Laser Equity Sdn Bhd v Abdul Wahab bin Husin (N-02(NCvC)(W)-478-03/2018)

1 5 DALAM MAHKAMAH RAYUAN MALAYSIA BERSIDANG DI PUTRAJAYA (BIDANG KUASA RAYUAN) 10 RAYUAN SIVIL NO: N-02(NCvC)(W)-478-03/2018 ANTARA 15 LASER EQUITY SDN BHD … PERAYU (No. Syarikat: 671800-P) 20 DAN ABDUL WAHAB BIN HUSIN … RESPONDEN 25 DIDENGAR BERSAMA DALAM MAHKAMAH RAYUAN MALAYSIA BERSIDANG DI PUTRAJAYA 30 (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: N-02(NCvC)(W)-477-03/2018 35 ANTARA PALANISAMY A/L MUNIANDY (beramal sebagai pemilik tunggal 40 firma guaman bernama Tetuan M.P. Samy & Co.) … PERAYU DAN 45 ABDUL WAHAB BIN HUSIN … RESPONDEN 2 5 [Dalam Mahkamah Tinggi Malaya di Seremban Dalam Negeri Sembilan Darul Khusus Guaman Sivil No: S-22NCVC-106-11/2015 10 Antara Abdul Wahab bin Husin (No. K/P : 480909-05-5173) … Plaintif 15 Dan

1. Laser Equity Sdn Bhd 20 (No. Syarikat: 671800-P)

2. Palanisamy a/l Muniandy (beramal sebagai pemilik tunggal firma … Defendan-guaman bernama Tetuan M.P. Samy & Co.) Defendan] 25 KORUM ZALEHA YUSOF, HMR 30 YAACOB MD SAM, HMR LAU BEE LAN, HMR GROUNDS OF DECISION 35 Introduction [1] There are 2 appeals before us. Appeal No. N-02(NCvC)(W)-478- 03/2018 (‘Appeal 478’) and Appeal No. N-02(NCvC)(W)-477-03/2018 (‘Appeal 477’). Appeal 478 and Appeal 477 are appeals brought by the 1st and 2nd Appellants/1st and 2nd Defendants respectively against the 40 order of the High Court dated 27/2/2018 allowing the 3 Respondent/Plaintiff’s claim. (There is no mention of any dismissal of the 5 1st Appellant/1st Defendant’s Counterclaim in the said order although the same was mentioned in the Grounds of Judgment). Dissatisfied with the said decision, the 1st and 2nd Appellants/1st and 2nd Defendants appealed. We shall for purposes of these appeals refer to the parties as they were referred to in the High Court. 10 [2] At the High Court, the 1st Judge heard the evidence of the Plaintiff’s 1st witness, Abdul Wahab bin Husin, the Plaintiff himself (PW1). The 2nd Judge (‘the trial Judge’) who took over conduct of the case continued with the trial and heard a minor re-examination of PW1, 15 the Plaintiff’s 2nd witness, Iskandar bin Azaman (PW2), the document examiner and all of the witnesses for the Defendants, namely, two witnesses for the 1st Defendant : (i) Moghan a/l Murugiah (DW1) (real estate agent and licenced auctioneer) and (ii) Parimela Devi a/p Veerarajulu (DW2) (Director of the 1st Defendant) and two witnesses for 20 the 2nd Defendant: (i) Sithradevi a/p P. Nagalingam (DW3) (freelance consultant) and (ii) the 2nd Defendant (DW4), Palanisamy a/l Muniandy. [3] Having considered the submissions of the respective counsel, both written and oral and having perused the Records of Appeal before us, 25 and for the reasons that now follow, we unanimously allowed the appeal. Background Facts [4] The Plaintiff was the registered owner of a three storey shop house held under H.S.(D) 110429, P.T. 849, Pekan Bukit Kepayang, 30 District of Seremban, Negeri Sembilan (‘Property’) until it was transferred to the 1st Defendant on 5/9/2007. When the Plaintiff was the 4 owner of the Property, he entered into an agreement on 6/2/2006 to sell 5 it to M. Lachimi a/p Muniandy (‘the 1st S&P’)(exh.P1, p.38, CCB (Common Core Bundle) Vol.2) for a purchase price of RM330,000.00 within a stipulated period of 3+1. The Plaintiff received RM40,000.00 as deposit. As Lachimi did not pay the balance purchase price of RM290,000.00, the 1st S&P was terminated on 6/6/2006. The Plaintiff 10 further alleged that Lachimi as at 17/10/2008 still owed him a balance purchase price of RM30,000.00 with interest of RM47,845.33 totalling RM77,845.33. In the 1st S&P, Lachimi was represented by Sithradevi of M/s Sithra & Partners (DW3). The Plaintiff was not represented. 15 [5] The 1st Defendant then entered into a sale and purchase agreement with the Plaintiff on 21/5/2007 (‘the 2nd S&P’) (exh.D11, CCB Vol.2 p.54) for the purchase price of RM200,000.00. In the 2nd S&P, the Plaintiff was represented by the 2nd Defendant and the 1st Defendant by M/s Nurliny, Pannir Mannar & Co. 20 [6] However, the Plaintiff in the 2nd part of his Statement of Claim alleges that he did not execute exh.D11, the transfer Form 14A dated 18/7/2017 (exh.D34, CCB Vol.2 pp.70-73), a Power of Attorney (‘PA’) dated 21/5/2007 between Plaintiff and D1 (exh.D35, AR (Appeal Record) 25 Vol.3 (iv) pp.928-933) and the PA dated 9/4/2007 between Plaintiff and DW3 (exh.D23, CCB Vol.2 pp.70-73) authorising DW3 to transact the sale and also he did not give any letter of authorisation dated 18/5/2007 authorising the 2nd Defendant to release the balance purchase price of RM168,000.00 to DW3 (exh.D25, CCB Vol.2 p.74). Hence the Plaintiff 30 alleges that the Property was transferred to the 1st Defendant assisted by the 2nd Defendant by fraud or forgery and claims a host of matters, some of which have been mentioned earlier including the Plaintiff’s 5 denial of appointing the 2nd Defendant or ever meeting him with regard to 5 the 2nd S&P. [7] The 1st Defendant’s position is that it has paid the entire purchase price, RM32,000.00 to DW1 as his fees and the balance RM168,000.00 to the 2nd Defendant as solicitor for the Plaintiff. The 2nd Defendant 10 maintains that he met the Plaintiff in his office, where the Plaintiff appointed him to act in the 2nd S&P and received the balance purchase price which was forwarded to the Plaintiff through DW3. According to DW3 the Plaintiff received a total of RM414,000.00 from the sale of the Property to Lachimi and to the 1st Defendant. The said sum also consists 15 of rental of the Property. Decision of the High Court [8] The Grounds of Judgment (GJ) of the learned trial Judge appears at pp.22 to 37 of the Supplementary AR. The learned trial Judge found 20 that the Plaintiff has proved fraud and forgery against the 1st and 2nd Defendants. These findings are contained in paras 29A to O of the GJ wherein the learned trial Judge commented “the proof [are] overwhelming [especially,] paras G, H and I”. The learned trial Judge then granted the following order - 25

