“Estoppel When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, otherwise than but for that belief he [Type here] would have acted, neither he nor his representative in interest shall be allowed in any suit or proceeding between himself and that person or his representative in interest to deny the truth of that thing.” [ 92 ] Prinsip estopel telah dijelaskan dalam kes Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 3318, dimana Mahkamah Persekutuan telah memutuskan seperti berikut:- “The doctrine of estoppel is a flexible principle by which justice is done according to the circumstances. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. The maxim ‘estoppel may be used as a shield but not a sword’ does not limit the doctrine of estoppel to defendants alone. Plaintiffs too may have recourse to it. Estoppel may assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact which would destroy the cause of action.” [ 93 ] Mahkamah mendapati tindakan D2 yang membuat pembayaran sebahagian telah memberi dorongan kepada Plaintif untuk percaya bahawa D2 telah membayar dan mempunyai pengetahuan tentang transaksi antara Plaintif dan [Type here] NET tersebut, kini D2 diestop daripada berada di posisi yang bertentangan lalu menyatakan beliau tiada pengetahuan berkenaan transaksi antara Plaintif dan NET dan menggunakan pemalsuan sebagai alasan. [ 94 ] Mahkamah dirujuk kepada kes Brenda Wong v Yap Hee Tai [2018] 9 MLJ 63 dimana Mahkamah Tinggi mendapati bahawa Defendan tidak boleh bergantung pada “ignorance of transaction” (transaksi yang berlaku pada akaun bank peribadinya) untuk menyokong dakwaan bahawa tiada penglibatan dalam sesuatu transaksi atau urusan mahupun liabilitinya. “[41] The respondent didn’t deny knowledge that the sum of money had been deposited. But she did not seek to return the money. She also did not deal with the demand letter from the respondent but asked her husband to attend to the matter. I agree that most of this could, to give the respondent the benefit of doubt, be explained by the argument that the husband who is a bankrupt is merely getting his wife to permit use of her bank account. To that extent there may be insufficient evidence to impose liability on the second defendant. [42] Nevertheless, in my assessment, the respondent simply cannot deny knowledge or claim ignorance of the transaction by refusing to offer the evidence to show that the money had been paid out of her [Type here] account to the intended recipient. Or at least to show the money is no longer in the account. In response, the respondent merely said she did not know anything about the transaction and her bank account was managed by the first defendant. This in my view is plainly insufficient. [43] First, there is some doubt as to whether it is true that her husband was operating her bank account. As highlighted by the appellant, there was some contradiction in her testimony during cross-examination. One would expect an account holder to manage his or her own account, in line with the standard bank regulation and the usual terms and conditions on use of account. ….. [44] Secondly, this contention of the respondent given under oath, is not only bold, but also bald. It is entirely unsubstantiated. Despite the evidence that the money did find its way into her own account, she did not, crucially in my view, offer any document to at least corroborate her version that the sum of RM645,000 had been utilised by the first defendant. The version that the sum remained in her account cannot be dismissed. She could have easily dispel that by producing her own bank statement. She conveniently chose not to. [45] The possibilities that it was still in her account, even implying she was indeed closely working, albeit behind [Type here] the scene, with her husband in the transaction with the appellant certainly are far from remote. In other words, despite the appellant having established that the commission sum had been credited into the respondent’s account, the respondent has clearly failed to discharge the burden of showing that the sum had been debited from the account, as alleged by the respondent much less, if true, for what purpose. [46] The is trite that under s 103 of the Evidence Act 1950, if a person requests that the court believes in the existence of a certain fact, the burden of proof of establishing that fact is firmly on that person. He who alleges must prove. In this regard, I should refer to the leading decision of the Court of Appeal in Juahir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor[1996] 3 MLJ 627; [1996] 4 CLJ 1 which reaffirms the rule that ‘he who asserts must prove’, whereby Siti Norma Yaakob JCA (as she then was) instructively held as follows: He who alleges must prove such allegation and the onus is on the appellant to do so. See s 103 of the Act. Thus, it is incumbent upon the appellant to produce Tan Sri Basir as his witness to prove the allegation. The fact that the appellant was unable to secure the attendance of Tan Sri Basir as a witness does not shift the burden to the respondent to produce the witness and testify as to [Type here] what he had uttered, as firstly, the respondent never raised such an allegation and, secondly, has denied even making one. For this very reason, the adverse inference under s 114(g) of the Act relied upon by the appellant cannot be accepted as establishing that if the witness had been produced, his evidence would work against the respondent. There is no obligation in law for the respondent to produce the witness as that obligation rests with the appellant, the party who alleges, and the fact that the appellant was unableo do so is fatal to his case. For this very reason too, the adverse inference unders 114(g) is invoked against the appellant. [47] Thus, otherwise, if the respondent’s contention is accepted, then a defendant could easily and with impunity orchestrate a situation to extricate himself from liability by simply denying any knowledge or involvement in the transaction in dispute without offering any supporting evidence to discharge the evidential burden. That would not be countenanced by the law and is inconsistent with the ends of justice. That situation, like presently, is precisely the reason for the necessity for a party to discharge an evidential burden.” [ 95 ] Berdasarkan kes di atas jelas bahawa D2 dihalang dari segi undang-undang daripada memakai “ignorance of transaction”. Maka, D2 tidak boleh mendakwa ketiadaan [Type here] pengetahuan berkenaan transaksi yang berlaku dalam akaun peribadinya kepada akaun Plaintif mahupun transaksi pembelian, penjualan dan pembekalan barang-barang secara kredit antara Plaintif dan D2. [ 96 ] Mahkamah juga bersetuju dengan hujahan bahawa pembelaan D2 yang berikut adalah secara langsung bersifat terkemudian (“afterthought”) dan tidak bona fide:-