Humaira Ratnadewi Binti Syarifudin v 1. ) Sapiah Binti Hassan (WA-12ANCvC-20-01/2022)

The Sessions Court on 10-01-2022 had allowed the four Respondents’ / 1st, 2nd, 8th and 9th Defendants’ application to strike out the writ under O 18 rule 19 Rules of Court 2012 with costs of RM 2,000. The Appellant / Plaintiff had appealed to me.

I heard the appeal on 13-05-2022 and 24-05-2022.

I dismissed the appeal on 24-05-2022.The Appellant / Plaintiff has now filed an appeal to the Court of Appeal. These are my Grounds of Decision.

Parties will be cited as they were cited at the Sessions Court.

By a letter dated 08-12-2010 the 1st Defendant [as Administrator for the Estate of her late husband] had sold to the Plaintiff [who bought on behalf of her adopted daughter, a minor] a piece of land in Selangor for RM 75,000. [“Land”]. The Land is classified as Malay Reserved Land [see Appeal Record Jilid 2 p 90-91].

The Plaintiff is a Malaysian citizen of Indonesian descent.

The Plaintiff had paid a total sum of RM 45,000 as part-payment for the Land.

The Plaintiff on 06-01-2012 appointed Messrs Zufaidi & Associates as her solicitors. Messrs Zufaidi & Associates are the 3rd to 6th Defendants. The Plaintiff alleged she became aware her adopted daughter is not a “Malay”. So, she used a nominee buyer who is a Malay to hold on trust for her. The Plaintiff pleaded that her solicitor from Messrs Zufaidi & Associates also advised her to use a nominee buyer who is a Malay in the sale and purchase agreement. The solicitor is the 3rd Defendant. The Plaintiff therefore instructed the 3rd Defendant to draft a new sale and purchase agreement between the 1st Defendant as Administrator of the Land and the Plaintiff’s nominee by the name of Julianti binti Dahlan [“Julianti”] [see Statement of Claim at paragraphs 27 – 30].

The 1st Defendant was represented by Messrs Akmar & Co who are the 8th and 9th Defendants in the drafting of the new sale and purchase agreement.

The new sale and purchase agreement between the 1st Defendant as Administrator of the Land and the Plaintiff’s nominee by the name of Mohd Hamdan bin Hamid [later changed to Julianti] was drafted and agreed upon [“SPA”].

This can be seen from letters exchanged from 11-01-2012 to 25-03-2013 between Messrs Zufaidi & Associates and Messrs Akmar & Co [See Appeal Record Jilid 2 at pages 93-97, 99-101, 103-124, 126-151, 153, 155-159, 163-167].

By a letter dated 25-03-2013 Messrs Zufaidi & Associates forwarded to Messrs Akmar & Co for the 1st Defendant’s execution four [4] copies of the SPA prepared by them. [see Appeal Record Jilid 2 at pages 169-170].

By a reply letter dated 16-07-2013 Messrs Akmar & Co sent by courier to Messrs Zufaidi & Associates four [4] copies of the SPA duly signed by the 1st Defendant together with the Consent to Transfer, a certified copy of the 1st Defendant’s identity card and a copy of the Title duly registered under the 1st Defendant’s name. [see Appeal Record pages 215-252].

By a fax and letter dated 15-11-2013 from Messrs Akmar & Co to Messrs Zufaidi & Associates, Messrs Akmar & Co informed Messrs Zufaidi & Associates that their courier could not deliver their letter dated 16-07- 2013 to them as their office was closed. Messrs Akmar & Co also 5 informed them that they tried to call their office from time to time but there was no answer and requested Messrs Zufaidi & Associates to contact them as soon as possible. [see Appeal Record pages 254-255].

A reminder letter dated 10-07-2014 was again faxed and posted by Messrs Akmar & Co to Messrs Zufaidi & Associates. [see Appeal Record pages 257-259].

By letter dated 30-04-2015 from Messrs Akmar & Co to Messrs Zufaidi & Associates, the 1st Defendant terminated the SPA on ground the Purchaser’s nominee failed to execute the SPA and settle the balance purchase price. [see Appeal Record pages 261-263].

