Kenanga Investment Bank Berhad v Swee Joo Berhad & 9 Lagi (Q-02(W)-1277-08/2015)

SWEE JOO BERHAD ... 1ST RESPONDENT (Company No. 431424-H)

SIM SWEE JOO HOLDINGS SDN BHD … 2ND RESPONDENT (Company No. 67574-W)

SIM SWEE JOO SHIPPING SDN BHD … 3RD RESPONDENT (Company No. 41848-K)

YB DATUK ALEXANDER NANTA … 4TH RESPONDENT

ALLISTER HILTON SMITH … 5TH RESPONDENT

GEOFFREY TEO YONG LUAN … 6TH RESPONDENT

SIM MONG HONG (W.N. K.P. No. No. 530103-13-5329) ... 7th RESPONDENT

SIM MONG KHANG (W.N.K.P. No. No. 600406-13-5255) ... 8th RESPONDENT

LO PING YIU (SINGAPORE NRIC No. S2577017Z) … 9th RESPONDENT 2

ASIA BULKERS SDN BHD ... 10th RESPONDENT (Company No. 663950-K) [IN THE MATTER OF SUIT NO. KCH-22-90-2011 IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING] SWEE JOO BERHAD (Company No. 431424-H) Lot 7766 - 7771, Section 64, KTLD Jalan Datuk Abang Abdul Rahim Kuching, Sarawak, Malaysia. ... 1st Plaintiff SIM SWEE JOO HOLDINGS SDN BHD (Company No. 67574-W) 2nd Floor, 45 Main Bazaar, 97000, Bintulu, Sarawak, Malaysia. … 2nd Plaintiff SIM SWEE JOO SHIPPING SDN BHD (Company No. 41848-K) 2nd Floor, 45 Main Bazaar 97000, Bintulu Sarawak, Malaysia. … 3rd Plaintiff YB DATUK ALEXANDER NANTA LINGGI 103-H, ‘Meligai’ Ricketts Estate Maxwell Road 93000 Kuching Sarawak, Malaysia. … 4th Plaintiff ALLISTER HILTON SMITH Lot 149, Lorong 4A Jalan Stampin Timur 93350 Kuching Sarawak, Malaysia. … 5th Plaintiff 3 GEOFFREY TEO YONG LUAN Faith Hill, No. 249, Hui Sing Jaya Jalan Sherip Manshor 93350 Kuching Sarawak, Malaysia. … 6th Plaintiff SIM MONG HONG (W.N. K.P. No. No. 530103-13-5329) No. 760A, Kampung Baru 97000 Bintulu Sarawak, Malaysia. ... 7th Plaintiff SIM MONG KHANG (W.N.K.P. No. No. 600406-13-5255) No. 130, Lot 8506, Lorong 6A 1 Jalan Kempas 93350 Kuching Sarawak, Malaysia. ... 8th Plaintiff LO PING YIU (SINGAPORE NRIC No. S2577017Z) Lot 8738, Lorong Kempas 5 Jalan Kempas 93350 Kuching Sarawak, Malaysia. … 9th Plaintiff ASIA BULKERS SDN BHD (Company No. 663950-K) Lot 7766-7771, Section 64, KTLD Jalan Datuk Abang Abdul Rahim Kuching Sarawak, Malaysia. ... 10th Plaintiff 4 (Company No. 15678-H) 8th Floor, Kenanga International Jalan Sultan Ismail 50250 Kuala Lumpur Selangor, Malaysia. … Defendant HEARD TOGETHER WITH THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. Q-02(W)-1277-08/2015 ... APPELLANT (Company No. 15678-H)

SIM SWEE JOO HOLDINGS SDN BHD … 1ST RESPONDENT (Company No. 67574-W)

SIM SWEE JOO SHIPPING SDN BHD … 2ND RESPONDENT (Company No. 41848-K)

YB DATUK ALEXANDER NANTA … 3RD RESPONDENT

ALLISTER HILTON SMITH … 4TH RESPONDENT

GEOFFREY TEO YONG LUAN … 5TH RESPONDENT 5

SIM MONG HONG (W.N. K.P. No. No. 530103-13-5329) ... 6th RESPONDENT

SIM MONG KHANG (W.N.K.P. No. No. 600406-13-5255) ... 7th RESPONDENT

LO PING YIU (SINGAPORE NRIC No. S2577017Z) … 8th RESPONDENT [IN THE MATTER OF SUIT NO. KCH-22-5/2012 IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING] KENANGA INVESTMENT BANK BERHD ... PLAINTIFF Company No. 15678-H) 8th Floor, Kenanga International Jalan Sultan Ismail 50250 Kuala Lumpur.

SIM SWEE JOO HOLDINGS SDN BHD … 1ST DEFENDANT (Company No. 67574-W) 45, 2nd Floor Main Bazaar 97000 Bintulu, Sarawak.

SIM SWEE JOO SHIPPING SDN BHD … 2ND DEFENDANT (Company No. 41848-K) 45, 2nd Floor Main Bazaar 97000 Bintulu, Sarawak.

YB DATUK ALEXANDER NANTA LINGGI … 3RD DEFENDANT 103H Meligai, Taman Ricketts Jalan Maxwell 93000 Kuching, Sarawak. and/or 6 89 Lorong 2A1A, Green Heights Jalan Airport 93250 Kuching, Sarawak.

ALLISTER HILTON SMITH … 4TH DEFENDANT Lot 103H Meligai, Tamai Ricketts Jalan Maxwell 93000 Kuching, Sarawak.

GEOFFREY TEO YONG LUAN … 5TH DEFENDANT No. 289 Hui Sing Jaya Jalan Sherip Masahor 93350 Kuching, Sarawak.

SIM MONG HONG (W.N. K.P. No. No. 530103-13-5329) ... 6th DEFENDANT No. 760A Kampung Baru 97000 Bintulu, Sarawak.

SIM MONG KHANG ... 7th DEFENDANT (W.N.K.P. No. No. 600406-13-5255) No. 130 Lot 8506, Lorong 6A1 Jalan Kempas 93350 Kuching, Sarawak. and/or Lot 1314, Jalan Meranti Pending Industrial Estate 93450 Kuching, Sarawak.