41. Q: You ada cek? A: Saya tidak ada cek. 15

42. Q: Kamu ada apa apa penyata bank mengatakan Lachimi yang bayarkan wang ini. Ada atau tidak? A: Tidak.

43. Q: Jadi Lachimi tidak bayar? 20 A: Saya tidak tahu. Sithra

44. Q: Kalau awak tidak tahu kenapa awak tak tanya peguam Latiff kamu? Ini wang datang dari mana? A: Wang datang dari Sithra.” 25 We are of the view that the Plaintiff contradicted his testimony when all along he said that Lachimi paid all the money but in cross-examination he said it was paid by DW3. 30 B. The S&P (the 2nd S&P) D. The 1st Defendant admitted handing no money to the Plaintiff. [16] The learned trial Judge made a finding that the 2nd S&P is a fake and a forgery for these reasons - 35 13

80. Q: I put it to you Mr. Palanisamy that you are buddy to fraud committed by somebody the third party. Do you agree with me? A: I don’t agree. There is no fraud involve.” 10 [17.5] DW4’s aforesaid testimony was corroborated by DW3’s testimony in examination in chief (Q&A 21, CCB Vol.1 p.177) - On 21/5/2007, I was at M.P. Samy's office. Hj Wahab came. I took himinto (sic) the office and it ole dhte (sic) Plaintiff we engage Mr. M.P. Samy orally to which he agreed and M.P. Samy further showed 15 the i) S&P, ii) Boang (sic) 14A and explained to Abd. Wahab, and also about the non payment of the deposit RM32,000.00 which I explained to Abd. Wahab its being aghent (sic) commission and that all the BPP I will pay to the Plaintiff to which the Plaintiff said: "saya semua serah kepada Sithra dan setuju apa-apa puan Sithra buat. Janji saya 20 dapat wang baki.". The Plaintiff then signed al (sic) the documents in the presence of M.P. Samy and in my presence. Ple refer to pages 9-24 ID-D2. Yes. This is Plaintiff's signature and this was attested by Mr. M.P. Samy's. Please also refer to p.25 - ID-D2: Yes this Plaintiff's sign (sic) and p. 26 attested by Mr. M.P. Samy.” 25 DW3 identified the Plaintiff’s signature which was attested by DW 4. [17.6] Fourthly, there is documentary evidence in the form of the letter of authorisation dated 18/5/2007, exh.D25 wherein the Plaintiff 30 authorised DW4 to release RM168,000.00 directly to DW3 which fact was unchallenged. [17.7] Fifthly, DW3 was cross-examined regarding which version was correct: DW2 stated that she received RM32,000.00 before signing the 35 16 2nd S&P which she gave to the Plaintiff or DW3’s version that DW1 5 (agent) received RM32,000.00 as deposit. DW3 replied (CCB Vol.1 pp.200-201) - The RM32,000.00 initially taken by Mr. Moghan. Then later, when the balance purchase price has been release to me we have a meeting, this incident was taken place on 21st of May 10 2007. So, Mr MP Samy informed the Plaintiff the RM32,000.00 is not paid because it is agent's fees. Then, I told En. Wahab the Plaintiff that this payment I can pay to you later. If you need the money urgently, we can make the payment because you have to pay RM80,000.00 to Lachimi 15 for the termination of the agreement so the Plaintiff was complaining the money was not sufficient how can I pay Lachimi on that point of time. So what I told him we collect the balance purchase price, that will be release to us. Later the deposit sum RM32,000.00 I will pay it to you. This is what 20 I said but I never got it in my hand.” [17.8] We find DW3’s aforesaid evidence was further strengthened by her evidence under re-examination (CCB Vol.1 p.228) - “Mr MP Samy explained the content of the S&P, the 14A, the form and 25 whatever document have been executed and then he said I leave everything saya serah kepada Sithra setuju dapat wang baki. This is what he said and that is where from there then I did all the necessary transaction.” 30 [17.9] DW3’s aforesaid evidence as to what transpired at the office of DW4 corroborated DW4’s testimony in chief (Q&A 15 CCB Vol.1 p.245). