has the legal capacity to enforce the charged assets by selling the 5th Defendant Shares to the 3rd Defendant. [55] On or around 1 June 2008 the 1st Defendant and Shamil Bank of Bahrain entered into a Custodian Agreement where ShamiI Bank of Bahrain would hold and administer on behalf of the 1st Defendant the Charged Securities. [56] Concurrent with the Custodian Agreement, Shamil Bank of Bahrain had also appointed Maybank Custody Services as its Custodian Bank, in which a Custody Agreement was entered between Shamil Bank of Bahrain and Maybank on 29 June 2008. [57] Shamil Bank of Bahrain had subsequently transferred all its rights and liabilities under the Facility, the Shamil Bank Custodian Agreement and the Maybank Custodian Agreement to the 2nd Defendant. [58] The Custodian Agreement dated 1 June 2008 was executed between the 1st and 2nd Defendant wherein the 2nd Defendant is authorized by the 1st Defendant to hold, deal and administer the said charged. As such, the 2nd Defendant was at all times clocked with the requisite legal capacity to dispose of the 5th Defendant Shares to 3rd Defendant under the Facility (as governed by inter alia the Facility Agreement and Share Charge Agreement) at any time without notice in the event of breach and/or default of inter-alia the Facility Agreement and/or the Guarantee, which includes the failure by the Plaintiff to pay the outstanding sums owed to the 1st Defendant under or in connection with the Facility Agreement. Hence, such sale of the shares to 3rd Defendant is proper, valid and lawful. [59] The multiple issues pleaded by Plaintiff against all the Defendants relate to unlawful use of insider information by the 4th Defendant, conspiracy to defraud, inducement of breach of contract, breach of sections 188 and 217 of the Capital Markets and Services Act 2007 and the Take-Over and Merger Code 2016. With respect, these causes of action are all targeted at the 'undervalue' sale price for the 5th Defendant Shares and has nothing to do with the 1st and 2nd Defendant right to sell the 5th Defendant Shares [60] In addition, Plaintiff’s pleaded case is limited to an alleged undervalued sale of the 5th Defendant Shares. It is a cardinal rule that parties are bound by their pleadings and are not allowed to adduce facts, issues and submissions on matters which they had not pleaded. Courts have repeatedly held that a decision based on an issue that was not raised by the parties in their pleadings is liable to be set aside. [61] In the case of Joseph Paulus Lantip v. Tnio Chee Chang & Another Appeal [2020] 4 CLJ 79, where the Court of Appeal through the judgment delivered by Mary Lim JCA (as she then was) held as follows: “[28] The role played by pleadings cannot be overstated. It is a fundamental principle of fair play which extends to the court that all parties are bound by their pleadings. It would be most damaging to our administration and system of justice if parties are allowed to plead a certain complaint, lead evidence on another and the court decides on something entirely different. The Federal Court recently reminded and expressed the following view on the importance pf proper pleadings in lftikar Ahmed Khan v. Perwira Affin Bank Bhd [2018] 1 CLJ 415: [29] It is settled law that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded: Samuel Naik Siang Ting v. Public Bank ... In Lee Ah Chor v. Southern Bank Bhd [1991] 1 CLJ 667; [1991] 1 CLJ (Rep) 239 it was held that where a vital issue was not raised in the pleadings, it could not be allowed to be granted and to succeed on appeal. A decision based on an issue which was not raised bv the parties in their pleadings is liable to be set aside: ... In The Chartered Bank v. Yong Chan [1990] 1 CLJ 1113; [1990] 1 CLJ (Rep) 330; [1990] 1 MLJ 157, the Federal Court set aside the judgment of the trial judge as it was decided on an issue not raised on the pleadings. In that case, the trial judge erred in concluding that the pleadings included a claim for breach of contract as well as a claim for libel." [62] In the case of Samuel Naik Siang Ting v. Public Bank Bhd [2015] 6 MLJ 1 the Federal Court held: “(1) Parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded. Where a vital issue is not raised in the pleadings it cannot be allowed to be argued and to succeed on appeal (see para 29); State Government of Perak v Muniandy [1986] 1 MLJ 490; Anuar binMat Amin v Abdullah bin Mohd Zain [1989] 3 MLJ 313; Lee Ah Chor v Southern Bank Bhd [1991] 1 MLJ 428; and The Chartered Bank v Yong Chan [1974} 1 MLJ 157 referred." [63] Moreover, the 2nd Defendant’s right and entitlement to sell the 5th Defendant Shares had already been decided at the inter partes hearing of the Plaintiff’s Application for Interim Injunction (Enclosure 2 in Suit 295) with such findings affirmed by the Court of Appeal following the dismissal of Plaintiff’s Interim Injunction Appeal. [64] It was even conceded by the Plaintiff’s counsel that the 1st and 2nd Defendant had a right to sell the 5th Defendant Shares and that the only issue is whether the sale of the 5th Defendant Shares was sold at an undervalue. To us the matter is thus res judicata and cannot be re-litigated by way of Enclosure 194. [65] In Asia Commercial Finance (M) Bhd v. Kawai Teliti Sdn Bhd [1995] 3 MLJ 189, the Supreme Court through the judgment delivered by Peh Swee Chin FCJ (as he then was) said as follows: “What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that, it is in the public interest that there shoul d be finality in litigation-interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action-nemo debet bis vexari pro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy.” [66] In Serac Asia Sdn Bhd v. Sepakat Insurance Brokers Sdn. Bhd. [2013] 5 MLJ 1, the Federal Court through the judgment delivered by Abdull Hamid Embong FCJ (as he then was) said as follows: “[44] We conclude by saying that once a regularly obtained order or judgment had been perfected, the court was functus officio. The matter, as decided vide encl 6, was thus res judicata and could not be re-litigated. The order made under encl 6 was appealed and affirmed right up to the Federal Court. It could not now be revisited or re-assetted under any guise in a subsequent proceeding. The issues raised by the respondent in encl 29 could have been brought up during the appeal process. The law does not allow the respondent to have a second bite of the cherry and in the manner as it did". [67] Furthermore, the Plaintiff did not even apply for leave to the Federal Court against the Court of Appeal Order dated 1 December 2021. Therefore, Plaintiff has waived its rights to raise issues on the sale of the 5th Defendant Shares. Given this, the Plaintiff is precluded from now revisiting this matter. Hence, we find no merit in this allegation.

(C) Whether there was an alleged agreement via WhatsApp entered into between Tan Sri Mohan Swami and Abdullah Taleb on the redemption of the 5th Shares. [68] The learned counsel for the Plaintiff contended that there was an alleged agreement via WhatsApp entered into between Tan Sri Mohan Swami for and on behalf of the Plaintiff, and Abdullah Taleb, for and on behalf of the 1st and/ or 2nd Defendant, whereby the 1st and/ or 2nd Defendant agree to the redemption of the 5th Defendant Shares and the other Charged Securities, by payment of USD54 million within 2 weeks, and upon a token amount being paid immediately. [69] In this connection, the learned Judicial Commissioner at para 81 of his judgment, had this to say: [81] Furthermore, TSM was at the material times an undischarged bankrupt which means that unless authorised by the Director General of Insolvency, he was in not in a position to represent EHL in any negotiations at all. In this regard, I have in my previous judgment in respect of the Injunction Proceedings addressed this point where I held thus: '[57] ...I must address the common contention by learned counsel for the Defendants regarding TSM's capacity to negotiate with the 1st Defendant. TSM is an undischarged bankrupt and it is not disputed that TSM was not authorized by the Director General of Insolvency under Section 38(1)(d) and 139 of the Insolvency Act '…to directly and indirectly taking part in the management of any company'. [58] Therefore, based on the authorities above and Section 38(1) of the Insolvency Act 1967, TSM, as an undischarged bankrupt, is incompetent and has no legal capacity to enter into any arrangement, contract or agreement on behalf of the Plaintiff with Abdulla Taleb and/or the 1s t Defendant and the 2nd Defendant. [59] Whilst I accept that the 1st Defendant was fully aware of TSM's status as a bankrupt, nevertheless, TSM had no capacity in law to negotiate and to conclude any agreement between the Plaintiff and the 1st Defendant. This was the reason why Abdulla Taleb had requested TSM to procure the Plaintiff's solicitors to write to the 1st Defendant with the Plaintiff's proposal for settlement. This was what led to the letter dated 26.6.2021 from the Plaintiff's solicitors to the 1st Defendant. [60] The contents of the letter however referred expressly to the Whatsapp messages as basis for a 'concluded agreement'. This means that the Plaintiff had relied upon TSM to conclude the contract on its behalf. But this is precisely what TSM could not do as an undischarged bankrupt - to negotiate and conclude a contract on his own and/or on behalf of another. On this ground alone, the Plaintiff's reliance on the existence of the 'agreement' must fail’.” [70] To recap, the High Court and subsequently the Court of Appeal found inter alia that there was no such "WhatsApp Agreement", and therefore, no serious question to be tried, and that in any event damages would be an adequate remedy. [71] The only issue in the High Court proceedings was whether the shares sale was at an undervalue. [72] In our view Enclosure 194 is merely a tactical manoeuvre by the Plaintiff to delay the proceedings and an abuse of process after having been unsuccessful in obtaining interim injunctive relief.