LO PING YIU … 8th DEFENDANT (SINGAPORE NRIC No. S2577017Z) No. 1113 Lot 8738, Lorong Kempas No. 5 93350 Kuching, Sarawak. 7 Coram: Hamid Sultan bin Abu Backer, JCA Umi Kalthum binti Abdul Majid, JCA Abdul Rahman bin Sebli, JCA Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court) GROUNDS OF JUDGMENT [1] The appellant, a financial institution, appeals against the decision of the learned High Court judge for failing to enter judgment against the respondents for sum exceeding RM120 million with interests and costs. There are two appeals by the appellant. The appeals number read as follows: Q-02(W)-1276-08/2015 (“1276”) and Q-02(W)-1277-08/2015 (“1277”). Even though both the appeals and the voluminous documents on the first instant appear to be complicated, the only issue as framed by the appellant reads as follows: “The Appellant's appeal herein is only based on the finding by the High Court that the Memoranda of Deposits (MODs) were not enforceable as the MODs were not authenticated pursuant to the Power of Attorney Act, 1949. Further details are as set out in the Appellant's said Memorandum of Appeal.” [2] When the appellant demanded payment from the relevant parties, the respondents who are borrowers (1st respondent), share chargors (2nd to 9th respondents) and one Asia Bulkers Sdn Bhd (10th respondent) filed a suit No. KCH-22-90-2011 (Appeal ‘1276’) basically to deny the appellant’s payment claimed. The declaratory prayers claimed by the respondents read as follows: 8 “1. An Injunction that pending the final disposal of this Action, the Defendants, by their servants and/or agents, be restrained from taking any action, whether legal action or otherwise against the 2nd to 9th Plaintiffs or any of them or any combination of them allegedly with respect to or arising from CLAUSE 9, namely for the balance of the amount(s) that may be owed by SJB under the FACILITIES AGREEMENT;

An Order that the Memoranda of Deposit be set aside and/or be declared null and void as being:

made by forged signalure(s); and/or 2. made by tampering with the documents with inserted Pages, Clauses and/or the CLAUSE 9; and/or 31. procured by misrepresentation and rescinded or trickery; and/or

made under a mutual and/or unilateral mistake; and/or made without authority; and/or 3.

A Declaration that the purport of the CLAUSE 9 where it states "the Chargor undertake to pay the Bank immediately on demand any balance which may then be due" referred to in CLAUSE 9 does not refer to the balance of the amount(s) that may be owed by SJB under the FACILITIES

A Declaration that the purport of the CLAUSE 9 where it states "the Chargor undertake to pay the Bank immediately on demand any balance which may then be due" in CLAUSE 9 refers to indebtedness of the Chargor to the Bank for amounts due under the terms of the Memorandum of Deposit, such under Clause 13(a) where the Chargor defaults in making payment(s) due on the Securities and the Bank chooses to make these payment(s) due on the Securities on behalf of the Chargor. 9

A Declaration that the purport of the CLAUSE 9 in so far as it purports to create an obligation on the part of the Chargor (2nd to 9th Plaintiff) to pay the balance of the amount(s) that may be owed by SJB under the FACILITIES AGREEMENT is valid or operational only where the Chargor (2nd to 9th Plaintiff) have independently of Memorandum of Deposit undertaken to be responsible for the same, example by a Guarantee.

A Declaration that, on its true construction. Clause 9 of does not impose personal liability on the Chargor for the indebtedness.

An Order that the CLAUSE 9 in so far as it purports to create an obligation on the part of the Chargor (2nd to 9th Plaintiff) to pay the balance of the amount(s) that may be owed by SJB under the FACILITIES AGREEMENT be set aside and/or be declared null and void as being:

procured by misrepresentation or trickery and rescinded;

made by tampering with the documents with inserted Pages, Clauses and/or the CLAUSE 9; and/or,

made by mistake and/or made without consideration; and/or,

made without authority.

An Order that the MEMORANDA OF DEPOSIT be rectified to remove such part of CLAUSE 9, namely " In the events that the net proceeds of such sale actually received by the Bank shall be insufficient to cover the whole of the Indebtedness to the Bank and whether at such sale the Bank is the purchaser or otherwise, the Chargor undertake to pay the Bank immediately on demand any balance which may then be due and until payment shall pay to the Bank interest thereon at the rate prescribed by the Bank as well after as before any judgment and notwithstanding that either/both the Borrower and/or Chargor cease to be the Bank's client/clients." or such other parts that purports to create an obligation on the part of the Chargor (2nd to 9th Plaintiff) to pay the balance of the amount(s) that may be owed by SJB under 10 the FACILITIES AGREEMENT and/or by inserting the words "from the Chargor" after the words "which may then be due".

A Declaration or Order that the Defendant is estopped from relying upon the Memoranda of Deposit and/or Clause 9 and/or from asserting personal liability on the part of the Second to Ninth Plaintiffs for the indebtedness. AND the 1st to 10th Plaintiffs claim against the Defendant the following:

An Order that KENANGA proceed to sell the 2 Vessels, namely Asia Victory and Asia Success.

An Injunction that pending the sale of the 2 Vessels, namely Asia Victory and Asia Success, the Defendants, by their servants and/or agents, be restrained from taking any action, whether legal action or otherwise against the 1st to 10th Plaintiffs or any of them or any combination of them allegedly with respect to or arising from any Indebtedness due under the FACILITIES AGREEMENT;

An Order that KENANGA proceed to sell the shares of SJB pledged to it as security.

An Injunction that pending the sale of the shares of SJB pledged to it as security, the Defendants, by their servants and/or agents, be restrained from taking any action, whether legal action or otherwise against the 1st to 10th Plaintiffs or any of them or any combination of them allegedly with respect to or arising from any Indebtedness due under the FACILITIES AGREEMENT;

General and Punitive Damages;

Interest on such Damages payable;

Costs of this Action; 11

Such further direction for trial of the matter;

Any such further or other relief as this Honourable Court deem fit and proper.” [3] The only prayer the court granted was prayer 7A, that too on a narrow compass in respect of the Power of Attorney Act 1949 (PAA 1949) as stated earlier. The respondents did not appeal on all other prayers thereby they have accepted the finding of facts of all other issues related to their prayers. In simple terms, their allegation of misrepresentation, mistake made without authority, etc. and allegation on clause 9 of the Memoranda of Deposit, were all misconceived propositions and the relevant documents were found to be voluntarily executed by the respondents with full knowledge of the terms as well as the consequence of its breach. [4] The appellant had filed a separate action for recovery against the share chargors only (2nd to 9th respondents in suit 1276) in suit no. KCH- 22-5/1-2012 (appeal No. ‘1277) and the prayers read as follows: “38. Wherefore, the Plaintiff claims against the 1st to 8th Defendants and each of them for the following:

