Despite the 1st Defendant’s above negligence, the 1 s t Defendant then wrote to the 2nd Defendant stating that the 1st Defendant intended to uplift the said FDR 15 which at that point of time amounted to RM231,393.00 in order to reduce the said Overdraft Facility of RM300,000.00”. 20 [26] Not a single word of “contract”, let alone the breach of it, is stated in the pleading. The appellant blamed his son (2nd Defendant) and sued him for unlawfully authorising the respondent to uplift the FDR. He later withdrew the suit against the son, leaving the respondent as the sole defendant 25 in the suit. [27] It is settled law that parties are bound by their pleadings and are not allowed to adduce facts and issues which they 21 have not pleaded: Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1, State Government of Perak v Muniandy [1986] 1 MLJ 490, Veronica Lee Ah Ling & Ors v Maxisegar Sdn Bhd [2009] 6 CLJ 232. In Lee Ah Chor v Southern Bank Bhd [1991] 1 CLJ Rep 239 it was held that 5 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 by the parties in their pleadings is liable to be set aside: Yew Wan Leong v Lai Kok Kee [1990] 2 MLJ 152. In The Chartered 10 Bank v Yong Chan [1974] 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. 15 [28] Learned counsel for the appellant could not pinpoint to us that breach of contract was also the appellant’s pleaded case against the respondent. He candidly admitted in his written submission that the appellant’s “plea of breach of 20 contract lacked elegance”. Thus the appeal before us is not directly based on the ground that the Court of Appeal erred in 22 disregarding the appellant’s pleaded case based on a breach of contract as that is bound to fail. [29] The appellant’s contention is that evidence of contract between the appellant and the respondent and the breach of 5 it by the latter had been led at trial without objections and as such the Court is duty bound to consider the said evidence. The opposing party is deemed to have waived the requirement that the material facts relating to the contract must be pleaded. In such circumstance there was no 10 element of surprise and prejudice. Learned counsel for the appellant relied on Boustead Trading [1985] Sdn Bhd v Arab Malaysian Bank Bhd [1995] 3 MLJ 331, Perniagaan Kinabalu (S) Sdn Bhd v Sua Ah Yoke & Ham Jon See [2002] MLJ 601, Pekan Nenas Industries Sdn Bhd v Chang 15 Ching Chuen & Ors [1998] 1 MLJ 465 in support of his contention . [30] In Boustead Trading [1985] Sdn Bhd’s case the Federal Court at page 342 ruled that; 20 “Thirdly, where there is no pleaded case of estoppel, but there is let in, without any objection, a body of evidence to support the plea, and argument is directed upon the point, it is the bounden duty of a court to consider the evidence 25 23 and the submissions and came to a decision on the issue. It is no answer, in such circumstances, to say that the point was not pleaded. [31] In Pekan Nenas Industries Sdn Bhd’s case the 5 plaintiffs i.e Chang Ching Chuen & Ors (respondents in the appeal before the Federal Court) brought an action in the High Court against the defendants, seeking inter alia a declaration that the sale of the lands to the purchaser, namely Pekan Nenas Industries Sdn Bhd was null and void. The 10 plaintiffs obtained an injunction to prohibit the sale. The purchaser was allowed to intervene merely for the purpose of setting aside the injunction. The purchaser was not made a party to the suit between the plaintiffs and the defendants. At the trial, the purchaser through its chairman gave evidence 15 without objection that the purchaser was a bona fide purchaser without notice. The High Court allowed the plaintiff’s claim and set aside the sale but it ruled against the purchaser holding that the purchaser/intervenor was not a bona fide purchaser. The Court of Appeal affirmed the 20 decision of the High Court. The defendants did not appeal. But the purchaser appealed to the Federal Court. The respondents contended that the purchaser/intervenor was never a party to the proceedings in the High Court and that 24 the evidence on behalf of the purchaser was not supported by the pleadings. The Federal Court, in response to the contention that the matter was not pleaded, at page 503 said: “No objection was taken to evidence being led on behalf of 5 the intervenor/purchaser and the case was argued both in the High Court and on appeal to the Court of Appeal, as though the intervenor/purchaser was a co-defendant which had filed a pleading and it was on this basis that the case was heard and determined”. 