(D) Whether the sale of the 5th Defendant Shares which was sold by the 1st and 2nd Defendant via a Share Sale Agreement at RM0.18 per share, was at an undervalue. [73] The Plaintiff contended that the 1st Defendant did not take reasonable care to sell the 5th Defendant Shares at a true, fair and market value. There was no evidence before the court that prior to the sale of the Charged Shares, either the 1st 2nd and/or 3rd Defendant carried out any valuation to value the shares. The Plaintiff also alleged that the market value of the 5th Defendant Shares ought to be RM0.53 per share as at Dec 2020 and not RM0.18 per share. [74] With the greatest respect, we disagree with the Plaintiff’s contention. The sale of the 5th Defendant Shares from the 2nd Defendant to the 3rd Defendant, was concluded on a willing buyer willing seller basis pursuant to a direct business transaction in accordance with the Rules of Bursa Malaysia, at the price of RM0.18 each per Share, which is within the acceptable Volume Weighted Average Price parameters set by Bursa Malaysia. [75] Plaintiff did not call any expert witness to determine that the net asset value of RM0.53 in fact represents the fair market price for the 5th Defendant Shares, amounts to a failure to discharge its burden of proof and accordingly no case of undervalue is made out. [76] Reference can be made to the case of Syed Abu Bakar Bin Ahmad v. Public Prosecutor [1984] 2 MLJ 19, where the Federal Court through the judgment delivered by Abdul Hamid FCJ (as he then was) held as follows: “There are however cases in which the Court is not in a position to form a correct judgment without help of persons who have acquired special skill or experience on a particular subject, e.g. when the question involved is beyond the range of common experience or common knowledge or when special study of a subject or special training or special experience therein is necessary. In such cases the help of experts is required. In these cases, the rule is relaxed and expert evidence is admitted to enable the court to come to a proper decision." [77] In U Television Sdn Bhd & Anor v. Comintel Sdn Bhd [2017] 5 MLJ 292, the Federal Court in reference to Syed Abu Bakar bin Ahmad v. Public Prosecutor stated as follows: “[45] In the context of the present case we are of the view that expert evidence was required. The plaintiff’s witnesses, namely PW2 and PW3 were witnesses of facts and could not be characterised as experts. It was not, but was found by the learned High Court judge, a question of accepting the testimony of plaintiff’s witnesses PW2 and PW3 and disbelieving the testimony of the defendants’ witnesses, DW1 and DW2, on the issues raised. There being no expert evidence, the learned High Court judge was in no position to make a determination of these technical issues.”

(E) Whether 3rd Defendant is a bona fide purchaser for value of the 5th Defendant Shares. [78] We find that the 3rd Defendant is a bona fide purchaser for value of the 5th Defendant Shares, without notice of any impediment or competing claim to the title to the 5th Defendant Shares. [79] As said, the Plaintiff’s causes of action in the statement of claim are only targeted at the 'undervalue' sale price for the 5th Defendant Shares and not the 1st and 2nd Defendants’ right to sell to the 3rd Defendant. [80] We also find that the Share Sale Agreement between the 2nd Defendant and 3rd Defendant is legally binding, enforceable and valid and that at all material times the 3rd Defendant acted in good faith in the execution of the Share Sale Agreement and the purchase of the 5th Defendant Shares. The 3rd Defendant had conducted its own due diligence regarding the said Shares and obtained the requisite warranties from the 2nd Defendant in the Share Sale Agreement to ensure that the purchase of the shares is lawful. [81] In addition, the 5th Defendant Shares are also listed and quoted on the Main Market of Bursa Malaysia Securities. [82] The 3rd Defendant has paid the purchase price of RM0.18 for each of the 5th Defendant Share. The purchase price of RM23,787,269.46 for the purchase of the 5th Defendant Share, was paid to the 2nd Defendant by the 3rd Defendant on 22 June 2021. The 3rd Defendant is now the legally registered owner of the 5th Defendant Share. [83] In the case of Roziah Binti Ismail v. Johany bin Jaafar & Ors [2018] MLJU 805, Mohamed Zaini Mazlan J (as he then was) made the following finding: “[36] The 2nd Defendant had also conducted a due diligence on the shares pledged. They had also relied on the 1st Defendant’s representations. They had in gist taken all necessary steps. [37] I accept and preferred the evidence of DW3, in that he had merely offered to help PW2, and had never given any representations to recognise the plaintiff's claim on the disputed shares. The minutes of the 2nd Defendan'ts board of directors' meetings also supports the 2nd Defendant's stance that they own the disputed shares, and that they did not recognise the plaintiff's claim on them. [38] The 3rd Defendant too had made the necessary enquiries prior to entering into its agreement with the 2nd Defendant. He had after all paid the full purchase price for the shares free from encumbrance, as set out in the agreement concerned. His transaction was bona fide.”