(a) RM124,536,136.89 due as at 18.11.2011 with interest thereon at the rate of 3.5% per annum above the Plaintiffs Cost of Funds, compounded monthly, from 19.11.2011 to date of full settlement;

(b) costs on solicitors-client basis; and

(c) such further or other relief as this Honourable Court deems fit.” 12 [5] It is also important to note that the appellant had filed a counterclaim in the respondents’ suit (appeal No. ‘1276’) to seek the shortfall. The prayers in the appellant’s counterclaim read as follows: “45. Wherefore the Defendant claims against the Plaintiffs and each and everyone of them for the following:

That is to say that the respondents cannot question the finding of facts or law on other issues as they have not appealed. If we are not in 13 agreement with the learned judge on prayer 7A, then on the facts, evidence and the law, judgment has to be entered for the appellant. And judgment in our view should be related to the appellant’s claim in ‘1277’ as it is related to contractual claims and the appeal in ‘1276’ is not related to contractual claim per se and the learned trial judge did not allow the counterclaim and/or made findings in favour of some parts of the counterclaim as pleaded. Amended Cross-Appeal and Striking Out [8] The respondents in both appeals have filed an amended notice of cross-appeal. The appellant has filed two notices of motion to strike out the amended cross-appeal. [9] Enclosure 28(a) was filed, to strike out the amended notice of cross-appeal in appeal No. ‘1276’, in reliance of the case of Kabushiki Kaisha Ngu v Leisure Farm Corp Sdn Bhd & Ors [2016] 5 MLJ 559 (Leisure Farm). The appellant is only appealing against part of the decision of the court in dismissing the appellant’s counterclaim. The central complaint is related to prayer 7A only, as the appellant had preserved their rights to the contractual claim in appeal No. ‘1277’, basically appeal No. ‘1276’ is to avoid technicality to preserve the appeal in ‘1277’. The technicality being the issue related to prayer 7A to deny the respondents to argue that the appellant did not challenge the decision related to the counterclaim as well as the issue related to prayer 7A. 14 [10] Enclosure 25(a) is in respect of appeal No. ‘1277’, i.e. to strike out the amended cross-appeal of the respondents in reliance of the case of Leisure Farm. In appeal No. ‘1277’, the appellant is only appealing against part of the court’s decision which dismissed the appellant’s suit only on the ground that the court had granted prayer 7A in respect of the respondents suit and also on the issue of costs. [11] In short, both the enclosures and the grounds are identical. The appellant concedes that they have made a previous attempt to strike out the cross-appeal and that was not allowed by the Court of Appeal and in addition the Court of Appeal allowed the cross-appeal to be amended. The reason for striking out the cross-appeal as per the submission was based on the fact that the cross-appeal was incompetent because it was not in compliance with the Rules of the Court of Appeal, 1994 (RCA 1994) inter alia for the following reasons:

(a) the matters raised by the Respondents in their cross-appeal are not related to the subject matter of the Appellant's appeal herein; and

(b) that the Respondents' cross-appeal appeared to be a prolix and convoluted written submission, wherein the grounds of appeal were not concise and as such, it was difficult for the Appellant to answer the Respondents' cross-appeal. [12] The Court of Appeal did not give grounds for refusing the motions to strike out the appeal and the Federal Court did not give leave to appeal against the motions and the appellant says the grounds were as per the supporting affidavit which read as follows: 15 “I am advised by the Appellant's solicitors and verily believe that the Federal Court's main grounds for dismissing the said leave application were as follows:

(a) The Appellant's Setting Aside Application was considered to be an interlocutory application, as the Appellant's main appeal was still pending disposal before the Court of Appeal.

(b) The Federal Court had already ruled in Kabushiki Kaisha Ngu v Leisure Farm Corporation Sdn Bhd & ors [2016] 5 MLJ 557 that matters in a cross-appeal must be related to the matters raised in the main appeal.

On 8.2.2017, the Federal Court indicated to the Appellant that it could still proceed to raise the Federal Court's decision in the Leisure Farm case to the Court of Appeal, as the Federal Court decision was not available when the Court of Appeal decision of 22.4.2016 was made.” [13] The grounds for both the striking out applications reads as follows: “36. I am advised by the Appellant's solicitors and verily believe that the Respondents' Amended Cross-Appeal is still incompetent and still not in compliance with the Rules of the Court of Appeal, 1994 and with the principles set out by the Federal Court in the Leisure Farm case, and I further state that:

(a) The matters raised by the Respondents in their Amended Cross-Appeal are not related to the subject matter of the Appellant's appeal herein.

(b) The Appellant's appeal herein is only based on the finding by the High Court that the MODs were not enforceable as the MODs were not authenticated pursuant to the Power of Attorney Act, 16

Further details are as set out in the Appellant's said Memorandum of Appeal.

(c) In this regard, I am advised by the Appellant's solicitors and verily believe that the subject matter of the Respondents' Amended Cross-Appeal (which included numerous other issues including whether the MODs imposed any personal liability on the Share Chargors) have already been rejected by the High Court and are unrelated to the issues raised in the Appellant's appeal herein.

(d) By their Amended Cross-Appeal, the Respondents are effectively pursuing their reliefs and prayers as claimed in their Amended Statement of Claim, which were not allowed by the learned High Court Judge but in respect of which there was no appeal filed by the Respondents.

(e) The Respondents' Amended Cross-Appeal still appears to be a convoluted written submission. The Respondent's grounds of appeal are still not concise and it is difficult for the Appellant to answer the Respondents' Amended Cross-Appeal.” [14] The Memorandum of Appeal in appeal No. ‘1276’ which is, more or less, identical to appeal No. ‘1277’ reads as follows: “1. The learned Judge erred in allowing the Respondents' claim in terms of prayer 7A of the Re-Amended Writ of Summons and Amended Statement of Claim, and in dismissing the Appellant's counterclaim.

Having found that each of the 2nd to 9th Respondents ("the Share Chargors") did execute the Memoranda of deposit of shares and other securities ("the MODs") and that the MODs were properly returned to the Appellant's solicitors, the learned Judge erred in fact and in law: 17

(a) in failing to hold that the MODs, including Clause 9 therein, are valid and enforceable by the Appellant against the Share Chargors;

(b) in failing to hold that the Share Chargors, having defaulted in their debt obligations to the Appellant under the said Clause 9 of their MODs are indebted to the Appellant; and

(c) in failing to dismiss the Respondents action, and in not allowing the Appellant's counterclaim.