By another letter dated 06-08-2015 from Messrs Akmar & Co to Messrs Zufaidi & Associates and Julianti the 1st Defendant terminated the SPA on ground the Plaintiff’s nominee Julianti failed to execute the SPA and settle the balance purchase price. [see Appeal Record pages 266-267].

The Land has since been sold by the 1st Defendant to a person by the name of Muhd Thalhah bin Sukiman on 28-04-2017. This buyer is not a party to this suit.

The Plaintiff filed a suit at the Sessions Court against the 1st Defendant, and the 2nd Defendant [as recipient of the monies, as the son of the 1st Defendant and as a beneficiary of the Estate] for failure to transfer the Land although the Plaintiff was willing to pay the balance purchase price. The Plaintiff also alleged negligence and fraud.

The Plaintiff also sued her solicitors the 3rd to 6th Defendants for negligence as her solicitors. [see Statement of Claim at paragraphs 37, 40 and between paragraph 56 and 57]

It would appear from the Statement of Claim that at a certain stage in the transaction the Plaintiff was not happy with the services of the 3rd to 6th Defendants and replaced them with the 7th Defendant. Unfortunately, the Statement of Claim is bereft of any dates and it is impossible from the Plaintiff’s pleadings or the Plaintiff’s affidavits to 6 ascertain when exactly the Plaintiff sacked the 3rd to 6th Defendants and replaced them with the 7th Defendant. The Plaintiff has now sued her solicitors the 7th Defendant for negligence as her solicitors. [see Statement of Claim at paragraphs 42-49].

The Plaintiff also sued the 8th and 9th Defendants for fraud. [see Statement of Claim at paragraphs 50-56].

The Plaintiff also alleges fraud by all the nine Defendants, although no specific allegation of fraud was pleaded against the 3rd to 6th Defendants. [see Statement of Claim between paragraph 56 and 57].

No particulars of fraud are given in the Statement of Claim. No letter of demand was pleaded in the Statement of Claim. No letter of demand was sent by the Plaintiff or her solicitors Messrs Idris & Partners to any of the Defendants alleging fraud prior to the filing of this suit. If such letters were sent - and there is no such proof or allegation - it has not been pleaded or exhibited in the Plaintiff’s affidavits.

The 8th and 9th Defendants applied on 16-11-2021 to strike out the Writ under O18 r 19 ROC 2012. This was allowed by the Sessions Court. [see GOJ paragraphs 67-81].

The 1st and 2nd Defendants also applied on 18-11-2021 to strike out the Writ under O18 r 19 ROC 2012. This was allowed by the Sessions Court. [see GOJ paragraphs 67-80].

A point to note is that the Sessions Court wrote separate grounds for these two striking out applications but in one Alasan Penghakiman, each Ground of Judgment starting with paragraph 1.

The Plaintiff has appealed to me against both striking out orders by way of a single Notice of Appeal. On the day of the continued hearing of this appeal, the solicitors for the 1st, 2nd, 8th and 9th Defendants raised a preliminary objection asserting that a single Notice of Appeal was defective and renders both appeals incompetent. As this was raised at the last minute, I didn’t entertain any submissions on this issue and proceeded with the merits of both appeals.

I will consider the appeal against the 8th and 9th Defendants first.

The Sessions Court had struck out the suit against the 8th and 9th Defendants on the ground that the Plaintiff has no cause of action as the SPA had been validly terminated by 2 letters from the 8th and 9th Defendants dated 30-04-2015 and 06-08-2015 respectively – sent on behalf of the 1st and 2nd Defendants - due to the failure by the Plaintiff to sign the SPA and pay the balance purchase price as the SPA had long been agreed on 16-07-2013. [see GOJ (68)].

These finding of facts by the Sessions Court are supported by the contemporaneous letters referred to in the Background Facts above.

I note that the Plaintiff had never sent any letters or letter of demand prior to filing of this suit alleging breach of contract by the 1st, 2nd, 8th and 9th Defendants. In the premises, I have no reason to disagree with the finding of facts by the Sessions Court.