(F) Whether the sale of the 5th Defendant Shares at RM0.18 per share to the 3rd Respondent on 22 June 2021 is lawful under the Capital Markets and Services Act 2007 and the Malaysian Code on Take-Overs and Mergers 2016?" [84] Plaintiff claimed that the acquisition of the 5th Defendant Shares by the 3rd Defendant under the Share Sale Agreement at the price of RM0.18 per share is not a premium above the market value and therefore is a contravention of the Take-Overs & Mergers Code and section 217 of the Capital Markets and Services Act 2007. [85] Plaintiff also claimed that it is entitled to commence a civil suit to recover its losses under section 357 of the Capital Markets and Services Act 2007 and has become an "Aggrieved Person" who is entitled to apply to Court for an order restraining the 3rd Defendant from dealing in or disposing of the 5th Defendant Shares and an order to restrain the exercise of the voting rights in the 5th Defendant Shares by the 3rd Defendant under section 360 of the said Act. [86] However, we find no evidence of any ruling from the Securities Commission that 3rd Defendant has contravened or breached any provision of the Malaysian Code of Take-Overs and Mergers 2016 or the corresponding rules. [87] In the case Lai Soon Onn v. Chew Fei Meng and other appeals [2019] 2 MLJ 96, Court of Appeal through the judgment delivered by Zabariah Yusof JCA (as she then was) held as follows: “[43] Gleaning through the provisions of the CMSA, it is the intention of the Act that the bodies established under the Act are regulatory bodies and it is not the function of the court to usurp their function nor to second guess their decisions. In R v International Stock Exchange of UK and Ireland Ltd, ex parte Else Ltd [1993] 1 QB 534, Lord Bingham observed that "the court will not second guess the informed judgment of responsible regulators steeped in knowledge of their particular market." This court applied the same principle in Shahidan Shafie (supra) in arriving at its decision when interpreting section 153 of the SCA. To interpret otherwise would result in a situation where there would be two decisions, one of the courts and the other from the SC. That cannot be the position in law (refer to paragraph 29 of Shahidan Shafie (supra). The courts have shown a reluctance to interfere with the decision of regulatory bodies in carrying out its objective in the absence of ma/a fide or acting in excess of jurisdiction. Asimilar stance was taken by this court in Bursa Malaysia Securities Berhad (supra) and also in Khiudin bin Mohd & Anor v Bursa Malaysia Securities Bhd and another application [2012] 6 MLJ 131 which had referred to various commonwealth jurisdictions, which demonstrated the attitude of the courts in reviewing the decision made by the regulators in different jurisdictions. Therefore, it is not within this court's jurisdiction to interfere with the duties mandated to the market regulatory bodies in maintaining and promoting the interests of the public in dealing on the exchange and these bodies should be left to carry out its objective as stipulated under the Act. [44] Therefore, a person who has suffered loss or incurred damage may institute a civil action to recover the amount of the loss or damage after a contravention of any provision or any regulations made under the CMSA has been determined by the SC. It is not necessary tor the courts to adjudicate whether there is a contravention of the Act before section 357

of the CMSA can be applied. All that is required is tor the SC first to determine whether there was a contravention.” [88] In Shahidan bin Shafie v. Atlan Holdings Bhd & Anor [2015] MLJU 1944, the Court of Appeal through the judgment delivered David Wong JCA (as he then was) held as follows: “[27] It is our view that premised on the aforesaid provisions, it can be said that it is the intention of Parliament for the Securities Commission to be tasked to supervise, regulate, issue rulings from time to time and enforce the practices of companies bound by the SC Act 1993 and the Take-Over Code. The learned judge in the High Court in fact found that the only remedy available to the plaintiff was to complain to the Securities Commission about the conduct of the defendants and if the Securities Commission failed to act or makes a ruling unfavourable to the plaintiff, his only option was to apply to the court tor judicial review of the decision of the Securities Commission. In short, the plaintiff's remedy was one of public law. [30] If we were to adopt the interpretation of s. 153 of the SC Act of the plaintiff, it would amount to the court stepping into the shoes of the Securities Commission which is tasked to supervise and regulate the conduct of companies. As we have said earlier, that is not and cannot be the intention of Parliament. Our interpretation reconciles s. 153 with the other provisions in the SC Act and that is the private cause of action for breach of statutory duty is preserved to the extent only after the Securities Commission has made a specific ruling. This would avoid a situation where there would be two decisions, one of the courts and the other the Securities Commission. This scenario would bring uncertainty to the business world which must be avoided. Our interpretation allows only one decision at one time and that is the decision of the Securities Commission until the same is either set aside or substituted by the courts." [89] Accordingly, before a claim under section 357 of the Capital Markets and Services Act 2007 can be filed, there must first be a ruling from the Securities Commission that there is a contravention of the relevant provision or regulations made under the said Act. It is not the duty of the court to usurp the function nor to guess the decisions of the Securities Commission. [90] However, PW2 gave evidence that the Securities Commission had made a finding that Plaintiff complaint lodged by them in their letter dated 28 January 2022 and 15 February 2022 to be unsubstantiated. This had seriously weakened the probative force of the Plaintiff’s case. [91] In the upshot, based on the Court of Appeal cases of Lai Soon Onn v. Chew Fei Meng and other appeals and Shahidan Shafie v. Atlan Holdings Sdn Bhd & Anor, (supra) the learned Judicial Commissioner had correctly held that Plaintiff’s claim founded on the provisions of Capital Markets and Services Act 2007 in this case is unsustainable. We share the same view and fully agree with the decision made by the learned Judicial Commissioner.

(G) Whether in law, the 1st Defendant was time-barred for failing to register the UK Judgment within a period of 6 years from the date of obtaining the UK Judgment? [92] Plaintiff has never pleaded this issue in their Statement of Claim nor do they form part of the Plaintiff’s causes of action against the Defendants. [93] With respect, we find that the 1st Defendant was not time barred for failing to register the UK Judgment. The Reciprocal Enforcement of Judgment Act 1958 will only be applicable in the event a party wishes to take enforcement proceedings of a foreign judgment in Malaysia. Such enforcement proceedings will be in the nature of the usual execution proceedings under Order 45 of the Rules of Court 2012. [94] The Plaintiff is misconceived in raising such a contention. On the facts of the present case, the 1st and/or 2nd Defendants are just exercising their rights under the Share Charge Agreement (e.g. Clauses 3.3, 3.7, 7.1 and 8.2) and the Charge Supplement and not based on the UK Judgment.

(H) Others Related Issues [95] Finally, there are also other ancillary issues submitted in the course of the respective submission by both parties. However, we are not inclined to dwell on any of them. Our views on them would have no effect on our above finding. Conclusion [96] In Dr Yang Xin Ha & Anor v. Dato' Dr Nellie Tan Swee & Ors [2018] MLJU 1180 Abu Bakar Jais J (as he then was) held as follows: “[37] As explained, essentially the Plaintiff have not discharged the burden of proving their case when they closed their case. At that stage the First Defendant is not obliged to bring any evidence to answer the Plaintiffs' case. Therefore, the First Defendant had correctly submitted no case to answer.” [97] Having appraised ourselves of all the above established and entrenched legal principles and the relevant provision of the law, the appeal records, evidence given by the Plaintiff witnesses, written and oral submissions of parties, the grounds of judgment by the learned Judicial Commissioner after full trial, it is our considered views that the Plaintiff has failed to prove the strength of their claim. [98] Consequently, we see no necessity for us to allow parties to ‘revisit’ or make submissions in Appeal 441 as all the issues of law raised in that said appeal had been fully canvassed and deliberated in Appeal No. 511. [99] In the premises, we unanimously find no appealable error in the learned Judicial Commissioner’s decision in dismissing the Plaintiff’s claim. Hence, it leaves no leeway for appellate interference. [100] Plaintiff Civil Appeal No: W02(NCC)(W)-411-03/2022 is dismissed with cost of RM5,000.00 to be paid to the 1st Defendant (with 2nd Defendant) subject to allocatur fees. [101] Plaintiff Civil Appeal No: W02(NCC)(W)-511-03/2023 is dismissed with cost of RM20,000.00 to be paid to the 1st Defendant (with 2nd Defendant) subject to allocatur fees. Date: 27 Sep 2024 - sgd - Azmi bin Ariffin Judge Court of Appeal Malaysia Counsel For the Appellant : 1) So Chien Hao 2) Nabilah Mat Sam [Zailan & Co.] For the Respondents : 1) Sathya Kumardas 2) Koo Yin Soon 3) Mohammed Yin Soon Daud Sulaiman [Shearn Delamore & Co.]