The learned Judge erred in fact and in law:

(a) in holding that the MODs were required to be authenticated pursuant to the Power of Attorney Act, 1949 and that section 68 of the Evidence Act, 1950 was applicable to the MODs;

(b) in failing to consider that the terms of the MODs, including the said Clause 9, are separate and distinct from the provisions therein relating to the granting of a Power of Attorney ("the PA Clause") to the Appellant;

(c) in considering that the validity and enforceability of the MODs, including the said Clause 9 therein, was dependent on the validity of the PA Clause;

(d) in failing to consider that with the finding of fact that the Share Chargors had all executed the MODs, the attestation of the Commissioner for Oaths of their signatures is irrelevant, and the MODs are fully enforceable against the Share Chargors;

(e) in holding that the Appellant was estopped from relying upon the MODs, including the said Clause 9 thereof. 18

The learned Judge erred in fact and in law in holding that the Appellant bore the burden; and had failed to discharge such burden, to prove that the MODs and/or the PA Clause were duly authenticated pursuant to the Power of Attorney Act, 1949, as:

(a) the allegation that the MODs were not attested by the Commissioner for Oaths was made by the Share Chargors; and

(b) the burden was thus upon the Share Charges for them to discharge by proving that the Commissioner for Oaths did not attest the Share Chargors' signatures, as alleged.

The learned Judge erred in fact and in law in failing to hold, in any event, that the PA Clause is severable from the rest of the terms of the MODs and that it would not affect the validity and enforceability of the other clauses in the MODs, including the said Clause 9.

The learned Judge erred in holding the view that the terms in the MODs were never subjected to negotiation, as the draft MODs had been sent to the Respondents' agent or representative, one Sangeetha a/p Mohan (PW14) (also known as Andrea) for approval prior to execution of the same.

With regard to the Appellant's counterclaim for misrepresentations by the Respondents, the learned Judge erred in fact and in law:

(a) in holding that since the MODs were already executed, the Respondents did not make any misrepresentation to the Appellant; and

(b) in failing to hold that the Respondents' representations in the MODs have led the Appellant into agreeing to and thereafter executing the agreements for the restructuring of the Term Loan of RM120,000,000.00. 19

The learned Judge had erred in fact and in law by failing to hold that the Respondents have defamed the Appellant.

In view of the findings of fact made against the Respondents, the learned Judge erred in fact and in law in failing to hold that the action commenced by the Respondents against the Appellant was an abuse of court's process.

The learned Judge erred in fact and in law in not ordering costs of the action be paid by the Respondents to the Appellant, but had instead ordered that such costs be satisfied by the purchase price of the charged shares bought by the Appellant.” [15] The Amended notice of cross-appeal in appeal No. ‘1276’ reads as follows: “AMENDED Notice of Cross-Appeal (Rule 8 of the Rules of the Court of Appeal 1994) Take notice, that on the hearing of the above appeal, the 1st to 10th Respondents/1st to 10th Plaintiffs above-named, will contend that the decision of the Honourable Justice Dato' Rhodzariah Bt. Bujang given at Kuching on the 8th day of July, 2015 ought to be varied to the extent and on the grounds hereinafter set out that does not detract from its findings allowing the claims of the 1st to 10th Plaintiffs/1st to 10th Respondents in part in terms of Prayer 7 A on the basis that the Appellants failed to prove attestation, authentication and execution of all the Memoranda under the law:

The learned trial Judge having made the Interlocutory Ruling of 26/9/2011 on the Legal Construction of Clause 9 (not reversed on any appeal) and finding clearly that Clause 9 of the Memoranda "does not amount to a promise to be responsible for the liability of Swee Joo Berhad in the event of their default under the bridging loan" and that 20 "it is only an agreement to pay for the shortfall that arises from the sale of the pledged shares", ought to have adopted the said ruling in her final Grounds of Judgment, and hold that based on such Legal Construction of Clause 9 of the Memoranda, the claims of the 1st to 10th Plaintiffs in terms of Prayers 5A of the Re-Amended Statement of Claim ought to be allowed:

1.1 The learned Trial Judge ought on a true and proper Construction of Clause 9, 13 and 6 of the Memoranda, hold that Clause 9 does not impose personal liability on 4th to the 9th Respondents.

The learned trial judge having found in her Grounds of Judgment that "Regardless of that prior dealing or how innocuous maybe the insertion of the three pages of the memoranda it still smacks of bad practice for the taking of so much liberty with a document which the witness knew had already been attested and by which act, the witness has given some of the share pledgers a fodder for disputing their signatures on the respective memoranda. However, despite expressing that rather negative perception on the act of recompilation ..." ought to have found that there was no need for Jilleen Tia (DW2) to have opened and recompiled the Memoranda and consequently the learned trial Judge failed to hold that:

Ms. Jilleen Tia as custodian of the Memoranda after its purported execution should not have opened it and inserted/replaced pages;

The excuses of DW2 Ms. Jilleen Tia were frivolous as the Memoranda could be stamped and franked without it being opened and there was no need to insert photocopies of such pages from the ORIGINAL Memoranda into the DUPLICATE Memoranda; 21

Jilleen Tia should not make alterations to the Certificate of Authentication by Michael Ong which she had no authority to do so;

DW2 Jilleen Tia's evidence showed that she was not a credible and reliable witness and thus her evidence should have been rejected;

Jennifer Chen was a credible witness whose evidence is consistent with the 4th to 9th Plaintiffs when they testified that they did not execute the Memoranda in the presence of Michael Ong;

2.1 The learned trial Judge had erred in law in expunging crucial parts of PW3 Ms. Jennifer Chen's evidence that stated that the purported signatures on the ORIGINALS and DUPLICATES of the Memoranda were not signatures of the late Michael Ong Kee Tuan but PW3's evidence relating to the non-execution of the Memoranda remained and showed that it was not attested by Michael Ong and this erroneous ruling prejudiced the Respondents' case in that Jilleen Tia could be responsible for the forgery of the Memoranda;

The learned trial Judge having found that the terms of the Memoranda were never subjected to negotiations failed to hold that Clause 9 was not brought to the attention of the 4th to 9th Plaintiffs who signed the Memoranda of Deposit in place of Goodlink Sdn Bhd.