The Plaintiff has also pleaded fraud against the 8th and 9th Defendants. This was not dealt with by the Sessions Court in the Grounds of Judgment. I will now consider this plea of fraud.

It behoves a solicitor not to plead fraud against a defendant unless his client has proof. This stricture applies, a fortiori, [a Latin term meaning “from the stronger”] when a solicitor pleads fraud against a fellow solicitor. In this suit, a plea of fraud was levelled against seven solicitors from three different law firms! [see Statement of Claim between paragraphs 56 and 57].

No particulars of fraud are given in the Statement of Claim. No letter of demand was pleaded in the Statement of Claim. No letter of demand was sent by the Plaintiff or her solicitors Messrs Idris & Partners to any of the Defendants alleging fraud prior to the filing of this suit. If such letters were sent - and there is no such proof or allegation - it has not been pleaded or exhibited in the Plaintiff’s affidavits.

The law is clear that if no particulars of fraud are given in the Statement of Claim the suit should be struck out. The obligation to plead particulars of fraud is stated in Order 18 rule 12(1) of the ROC 2012. It reads-Particulars of pleading (O. 18 r. 12)

Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words-

particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; [emphasis added] [37] The Federal court in Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2014] 2 CLJ 445 has set out the obligation to plead particulars of fraud in O 18 r 12 ROC 2012. Jeffrey Tan FCJ [delivering the judgment of the court] said – [24] … In relation to pleadings in general, the rules of court require a pleading of fraud to contain particulars of the fraud on which the party pleading relies (see O. 18 r. 12(1)(a) of the Rules of the High Court 1980, now Rules of Court 2012). “When fraud is alleged it must be specifically pleaded. (The) mere allegation of fraud without showing facts to support it is not a matter to which the court will pay serious attention (Wallingford v. Mutual Society (1880) 5 App Cas 685 at p. 697. The party need not use the word ‘fraud’ if he pleads, in unambiguous language, acts which amount in law to fraud (Myddleton v. Lord Kenyon (1794) 2 Ves 391 at p. 412). Whenever fraud or misrepresentation is alleged in a pleading, or any affidavit, full particulars of the alleged fraud or misrepresentation must be given” (Spenser Bower, Turner and Handley, Actionable Misrepresentation, 4th edn. at pp. 384-385). [25] In Wong Yew Kwan v. Wong Yu Ke & Anor [2010] 2 CLJ 703; [2009] 2 MLJ 672, Gopal Sri Ram JCA, … summarised the law as follows: The defendant alleged that the transfer to the plaintiffs by their father was by way of fraud, but no particulars were pleaded in the statement of defence or the counterclaim, it is trite law that particulars of fraud must not only be pleaded, but must be specifically pleaded. In the High Court case of Malayan Banking Bhd v. Lim Tee Yong [1994] 4 CLJ 558 it was held by the High Court that it is established law that the expression fraud cannot be generally or vaguely pleaded. In Lee Kim Luang v. Lee Shiah Yee [1988] 1 CLJ 619 [1988] 1 CLJ (Rep) 717 the High Court 462 [2014] 2 CLJ Current Law Journal held that a general allegation of fraud is insufficient event to amount to averment of fraud. There is good reason why fraud must be specifically pleaded and required in O. 18 r. 8(1) of the RHC. It is not to take the other party by surprise. In fact Lord Denning MR in Associated Leisure Ltd & Ors v. Associated Newspapers Ltd 2 MLJ 672 at 677 [1970] 2 QB 450 said that ‘it is the duty of the counsel not to put a plea of fraud on the record unless he has clear and sufficient evidence to support it’. [26] The reason for fraud to be pleaded with particulars is because “the word ‘fraud’ does not mean anything more than what is stated. When you plead fraud, the particulars must be pleaded ... mere general allegations of fraud are insufficient to constitute a pleaded case of fraud” (Tenaga Nasional Bhd v. Irham Niaga Sdn Bhd & Anor [2011] 1 CLJ 491; [2011] 1 MLJ 752 per Abdul Malik Ishak JCA) [emphasis added] [38] When the plea of fraud is not supported by particulars, a court can strike out the suit. This was what happened in Cheng Kar Tong v. Yvonne Goh Seen Yee & Ors [2021] 1 LNS 1867 where Abd Majid Haji Tun Hamzah J struck out the Plaintiff’s claim under O18 r19 ROC 2012. Abd Majid Haji Tun Hamzah J relied on the above passage in Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2014] 2 CLJ 445 and said- [18] I agree that that there is no privity of contract between the applicants and the plaintiff and therefore the plaintiff has no cause of action against the applicants. The plaintiff also fails to plead any specific allegation of fraud against the applicants. Therefore Enclosure 19 is allowed with costs. [emphasis added] [39] In my view, the plea of fraud by the Plaintiff against the 8th and 9th Defendants are defective for lacking in particulars, bare and unsubstantiated allegations and frivolous. Illegality [40] A point that was raised in oral submissions before me was illegality. The Plaintiff and her solicitors had deliberately crafted the SPA to use a nominee buyer to evade the law that a Malay holding as defined in the Malay Reservations Enactment [FMS Cap. 142] [“MRE”] can only be sold, charged, leased or transferred to Malays. [41] The concept of Malay Reservation Land was introduced by the British in the Federated Malay States of Perak, Selangor, Negeri Sembilan, and Pahang in 1913 to prevent all lands declared as a Malay holding in these states from being sold, charged, leased or transferred to any person who is a non-Malay. [42] The legislation introduced was the Malay Reservations Enactment 1913. It was replaced by the Malay Reservations Enactment 1933, later amended by FMS En. 8/1934. Under the Statute Law Revision, the Enactment was revised and published in 1935 as the MRE. [43] The long title of the MRE reads “An Enactment to amend and consolidate the law relating to Malay Reservations and to provide for securing to Malays their interests in land.” [44] In the MRE, section 2 states – Interpretation “In this Enactment unless the context otherwise requires- "Malay" means a person belonging to any Malayan race who habitually speaks the Malay language or any Malayan language and professes the Moslem religion; "Malay holding" includes-