10 [32] Learned counsel for the appellant further stressed the point that evidence given at the trial could, in appropriate circumstance, overcome defects in the pleadings where the net result of such evidence is to prevent the other side from 15 being taken by surprise. One exception to the rule that evidence given at trial without objection could overcome defects of pleading is when such evidence represents a radical departure from the pleadings, and it is not just a variation, modification or development of what has been 20 alleged in the pleading in question: See Perniagaan Kinabalu Sdn Bhd’s case. [33] Learned counsel for the respondent submitted that the law on the question posed by the appellant is settled and had 25 25 been adequately answered by this Court in Superintendent of Lands and Surveys v Hamit B Matusin & Anor [1994] 3 CLJ 567. In that case the respondents (plaintiffs) claimed that they have acquired native customary rights over certain lands by virtue of Sarawak’s Land Code. They sought an 5 injunction to restrain the appellants (defendants) from building on their lands. The defendants in their defence denied that the appellants had acquired native customary rights over the said lands. This defence was just a mere denial without further particulars as to any reason for such mere denial. But 10 at the trial, evidence was given and admitted without objection as to why they denied the respondents claim that they had acquired native customary rights over the said land. One of the reasons was that the lands were within a river bank reserve on which no one can claim any title thereon by 15 virtue of Sarawak’s Land Code. The other reason was that the lands belonged to Sarawak Shell Oil Ltd. [34] It was only in the final submission after the conclusion of all evidence that an objection was raised by the respondents 20 for the first time that such defence were not pleaded. One of the issues which the Supreme Court in that case had to decide was this: 26 “Whether by allowing the appellants to adduce the evidence without any objection until such a late stage and not objecting to the evidence as and when the evidence emerged, the respondent were deemed to have waived the 5 impropriety of admitting such evidence”. [35] The Supreme Court, at page 567 said: “Generally in civil cases only, both parties can 10 validate any mode of adducing evidence by consent, express or inferred, even when such mode is irregular, for any irregularity is deemed to be waived by such consent. Technical rules of evidence can be to a limited extent, even dispensed with by a Court 15 without such consent also, please see Baerlein v Chartered Mercantile Bank [1895] Ch D 488; similarly with technical rules of procedure. Therefore when such evidence represents a departure from pleading, it should be objected to as when and where 20 it is adduced, and it will be too late when it only objected to later on, as in the final submission at the close of evidence as in the instant appeal. In these circumstances, the party facing such evidence at variance from pleading, by failing to object cannot be 25 said to be taken by surprise, prejudiced, misled or embarrassed. Otherwise, the other side of the coin would be, in the event of such objection raised at the stage of final submission being accepted by the Court, that the party adducing such evidence may 30 face the great risk of being denied leave to amend his pleading in question at that stage. Such evidence when given without any objection by the opposing party will further have the effect of 35 curing the absence of such plea in the relevant pleading, in other words, the effect of overcoming such defect in such pleading. As was stated by 27 Federal Court in Ang Koon Kau & Anor v Lau Piang Ngong [1984] 2 MLJ 277, FC at page 278: Evidence given at the trial can therefore in appropriate circumstance overcome defect in the 5 pleadings where the net result of such evidence is to prevent the other side from being taken by surprise. There is however, at least one important exception to such curing of defect of pleading by evidence 10 departing from such pleading without objection then and there to such evidence. The exception is when such evidence represents a radical departure from the pleading, and is not just a 15 variation, modification or development of what has been alleged in the pleading in question, please wee Waghorn v George Wimpey & Co. Ltd [1969] 1 WLR 1764, which was approved by Ang Koon Kau & Anor v Lau Piang Ngong, supra, and John Stein 20 & Co. Ltd v O’Hanlon [1965] AC 890”. [36] The cases cited by both counsel to us clearly show that the law on the first question posed by the appellant is settled. It is this. In a case where the matter or material facts are not 25 pleaded but evidence is led without objections at trial, the court is duty bound to consider such evidence although it may be a departure from the pleading. It has the effect of curing defect in the pleading. In such a case the opposite party is not taken by surprise, prejudiced, embarrassed or misled. 30 The exception is where the evidence represents a radical departure from the pleading and is not just a variation, 28 modification or development of what has been alleged in the pleading. Datuk Hamzah Abdul Majid v Omega Securities Sdn Bhd [2015] 9 CLJ 677 is an illustration of a case where there was a radical departure from the pleading. In that case, loan, which was not a pleaded defence but evidence of 5 it was adduced without objection was rejected as a defence as it was a radical departure from pleading, not just a variation, modification or development of what had been alleged in the pleading. 