3.1 The learned trial Judge failed to apply the English Court of Appeal case of Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd (1989) 1 All ER 348 that the Respondents are not bound by onerous and/or unusual term that were not brought to the Respondents' attention and hence Clause 9 was not part of the contract/Memoranda between the parties. 22

The learned Judge failed to hold that it was contrary to the Agreement between the parties to impose personal liability on the 4th to the 9th Respondents as they had from the commencement of the negotiations specifically informed the Appellant that the directors of the Respondents Company could not give personal guarantee and this was accepted by the Appellant.

4.1 The learned trial Judge failed to consider that the Appellant in its e-mail dated 20/4/2010 had directed "Goodlink will have to distribute its SJB shares to all its shareholders and such shareholders who will then individually pledge its SJB shares to the Appellant....." that the 4th to 9th Plaintiffs pledge the share and hence did not carry personal liability.

The learned Trial Judge erred in law and fact in failing to find that Kenanga's Letter of Offer dated 9/12/2009 specifically referred to the 5th Plaintiff's letter dated 11/9/2009 whereby an oral agreement was reached with the 5th Respondent that Kenanga will not impose any personal guarantee:

The learned Judge erred in not finding that Kenanga's Letter of Offer dated 9/12/2009 issued after the exchange of emails between the parties and the earlier meeting had represented to the Respondents that Kenanga would not impose any personal guarantee or liability for the restructuring of the loan of Swee Joo Berhad and consequently Kenanga is estopped from contending that Clause 9 imposed personal liability on the Respondents;

The learned trial Judge failed to consider that the Appellant in seeking to impose personal liability under Clause 9 of the Memoranda against the 1st to the 9th Respondents is guilty of Misrepresentation as a collateral contact was formed by way of contemporary correspondences 23 and e-mails which confirmed that there was no personal/directors guarantee.

6.1 The learned Trial Judge failed to consider that the 4th to the 9th Respondents as individual pledgors had stepped into the shoes of Goodlink Sdn Bhd to pledge the shares of Swee Joo Berhad as individual shareholders of Goodlink Sdn Bhd at the request of the Appellant and hence the liability of individual shareholders cannot be more onerous that the corporate pledges.

The learned Trial Judge failed to find that it was inequitable for Kenanga to seek to impose Clause 9 of the Memoranda, which they allegedly carried liability of RM120M, on the Respondents who were individual pledgers of shares when they agreed to pledge limited shares which they have as 3rd Party Pledgors as Additional Security in place of Goodlink at the request of the Appellant.

7.1 The learned trial Judge failed to consider that the Memorandum of Deposit of Shares is not a contract of guarantee and the individual Respondents did not intend to be personal guarantors for the liability of Swee Joo Berhad.

The learned trial Judge failed to consider that the Bank accepted the 4th to 9th Respondents' Memorandum of Deposit as a charge and not a contract of guarantee and there is a warranty by the Appellant that they will not proceed personally against the 4th to 9th Respondents.

The abovenamed 1st to 10th Respondents prays that the Judgment of the High Court be varied and prayer 5A or other prayers of the Statement of Claim be allowed as the justice of the case may require.

Consequently, the learned trial Judge ought to have dismissed the Counterclaim of Kenanga for the above stated additional reasons. 24

The abovenamed 1st to 10th Respondents prays that the Judgment of the High Court be varied to the extent enumerated above.

And the 1st to 10th Respondents prays for costs of the Appeal and Cross-Appeal.” [16] Both parties have agreed by deciding enclosure 28(a) that decision will be binding on enclosure 25(a). [17] After hearing both the enclosures, we allowed prayer (a) of both the enclosures and in consequence, both the amended cross-appeals were struck out. Subsequently, we heard both the main appeals and reserved our judgments. [18] We will now give our grounds for striking out the amended cross-appeals and our decisions on the main appeals. General Jurisprudence on Appeal, Cross-Appeal, Courts of Judicature Act 1964 (CJA 1964), the case of Leisure Farm and the Courts’ approach at trial and appellate stage in the employment of micro and macro jurisprudence. [19] From decided cases, it can be seen that courts take two different approaches on issues raised in the trial court or appellate court to reach a decision. One is a narrow or adversarial approach where substantive justice is not foremost in the mind of the courts. The courts under this approach only deals with what was argued by the parties before the court related to the facts, rules and/or law. For ease of reference, we will call this narrow approach as judicial application of micro-jurisprudence. The other approach is overall and/or inquisitorial approach and/or holistic 25 approach to decide on the facts and law who should succeed to attain substantive justice as opposed to who should win based on procedure or technicalities per se. For ease of reference, we will call this holistic approach as judicial application of macro-jurisprudence. [20] The common law courts a few centuries back were not supportive of substantive justice, when procedure and/or technicalities were raised by a litigant to defeat substantive justice. In the application of micro-jurisprudence, the court will hear the issues or objections which have been placed before them and the rules, procedure or legislation or case laws which were referred to them only and make a decision. In short, it was a game of adversarial justice and not substantive justice. [See Sir Jack I.H. Jacob, The Reform of Civil Procedural Law and other Essays in Civil Procedure, London Sweet & Maxwell London, 1982]. [21] Things changed in the last few decades. Legislation as well as rules of court were in place to ensure that courts provide substantive justice and matters are not decided based on procedural non-compliance or technicalities without giving an opportunity to the litigant to correct the mistakes and/or non-compliance. Lord Woolf’s report and the subsequent amendment to the Rules of Court were meant to bury the application of micro-jurisprudence on procedure and/or technicalities and to advance an inquisitorial and/or holistic approach to attain substantive justice. That is to say, the court has to play a part to give directions to avert the procedural and/or technical issues to cater for substantive justice. In short, court was obliged to apply macro-jurisprudence to arrive at substantive justice and the game of adversarial justice on procedural non-compliance was intended to be made obsolete. Regrettably that idealism has not been fully achieved as counsel often 26 have submitted obsolete cases in procedural jurisprudence to obtain decisions from court to defeat substantive justice. [See Redang Paradise Vacation Sdn Bhd v Yap Chuan Bin [2017] 1 LNS 1326]. In this connection, it would be relevant to quote what Lord Denning MR had to say in Northman v Barnett Council (1978) 1 WLR 221, His Lordship observed: "In all cases now interpretation of statutes, we adopt such a construction as will promote the general legislative purpose underlying the provision. It is no longer necessary for judges to wring their hands and say: "There is nothing we can do about it." - Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it by reading words in if necessary, so as to do what Parliament would have done, had they had the situation in mind." - "I dare say, the Rules Committee in formulating the rules as they are did not have the slightest intention to cause hardship and inconvenience let alone injustice to the parties concerned." [22] The decisions of the Federal Court which is supportive of substantive justice are many and to name a few are as follows:

(i) In Tunku Yaacob Holdings Sdn Bhd v Pentadbir Tanah Kedah & Ors [2016] 1 MLJ 200 the Federal Court considered the 'settled general rule' that when a statute is susceptible of two or more interpretations, normally that interpretation should be accepted as reflecting the will of the legislation which is presumed to operate most equitably, justly and reasonably as judged by the ordinary and normal conceptions of what is right and what is wrong and of what is just and what is unjust. 27

(a) the Federal Constitution is supreme law of the land. Failure to consider its provision in decision-making-process will be fatal;

(b) the Court of Appeal is vested with powers to deliver substantive justice pursuant to section 69 of CJA 1964, notwithstanding there was no cross-appeal or no notice of appeal has been filed though one party has filed a notice of appeal. [We will deal on section 69 of CJA 1964 in detail shortly].

(c) the Rules of Court which condone non-compliance and the provisions which deal with overriding objective of the court; 29

(d) to consider fresh issues of law at the appellate stage notwithstanding it was not raised at trial, etc. [25] Application of macro-jurisprudence is very relevant to the Court of Appeal and strongly anchored in section 69 in particular sub-sections (4) and (5) to deliver substantive justice. Section 69 of CJA 1964 states:

“Hearing of appeals

(a) Rules of the Court 2012 (RC 2012), Order 2 rule 1; Order 3 rule (2)(3) which particularly emphasises the point substantive justice must be the paramount consideration of the court. In Redang Paradise Vacation Sdn Bhd & Ors v Yap Chuan Bin & Ors [2017] MLJ 1292, the Court of Appeal in rejecting micro-jurisprudence and applying macro-jurisprudence, had this to say: 31 “[3] It is now well established that common sense jurisprudence has been a tool for the so called 'reasonable man' in his decision making process. This jurisprudence has been captured in a number of English decisions as well as the decision of our apex court in a number of cases in relation to decision making process by the courts. In the case of Alami Vegetable Oil Products Sdn Bhd v. Hafeez Iqbal Oil & Ghee Industries (Pvt) Ltd [2016] 7 CLJ 19, the Court of Appeal had this to say: "...Lord Denning had often reminded us that judicial decision must not be confined to law but also common sense which we these days called as purposive approach and is partly codified. (See s. 17A of the Interpretation Acts). At times, without the application of common sense, a just result cannot be achieved. Common sense approach has been adopted in a number of Malaysian judgments." [See (i) Keng Soon Finance Bhd v. MK Retnam Holdings Sdn Bhd & Anor [1989] 1 CLJ 897; [1989] 1 CLJ (Rep) 1; [1989] 1 MLJ 457; (ii) Comandate Marine Corp v. Pan Australia Shipping Pty Ltd [2006] FCAFC 192]. [4] The RC 2012, to ensure the merits of the case or appeal is heard to attain substantive justice, have introduced a number of provisions to fortify the principles. Cases now have to be heard on merits and cannot be dismissed for non-compliance of rules unless there are exceptional reasons to do so. For example, Order 1A of RC 2012 asserts: "ORDER 1A Regard shall be to justice (O. 1A) In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules." 32 And Order 2 asserts: "ORDER 2 Non-compliance with Rules (O. 2, r. 1)

(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been non-compliance with the requirement of these Rules, the non-compliance shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

(b) The Court of Appeal is obliged to act within the spirit and intent of RCA 1994 in particular rules 1A and 3A which states: “Court or Judge shall have regard to justice (O. 1A)

In administering these Rules herein, the Court or a Judge shall have regard to justice of the particular case and not only to the technical non-compliance of any of the rules herein.” And rule 3A of RCA 1994 which emphasises that preliminary objection on the ground of non-compliance shall not be allowed. That part of the rule reads as follows: 34 “Preliminary objection on the ground of non-compliance shall not be allowed.

A Court or Judge shall not allow any preliminary objection by any party only on the ground of non-compliance of any of these Rules unless the Court or Judge is of the opinion that such non-compliance has occasioned a substantial miscarriage of justice.” [Emphasis added].

(c) The emphasis in rule 3A is just not an issue relating to non-compliance but is related to one where the complainant must demonstrate that non-compliance had in fact caused substantial miscarriage of justice. Substantial miscarriage of justice can only occur when the non-compliance is of a nature that it cannot be compensated by costs. The threshold to satisfy ‘substantial miscarriage of justice’ is extremely high and in almost all cases where preliminary objection are raised on non-compliance the complainant will not be able to meet with the required threshold. [Emphasis added]. [27] Section 69 CJA 1964 and RCA 1994 under rule 1A and rule 3A, when read together, anchors macro-jurisprudence in all cases for the court to pave way for the merits of the appeal to be heard to deliver substantive justice. [28] In Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu & Ors [2015] 4 MLJ 543, the Court of Appeal dealt with rules of procedure related to cross-appeal. 35 [29] It has been a long practice by practitioner to file a cross-appeal to address all their grievances in the decision when a notice of appeal has been filed by one party. It was seen to be convenient as well as time saving measure for the respondent to the appeal just to file a cross-appeal and rely on the record of appeal filed by the appellant. This practice was put to a halt by the case of Leisure Farm. The Court of Appeal went to set out the law in respect of the cross-appeal in reliance of rules of procedure only and applied micro-jurisprudence to derive at the decision as parties therein did not submit on section 69 of CJA 1964, rule 1A and rule 3 A of RCA 1994, etc.; and the Court of Appeal heavily relied on the English cases, etc. such as (i) In Re Cavander’s Trusts [1881] 16 ChD 270; (ii) Bandur et al v Daiken et al [1967] 1 OR 629, CA;

In all these rules of court, it is clearly stated that once there is a notice of appeal, the appeal will be by re-hearing. If a Notice of Appeal can trigger a re-hearing under the rules, it will be jurisprudentially difficult to conclude that the respondent to the appeal will not have the benefit of the decision of the appellate court in rehearing. However, the Court of Appeal in Leisure Farm gave an interpretation to the Form which stated that ‘varied to the extent’ and not just the Rules which says ‘vary’, consonant with the concept of rehearing. The RCA 1994, rule 8(1) says: “8. Notice of cross-appeal

(a) the nature of the relief claimed; and

(b) the grounds relied upon.) …………………………………………. Respondent Solicitor for the Respondent” [32] The Form 2, which does not truly reflect RCA 1994 under rule 8(1), puts a rider to the Rules by stating ‘vary to the extent’. In jurisprudential term, the Forms cannot override the Rules. [See Yu Oi Yong & Anor v Ho Toong Peng & Ors [1977] 1 MLJ 120; Foo Yong Fong & Anor v R [1962] MLJ 156]. The Court of Appeal, in Kabushiki Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu & Ors [2015] 4 MLJ 543 inter alia held: “(1) The words ‘should be varied … specifying the grounds thereof’ and ‘to be varied to the extent’ in r 8 and Form 2 respectively of the RCOA, do not carry with them a meaning that there could be a total or wholesale setting aside or review (of the substantive judgment or any findings of the court); the extent of any contention under a cross-appeal, is to be limited to a modification or some slight difference to be made to that part only of the judgment appealed against. This is borne out by the terminology used – ‘…varied to the extent …’ clearly pointing to a limitation of sorts in the scope of the matters to be advanced by way of the cross-appeal, that is, those words being given an ordinary and natural reading (see para 25).

POWER. OF ATTORNEY 1 For the consideration aforesaid, the Chargor hereby irrevocably appoints the Bank or any of its directors or officers (from time to time duly appointed or authorised in writing by the Bank for the purpose herein and the Bank's certificate of such appointment shall be final and conclusive) to be the Chargors attorney (“the Attorney") for or in the Chargors name or otherwise in the name of the Attorney to do and execute the following acts and deeds or any of them as and when the Attorney shall think fit in relation to all or any of the Securities: 43

(a) To demand, sue for and receive from any person, registered company, corporation, government or other body all bonuses or any other sums that may become due to the Chargor in respect of any of the Securities and likewise any capital sum represented by or comprised in any of the Securities as and when the same shall respectively be payable or repayable;

(b) For any such purpose to sign, endorse and execute all receipts, warrants, cheques, releases, discharges, reconveyance, or other deeds or documents whatsoever that may be necessary or usual in the circumstances;

(c) To attend vote at and otherwise take part in all meetings held in connection with any company or corporation in relation to any of the Securities and to sign proxies for the purpose of voting there at or for any other purposes connected therewith as freely as the Charger could do;

(d) Out of any of the Chargors money in the Attorney's hands or under the control of the Attorney to pay all calls that may lawfully be made upon the Chargor or other expenses that may be incurred in relation to any of the Securities and to give security for the payment of the same;

(e) To assent (if it seems to the Attorney necessary or desirable) to any arrangement modifying the Charger's rights, privileges or duties in relation to any of the Securities and to agree, to any scheme or arrangement for the increase, or reduction, of the value or amount of the same or of the capital of any company or corporation and for any such, purpose to deposit, surrender or exchange any of the Securities, or the documents of title relating thereto and to pay any contribution or incur any other necessary expense in connection with any such scheme or arrangement; 44

(f) Generally to exercise all rights and privileges and perform all duties which now or hereafter may appertain to the Chargor in relation to any of the Securities;

(g) To cause this Power of Attorney to be registered at the registry of the High Court of Malaya and in the books of any company or corporation or elsewhere as may be necessary or desirable;

(h) To disclose to any person or party who may be concerned with the exercise of the powers hereby conferred, including any purchaser or potential purchaser of any of the Securities the terms of this Memorandum and such other documents or information as may be related thereto or to the exercise of the Attorney's powers hereunder or to the Securities where such disclosure is deemed by the Attorney to be necessary for or expedient to the exercise of their powers hereunder;

(i) To transfer, complete and vest the title of any of the Securities to or in the Bank's, or its nominees’ or agents’ names;

(j) To perfect the Chargors title to or security interest in all or any of the Securities;

(k) To enable all or any of the Securities to be deposited or transferred into, or withdrawn from the Securities Account;

(l) To enable all or any of the Securities to be deposited or transferred into any securities account maintained by any purchaser thereof (including but not limited to any securities account that may be maintained by such purchaser under the Securities Industry (Central Depositories) Act 1991); and

(m) Generally to do all acts which the Bank, deems fit to enable the Bank to comply with such rules, guidelines, procedures, requirements or orders (whether or not having the force of law) made from time to time by any 45 central depositary approved, under the Securities Industry (Central Depositories) Act 1991).

5.2 The Chargor hereby declares that this Power of Attorney shall be irrevocable so long at this Memorandum shall remain in effect or so long as there shall be any moneys or liability or obligation owing or payable under the Facility Agreement.

5.3 The Chargor hereby farther declares that all and every receipt, deed, matter and thing which shall be by the Attorney given, made, executed or done, for the aforesaid purposes shall be good, valid and effectual to all intents and purposes whatsoever as if the same had been signed, sealed, delivered, given or made or done by the Chargor in person.

5.4 The Chargor hereby undertakes at all times hereafter to ratify all whatsoever the Attorney shall lawfully do or cause to be done in or concerning the premises by virtue of this Power of Attorney.” [41] The learned judge in construing the Power of Attorney clause took the position that it was not properly authenticated before the late Michael Ong. That part of the judgment reads as follows: “Attestation before Michael Ong. The conduct, duties and obligations of a Commissioner for Oaths is regulated by law - the Commissioner for Oaths Rules 1993. The relevant Rules for my judgment here is Rule 13 and Rule 14 and they provide as follows: "Rule 13. Conduct and duties of Commissioner for Oaths.

(a) verify the identity, the personal particulars as given in the identity card or passport and the address of the person making the declaration, affirmation, affidavit, oath or statement before the Commissioner.

(b) read over and explain the contents of the documents and the exhibits attached thereto to the deponent or maker of the document, if the deponent or maker of the document is blind, illiterate or does not understand the language written in the document before certifying that he has done so in the jurat.

(c) initial any alteration made in the document to be sworn or affirmed.

(d) not affix his seal to any document unless the deponent or maker of the document signs or affixes his thumbprint thereto before him.

(e) refuse the services of his office when the Commissioner has cause to suspect that any person before him as engaging in deception, fraud, duress or any other illegal conduct.

(f) carry out the functions of his office in a prompt, reasonable and business-like manner, and

(g) make himself available to conduct all functions of his office at regular and reasonable hours.

