Jamaludin Bin Mohamad v Ezme Bin Md Radzi (BA-22NCvC-451-10/2025)

EZME BIN MD RADZI [NRIC No.: 730417106009]

TETUAN ROSENIDA, AZLINA, HAFIDZ & CO.…DEFENDANTS GROUNDS OF JUDGEMENT

This judgment addresses the Plaintiff’s claim, who is self-represented, for beneficial interest in a property sold by the 1st Defendant and the 2nd Defendant’s alleged failure to protect his interest by releasing the balance sale price to the 1st Defendant despite being aware of the Plaintiff’s entitlements. The Plaintiff contends that the 2nd Defendant, by virtue of its role as stakeholder and its knowledge of the dispute, had a fiduciary duty 13/03/2026 10:55:35 BA-22NCvC-451-10/2025 Kand. 67 S/N a/ok50Ruf02FpCgbQ6OoYw to withhold the funds and seek court direction, rather than unilaterally releasing them.

There are two applications filed by the Defendants simultaneously to strike out the Plaintiff’s claim, Enclosure 15, (First Defendant’s application) and Enclosure 17, (second Defendant’s application), both pursuant to Order 18 rule 19 (1)(a)(b)(c) and (d) of ROC 2012. The Plaintiff is the stepfather for the 1st Defendant and the 2nd Defendant, a firm of solicitors acting for the 1st Defendant for the Sale and Purchase Agreement dated 19/9/2024, concerning a property, the 2 Storey Bungalow house, located at No 6, Jalan Wawasan Permai 2/5. Kota Warisan, 43900, Sepang Selangor. Family Dispute

The Plaintiff was the married to the 1st Defendant’s mother, Zabedah Binti Mohd Said (deceased). The Plaintiff agreed to furnish the loan agreement to support the mother/wife, as it was regarded as a family home. After the passing of the mother/wife (Zabedah), the 1st Defendant moved out but the Plaintiff subsequently re-married and continued to stay on the said property. S/N a/ok50Ruf02FpCgbQ6OoYw

However, 1st Defendant alleges that the Plaintiff failed to furnish the loan on time and foreclosure proceedings on the said property was forthcoming. The 1st Defendant then had to usurp his savings and restructured the banking facility in order to secure a purchaser. He also had to bear all penalties and late fee charges imposed by the bank. The said property

The said property was initially purchased from Gema Padu Sdn Bhd on 09.07.2004 by the 1st Defendant in which both the Plaintiff and the 1st Defendant took a joint banking facility with Standard Chartered Bank for a total of RM500,000.00. Consequently, the Plaintiff, is the Co-Borrower and 1st Defendant, the registered proprietor of the said property at all material times.

6.

In normal conveyancing practice, the 2nd Defendant, was acting as the stakeholder for the sale proceeds, until the registration of title to the new purchasers were completed. Subsequently the S/N a/ok50Ruf02FpCgbQ6OoYw balance sale price was credited into the 1st Defendant’s bank account on the 25.09.2025. However, the purchasers could not take vacant possession of the property as the Plaintiff had padlocked it, causing inconveniencies to all the parties’ concern. Legal Action and Caveats on the Property.

The Plaintiff had lodged two Caveats on the said property to claim his rights as a beneficial owner. However, both the Caveats were ordered to be removed by the courts through Originating Summons BA24NCvC-1462-07/2025 and BA24NCvC-1881- 08/2025 in favour of the 1st Defendant’s application. This court takes into consideration, of that judgement to remove the Caveats and acknowledges, that all material time, the 1st Defendant had to endeavor all the burden of cost arising out of the said property from unpaid banking installments to legal fees for all actions arising out of the Plaintiff’s claims.

Furthermore, during the course of the Hearing of this application, both the Defendants had informed the court that they are intending to file a suit against the Plaintiff as “a vexatious litigant” who habitually, persistently, and without reasonable grounds initiates legal proceedings, often to harass or annoy the Defendants. Enclosure 4 Interim Injunction application S/N a/ok50Ruf02FpCgbQ6OoYw

The Plaintiff filed in an application for an interim injunction in Enclosure 4 to stop the 1st Defendant from receiving and using the proceeds of sale of the said property. This court dismissed Enclosure 4 with cost as the Plaintiff failed to satisfy the test in the American Cyanamid Co v Ethicon case.

The Plaintiff had failed to show serious issues to be tried and the balance of probabilities is in favor of the Plaintiff. The deciding factor was that the Plaintiff was not the legal owner of the said property and the injunction serves no purpose as the sale was already completed proceeds distributed.

Furthermore, there were preliminary objections from both the Defendants as to the manner in which the application was filed. The intitulements were wrong on face of the application, affidavits were out of time and the Plaintiff had raised additional new issues not raised in the Statement of Claim.

Whether the Plaintiff’s has any beneficial interest as a Co-borrower with the 1st Defendant during the purchase of the said Property;

If the Plaintiff has the beneficial interest, should he have received some of the proceeds of sale from the SPA dated 19.09.2024 S/N a/ok50Ruf02FpCgbQ6OoYw

Does the 2nd Defendant, as a stakeholder, holds the responsibility / fiduciary duty to protect the interest of the Plaintiff, especially when there is a dispute.

There were two applications filed by both the Defendants in Enclosure 15 and Enclosure 17, to strike out the Plaintiff’s Claim pursuant to Order 18 Rule 19(1)(b), (c) or (d) and/or Order 92 Rule 4 of the Rules of Court 2012. The Plaintiff self-represents himself and at the same time failed to comply to the mandatory time period set in ROC 2012 to file some of the pleadings. Preliminary Objections.

Preliminary objections were raised by the Defendants on the following issues: -

(a) Plaintiff’s Affidavit in Reply in Enclosure 23 was out of time and not drafted in the proper form, regardless of the reminder sent by email to the Plaintiff;

(b) Contents of Enclosure 23, contains new issues and facts based on bare averments which were not pleaded in the Statement of Claim by the Plaintiff. S/N a/ok50Ruf02FpCgbQ6OoYw

Under Order 1A of the Rules of Court 2012, courts prioritize justice over technical non-compliance, allowing judges to disregard minor procedural errors to focus on the merits of the case. However, I do agree with the Defendants that even self-represented litigants must follow the ROC 2012 including proper pleadings, admissible evidence, and procedural deadlines.

It would certainly be prejudicial to the Defendants case, especially when the Plaintiff raises new found materials and issues before this court. The 1st Defendant refers to the Federal Court’s case of Samuel Naik Siang Ting v Public Bank Bhd [2015] MLJU 519 which states the following grounds: - “[29] It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded (see: State Government of Perak v Muniandy [1986] 1 MLJ 490; and Anuar bin Mat Amin v Abdullah bin Mohd Zain [1989] 3 MLJ 313). In Blay v Pollard & Morris [1930] 1 KB 628, Scrutton LJ ruled that: “Cases must be decided on the issues on the record; and if it is desired to raise other issues there must be pleaded on the record by amendment.’’ [30] The Supreme Court in Lee Ah Chor v Southern Bank Bhd [1991] 1 MLJ 428, had also emphasized the importance of pleadings and ruled that where a vital issue was not raised S/N a/ok50Ruf02FpCgbQ6OoYw in the pleadings it could not be allowed to be argued and to succeed on appeal (see also Ambank (M) Bhd (yang sebelum ini dikenali sebagai Arab Malaysia Bank Bhd) v Lukman Kamil bin Mohammed Din [2012] MLJ 56 FC). [31] On the same issue, HRH Raja Azlan Shah FJ (as HRH then was) in The Chartered Bank v Yong Chan [1974] MLJ 157, had also pointed out that “as the trial judge had decided on an issue which was not raised in the pleadings, the judgment must be set aside and new trial ordered” (see also: Haji Mohamed Dom v Sakiman [1956] MLJ 45; and Khiaw Aik Heng Co Ltd v Tan Tien Choy [1964] MLJ 99).