any registered interest of a Malay as proprietor or co-proprietor in any alienated land included in a Malay Reservation duly declared and gazetted under the provisions of this Enactment: Provided that no such interest shall be deemed to be a Malay holding until there shall have been registered against the register document of title for such land a requisition in the Form A in the First Schedule as provided in section 6;

any registered interest of a Malay as proprietor or co-proprietor in any alienated land included in a Malay Reservation duly declared and gazetted under the provisions of the Malay Reservations Enactment, 1913; "Malay Reservation" means a Malay Reservation duly declared and gazetted under the provisions of this Enactment or of the Malay Reservations Enactment, 1913; [45] Not all Malay Reservation land is necessarily also a Malay holding. This is the recent decision in Bebe Sakimah bt Mohd Asrof v Pendaftar Hakmilik Negeri Perak [2021] 7 MLJ 701 HC, Su Tiang Joo JC which contains a useful survey of case law on Malay Reservation land. [see also https://www.skrine.com/insights/alerts/april-2021/malay-reservation-land-malay-holding] [46] Section 8 of the MRE states “… no Malay holding shall be transferred, charged or otherwise disposed of to any person who is not a Malay, and no memorandum of transfer, charge or lease in contravention of this section shall be capable of registration in any Land Office or Registry of Titles.” [ emphasis mine] [47] Further, Section 19 of the MRE provides that – 19 Dealings contrary to Enactment void

All dealings or disposals whatsoever and all attempts to deal in or dispose of any Malay holding contrary to the provisions of this Enactment shall be null and void and no rent paid in pursuance of any such dealing disposal or attempts shall be recoverable in any Court.