(i) a Notary Public; or

(v) a British Consul or Vice-Consul; or

The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it is a document required by law to be attested.” [46] In dealing with sections 68 and 70, learned authors of Janab’s Key To Law of Evidence, 4th edition, revised by Dato’ Mah Weng Kwai, at page 533, have this to say: “The provisions of section 68 and 70 was considered in Boon Son Boonyanit v Adorna Properties Sdn. Bhd. [1995] 2 MLJ 863, the court held that section 68 of the Act requires at least one attestor to be called to prove the execution of a document and is intended to preclude an opponent from using the document in the absence of the attestor. However, section 70 of the Act provides that the admission of execution by a party in a document required to be attested, 'shall be sufficient proof of its execution as against him'. It follows that Memorandum of Transfer tendered by the plaintiff would be allowed on the general law of evidence although its attestor was not called to prove its execution. Vincent Ng J observed: 54 "Section 68 of the Evidence Act 1950 provides that where a document is required by law to be attested (and the memorandum of transfer in Form 14A under the NLC is such a document), it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution. However, s 70 of the Evidence Act 1950 states that the admission of execution of a document by a party in a document required to be attested shall be sufficient proof of its execution as against him. There are no local authorities on the operation of s 68 read in conjunction with s 70 of the Evidence Act

Section 70 seems to imply that a document required by law to be attested may still be used as evidence without calling the attesting witness if the party who executed the document had admitted to such execution, as it shall be sufficient proof of its execution as against him'. Thus, when read in conjunction with s 70, it becomes clear that the provision in s 68 is primarily intended to preclude the use by an opponent of a document required to be attested unless he calls the attestor thereof This provision is not intended to bar a partv who admits to having signed a document, from using the same under the general law of evidence" And at page 534: “This section is an exception to section 68. Under this section an attesting witness need not be called when the executant or his representative in interest has admitted the execution of the document. Thus, when a party admits the execution of the document, he also admits the entire series of facts which would give validity to the document. The construction of the matters stated in the document is one for the court to adjudicate. Just putting the thumb print without knowing the contents may not amount to execution. [See Arunasalam v Letchumi [1956] MLJ 89]. 55 And at page 534 and 535: “This section is said to be a departure from the English rule where by the attesting witness must be called, even though the deed be one, the execution of which is admitted by the party to it. [See Shib Chandra v Gour Chandra AIR [1922] Cal. 160; Boonsom Boonyanit v Adorna Properties Sdn Bhd [1995] 2 MLJ 863].” [47] It must also be emphasised that when a document need not be attested, there is no requirement to prove the document by calling the attesting witness pursuant to section 68. This is set out in section 72 of the EA 1950 which reads as follows: “Proof of document not required by law to be attested 72. An attested document not required by law to be attested may be proved as if it was unattested.” [48] Learned authors of Janab’s Key To Law of Evidence, 4th edition, at pages 535 and 536, on section 72 have this to say: “72. Proof of document not required by law to be attested. This section makes it abundantly clear that when a document is not required to be attested by law, but the document has been attested, then there is no requirement to prove the document by calling the attesting witness pursuant to section 68. The law does not make it mandatory for the majority of documents to be attested. However, parties, who wish to be cautious, do get it attested, by executing it before attesting persons. In such cases the rule does not require the attesting witness give evidence of the execution of the document. 56

72.1 Section 72 If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. This section lays down the procedure for proving a document which is not required by law to be attested but has been attested. In such circumstances it may be proved like any ordinary, deed which is not required by law to be attested.” [49] When a document needs to be attested according to the provisions of the law, the law will provide to use the word ‘attest’ or to be attested, etc. [50] In the instant case, there is no requirement for attestation under section 3 of the PAA 1949. The only requirement is authentication. Authentication per se may not attract section 68 of the EA 1950. A document can be authenticated in respect of an individual person even though the person did not sign the document in the presence of the witness. This is reflected in section 3 Form 1 of the First Schedule itself. That is to say, the law really does not require in strict terms for a signature to be witnessed by the relevant person, in person under the said Act. In the instant case, there is no issue on the signature of the signatories. The First Schedule related to section 3 of PAA 1949 reads as follows: POWERS OF ATTORNEY FIRST SCHEDULE (Section 3) FORM 1 FORM OF AUTHENTICATION IN CASE OF A POWER OF ATTORNEY EXECUTED BY AN INDIVIDUAL 57 [51] An authentication clause of the 5th plaintiff which is similar to all the authentication clause in Appeal no. ‘1276’ reads as follows: “I MICHAEL ONG KEE TUAN, a Commissioner for Oaths officiating at Kuching, hereby certify that the signature of the Chargor was written in my presence on this 19 May 2010 and is, to my own personal knowledge, the true signature of Allister Hilton Smith (NRIC No. z 700718-13-5113) who has acknowledged to me that he is of full age and that he has voluntarily executed this instrument.” [52] The respondents’ argument at the most in relation to authentication clause will relate to irregularity. Even if a Power of Attorney is irregular for some reasons or others, the law recognises that it is valid until it is lawfully revoked. In the instant case, there was no application before the court to revoke the Power of Attorney. In this respect, it was a misconceived attempt of the respondents to impeach the Power of Attorney clause by inviting the learned trial judge to rule on a registered Power of Attorney in breach of the salient provisions of section 5 of PAA 1949 which reads as follows: 58 “Revocation

Every instrument purporting to create a power of attorney of which a true copy or an office copy has been deposited in the office of the Registrar or a Senior Assistant Registrar in accordance with this Act or any law repealed by this Act whether before or after the commencement of this Act, shall, so far as the said instrument is valid and so far as may be compatible with the terms of the instrument, continue in force until notice in writing of the revocation thereof by the donor, or of the renunciation thereof by the donee, has been deposited in every office in which the office copy or true copy thereof has been so deposited, or either the donor or the donee has died or the donee has become of unsound mind, or the donor has been adjudged to be of unsound mind or a receiving order has been made against him in bankruptcy.” [53] In addition, a Power of Attorney given for valuable consideration is said to be irrevocable. Support for the proposition is found in section 6 of PAA 1949 which reads as follows:

“Powers of attorney given for valuable consideration

(a) the power shall not be revoked at any time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power; and

(b) any act done at any time by the donee of the power, in pursuance of the power, shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power, had not been done or happened; and 59

(c) neither the donee of the power, nor the purchaser, shall at any time be prejudicially affected by notice of anything done by the donor of the power, without the concurrence of the donee of the power, or of the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power.

(i) In principle, the respondents were wrong to dwell on the issue of Power of Attorney clause and the authentication and/or witnessing issue when the Power of Attorney stands unrevoked. It would have been different if the Power of Attorney was forged, etc. and registered. This distinction must be kept in mind when dealing with the Power of Attorney issue.