10 [37] The next question is whether there was evidence led without objections at trial, as contended by learned counsel for the appellant, that the respondent was in breach of contract by uplifting the FDR without the consent of the appellant. This is a question of fact which can only be 15 determined by looking at the evidence. [38] Learned counsel for the appellant did not pinpoint to us where, in the records of appeal that the appellant had led evidence, without objections that the respondent was in 20 breach of contract by uplifting the FDR without his consent. Learned counsel for the respondent contended that there was no such evidence. PW1 or PW2 did not in their evidence 29 allege that the respondent had acted in breach of the terms of the Memorandum of Deposit when it uplifted the FDR without the appellant’s consent. [39] The appellant’s case against the respondent was based 5 on his own evidence (PW1) and his son’s evidence (PW2). We have read PW1’s and PW2’s witnesses statements and their oral testimony before the High Court. We are unable to find any evidence from them alleging that the respondent had breached any term of the Memorandum of Deposit when it 10 uplifted the FDR without the appellant’s consent. The appellant’s claim against the respondent is for the refund of his FDR which was uplifted to settle the outstanding amount in the overdraft account. The monies in the overdraft account were fully untilized due to the respondent’s alleged 15 negligence in honouring the cheque presented by Sallim without it being countersigned by PW2. The appellant explained the nature of his claim in his witness statement as follows: 20 “Q40. So what is your claim today? A. I want the 1st Defendant to refund the monies uplifted on 15.4.1993 amounting to RM233,155.60 and repay the same with interest. Q41. Why? 25 30 A. Because what the 1st Defendant did was unlawful in that: a) They should not have allowed Sallim to draw on the Overdraft Account of the company; and 5 b) They were negligent”. It is patently clear that the claim is not based on a breach of contract. 10 [40] It was contended that no fresh Memorandum of Deposit was executed when the banking facilities were transferred from OKE to the company. Therefore the FDR was never pledged as a security for the overdraft facility of RM300,000 15 which was transferred to the company. But this is contrary to the appellant’s own testimony. He admitted, during cross examination that the Memorandum of Deposit was also transferred to Omar Khayam Enterprises Sdn Bhd. 20 [41] This is what the appellant said in cross examination: “Q: So this is the Memorandum of deposit which you gave for the overdraft facility of RM300,000 is this correct? 25 Yes Was this Memorandum of Deposit also transferred to Omar Khayam Enterprise Sdn Bhd? Yes Do you know that one of the terms of this 30 Memorandum of Deposit is that the bank is at liberty 31 to withdraw from the fixed deposit receipt without reference to you or Raja Iftikar or Omar Khayam Enterprise? No But you sign this agreement? 5 Yes” [42] The appellant cannot plead ignorance and conveniently said that he did not know the terms of the agreement which he signed. Clause 6 of the Memorandum of Deposit 10 expressly states that the respondent is at liberty at any time to withdraw the deposit and to apply the proceeds thereof in or towards the discharge of the appellant’s account without reference to him. 15 [43] The finding of the learned trial judge that the respondent was in breach of the contract in uplifting the Fixed Deposit Receipt without the appellant’s consent was contrary to the clause 6 of the Memorandum of Deposit. It is also against the weight of evidence. The appellant himself admitted that the 20 Memorandum of Deposit was also transferred to the company. It must be noted that the Memorandum of Deposit was signed by the appellant together with his son. The respondent had, before uplifting the FDR, written to the son for approval to uplift the FDR and the son consented to it in 25 writing. The respondent’s letter to the appellant approving the 32 transfer of the banking facilities from OKE to the company was subject to the condition that, “All facilities together with liabilities will be transferred from Omar Khayam Enterprise to Omar Khayam Enterprises Sdn Bhd”. 5 [44] We agree with the contention of learned counsel for the respondent that the first question was framed on the supposition that “evidence is led without objections at trial”. In truth we find that there was no evidence adduced without objections to support the appellant’s contention that the 10 respondent was in breach of the contract, namely, the Memorandum of Deposit by uplifting the FDR without the appellant’s consent. The respondent is clearly at liberty to uplift the FDR without the consent of the appellant by virtue of Clause 6 of the Memorandum of Deposit. 15 [45] For the abovesaid reasons, we do not find it necessary to answer the first question posed to us. In view of our decision with respect to the first question we also do not find it necessary to answer the second question. In our judgment 20 the Court of Appeal did not err in reversing the decision of the High Court on the sole ground that the cause of action in negligence has been abandoned. 33 [46] In the result the appeal is dismissed with costs. Dated this 6th November 2017 5 (A SAMAH NORDIN) Judge of the Federal Court, Malaysia 10 Parties