Both the Defendants in this case have applied to strike out the Plaintiffs claim, as scandalous, frivolous, vexatious or an abuse of process. This court has the power to do so, on the grounds of abuse of process under Order 18 Rule 19(1)(d) of the ROC 2012 preventing wastage of judicial time.

The legal position on striking out pleadings is provided under Order 18 Rule 19 of the ROC 2012 which reads as follows: - “19. (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that— S/N a/ok50Ruf02FpCgbQ6OoYw

(a) it discloses no reasonable cause of action or defence, as the case may be;

(b) it is scandalous, frivolous or vexatious;

(c) it may prejudice, embarrass or delay the fair trial of the action; or d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

This court would like to adapt the Supreme Courts approach in the of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 that held that: - “(1) The principles upon which the court acts in exercising its power under any of the four limbs of O 18 r 19(1) of the Rules of the High Court 1980 are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule and the summary procedure can only be adopted when it can clearly be seen that a claim or answer is on the face of it ‘obviously unsustainable’…….” S/N a/ok50Ruf02FpCgbQ6OoYw

In the case of Unique Splendid Holdings Sdn Bhd v Tshai Fook Cheung @ Chai Fook Chong & Ors [2021] MLJU 2938 JC ADLIN ABDUL MAJID JC decided that;- [23] The courts have exercised powers to strike out actions pursuant to Order 18 Rule 19 of the Rules of Court 2012 on the basis of the doctrine of res judicata. In Mayban Allied Bhd (formerly known as Phileo Allied Bank (M) Bhd) v Kenneth Godfrey Gomez & Anor [2011] 5 MLJ 219, Ramly Ali JCA (as His Lordship then was) held as follows: “[12] In determining whether a statement of claim discloses a reasonable cause of action or itself constitutes an abuse of process, the state of affairs to which the court must have regard is that which prevailed at the date the action is filed (see Court of Appeal decision in Gasing Heights Sdn Bhd v Aloyah bte Abdul Rahman & Ors [1996] 3 MLJ 259). The court is entitled to look at the history of the case, where there is likelihood of the action being res judicata, to determine if there is a cause of action (see Jamir Hassan v Kang Min [1992] 2 MLJ 46 and Abdul Hamid bin Hj Rahmat & Anor v Development & Commercial Bank Bhd & Anor [1993] 1 MLJ 306). [13] The plea of res judicata applies not only to points which the court was required to form an opinion on but also to every S/N a/ok50Ruf02FpCgbQ6OoYw point in the litigation which the parties could have brought up at the time (see Othman & Anor v Mek [1971] 2 MLJ 214). [14] In addition, the court possesses an inherent jurisdiction to prevent an abuse of its process (see Raja Zainal Abidin bin Raja Haji Tachik & Ors v British-American Life & General Insurance Bhd [1993] 3 MLJ 16 (SC)). The use of the court process must be bona fide. [15] When a matter between two parties has been adjudicated and determined by a court of competent jurisdiction, they and their privies are not permitted to litigate once more the res judicata as the determination or judgment becomes the truth between such parties. An estoppel for rem judicatum has been created as a result (per Peh Swee Chin FCJ in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189). The cause of action estoppel prevents reassertion of a cause of action which has been determined in a final judgment by the same parties in a subsequent proceeding. The court has the inherent jurisdiction to dismiss or strike out an action on the ground of res judicata. [16] In the present case, the statement of claim that was filed by the appellant in the first suit and the statement of claim filed in the second suit asked for the same remedy ie for damages and the refund of the action proceeds. Both S/N a/ok50Ruf02FpCgbQ6OoYw statements of claim in both the first and second suits are in substance identical, resting on the same facts and issues.” (emphasis added) ……. [24] In Sungai Dinar (supra), the Court of Appeal held as follows: “[17] In our judgment, one of the grounds upon which an application under O.18 r 19 of the Rules of Court 2012 can be made is provided in para (1)(b) which states that an action is scandalous, frivolous as vexatious and the most common instance of matters which are struck out on this ground are those which are res judicata (see Malaysian Court Practice, 2007 Desk Ed, Lexis Nexis at p 246).” Plaintiff’s Existence and Joint Borrower Status

The Plaintiff argues that the claim should not be struck out as his action originates from a Constructive Trust and a Resulting Trust. Based on the facts, he is a Co-borrower of the said property and it establishes the Plaintiff’s direct involvement in the acquisition of the Property. Being a joint borrower implies a financial contribution and, consequently, a potential beneficial interest exist.