(ii) No action for breach of contract shall lie in respect of any dealings in or disposal of or any attempt to deal in or dispose of any Malay holding contrary to the provisions of this Enactment. [ emphasis mine] [48] The law used to be that a court will not assist in enforcing a claim tinged with illegality. The law is the same for both statutory illegality and common law illegality. However, for common law illegality this proposition is now subject to what is termed “the trio of considerations” test laid down by Lord Toulson in the majority judgment of the Law Lords of the UK Supreme Court in Patel v Mirza [2016] UKSC 42. [“Patel v Mirza”] [49] Patel v Mirza has been adopted by Malaysian courts. See for example the judgment of Hasan Lah FCJ in Liputan Simfoni Sdn Bhd v Pembangunan Orkid Desa Sdn Bhd [2014] 4 MLJ 142 FC at [117] and [118], Golden Wheel Credit Sdn Bhd v Dato’ Siah Teong Din [2021] 12 MLJ 589 HC Ong Chee Kwan JC and Public Bank Bhd v Ria Realiti Sdn Bhd & Ors [2021] 4 MLJ 537 CA Ravinthran JCA. [50] In my view, the Patel v Mirza “the trio of considerations” test does not apply in our case as ours is a case of statutory illegality. See Mahmood bin Ooyub v Li Chee Loong and another appeal [2020] 6 MLJ 755 CA Lee Swee Seng JCA and Dr HK Fong Brainbuilder Pte Ltd v SG-Maths Sdn Bhd & Ors [2021] 1 MLJ 549 CA Lau Bee Lan JCA. [51] I therefore hold that the Plaintiff’s suit should struck out due to illegality for breach of sections 8 and 19 of the MRE. Appeal against the 1st and 2nd Defendants [52] The Plaintiff had sued the 1st and 2nd Defendants for breach of contract, negligence and fraud. [53] There is no breach of contract or fraud by the 1st and 2nd Defendants for the reasons I have articulated above when I considered the appeal against the 8th and 9th Defendants. [54] There is also no negligence as the 1st and 2nd Defendants owe no duty of care to the Plaintiff in the first place. [55] In any event, the Plaintiffs’ appeal should be dismissed for illegality for the reasons I have set out above. Decision [56] I dismiss the Notice of appeal dated 21-01-2022 filed by the Plaintiff against the Sessions Court order dated 10-01-2022 with costs subject to allocatur. ..........(signed)............ Leong Wai Hong Judicial Commissioner High Court of Malaya Kuala Lumpur (NCVC 10) Dated: 28th June 2022 COUNSEL: 1) Idris bin Md Isa and Muhammad Aliff Shafiq Maskor for the Appellant. (Idris & Partners (Shah Alam)) 2) Nor Akmar Binti Shamsuddin and Dayang Nurfatriah Binti Munir for the Respondents. (Akmar & Co. (Ampang)) LEGISLATION REFERRED TO: 1) Order 18 rule 19 Rules of Court 2012. 2) Order 18 rule 12 Rules of Court 2012. 3) Section 8 of the Malay Reservations Enactment [FMS Cap. 142]. 4) Section 19 of the Malay Reservations Enactment [FMS Cap. 142]. CASES REFERRED TO: 1) Bebe Sakimah bt Mohd Asrof v Pendaftar Hakmilik Negeri Perak [2021] 7 MLJ 701 HC 2) Cheng Kar Tong v. Yvonne Goh Seen Yee & Ors [2021] 1 LNS 1867. 3) Dr HK Fong Brainbuilder Pte Ltd v SG-Maths Sdn Bhd & Ors [2021] 1 MLJ 549 CA. 4) Golden Wheel Credit Sdn Bhd v Dato’ Siah Teong Din [2021] 12 MLJ 589 HC. 5) Liputan Simfoni Sdn Bhd v Pembangunan Orkid Desa Sdn Bhd [2014] 4 MLJ 142 FC. 6) Mahmood bin Ooyub v Li Chee Loong and another appeal [2020] 6 MLJ 755 CA. 7) Patel v Mirza [2016] UKSC 42. 8) Public Bank Bhd v Ria Realiti Sdn Bhd & Ors [2021] 4 MLJ 537. 9) Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2014] 2 CLJ 445.