In my opinion, the legal beneficial interest in a property can be distinguished between a co-borrower and a registered owner. A co-borrower is someone who will be jointly liable for repayment of the loan. It’s well-established principle that the ownership of the S/N a/ok50Ruf02FpCgbQ6OoYw property is determined by whose name(s) appear on the title deed. If the co-borrower’s name is not on the title, they have no proprietary interest in the land. The argument of an existing constructive and resulting trust does not arise based on the above factual narrative. 2nd Defendant’s Role as Stakeholder

The foundation of the Plaintiff’s claim against the 2nd Defendant, is that a stakeholder holds funds on behalf of parties to a transaction, with a duty to disburse them according to agreed terms or, in case of dispute, as directed by a court. This role inherently carries a fiduciary responsibility to protect the interests of all parties involved, especially when there’s a known dispute.

The excuse of following the client’s instruction or the 1st Defendant’s directions does not override the 2nd Defendant’s fiduciary duties as a stakeholder. The 2nd Defendant cannot act unilaterally when the Plaintiff’s rights and interest involve issues of equity and trust.

From the facts of the case, the 2nd Defendant as practicing solicitors, express that the Plaintiff’s claim against them is humiliating, trivial and troublesome since there is no contractual relationship between them to stop any payment made to the 1st Defendant. Furthermore, Section 6 of the SPA dated 19.9.2024 S/N a/ok50Ruf02FpCgbQ6OoYw clearly indicates that the proceeds of sale are to be transferred to the registered owner of the property namely the 1st Defendant, 14 days after the delivery of documents referred in Para 6 of the SPA.

The 2nd Defendant expressly states that contractual relationship only exists, between the 2nd Defendant and the 1st Defendant based on the SPA dated 19.09. 2024.There is no reasonable cause of action pleaded in the statement of claim and no privity of contract or liability issues between 2nd Defendant and the Plaintiff.

In the case of See Thong & Anor v Saw Beng Chong [2013] 3 MLJ 235, the Court of Appeal held, in striking out cases, the judge must be satisfied, that the statement of claim, as it stands, is insufficient. The test to be applied is whether on the face of the statement of claim, the court is prepared to conclude that the cause of action is obviously unsustainable. I would adopt this approach, after considering all the submissions and evidence before me.

Hence, I am in the opinion that the Plaintiff’s case fails on the point of law and Plaintiff does not have locus standi to bring this action against both Defendants as a Co-borrower. The arguments of a constructive and resulting trust is baseless as there is insufficient evidence to substantiate the Plaintiff’s claim before this court. S/N a/ok50Ruf02FpCgbQ6OoYw Moreover, the Plaintiff’s claim fails to disclose a reasonable cause of action and appears to be scandalous, frivolous and vexatious allegations, which constitutes an abuse of the court’s process. In the interest of protecting judicial efficiency and fairness, while ensuring that only claims with a legitimate legal foundation should be entertained the courts, Enclosures 15 and 17 are allowed with cost. Dated : 13 March 2026 sgd SHOBA DORAI RAJAH JUDICIAL COMMISSIONER SHAH ALAM HIGH COURT For the Plaintiff: Jamaludin Bin Mohamad Self-representative Solicitor for the 1st Defendant: Surinjit Kaur A/P Garkar Singh [MESSRS MARSHITA SURIN & ASSOC.] S/N a/ok50Ruf02FpCgbQ6OoYw Solicitor for the 2nd Defendant: Mohammed Hafidz Bin Ghozali [MESSRS ROSENIDA AZLINA HAFIDZ & CO.] S/N a/ok50Ruf02FpCgbQ6OoYw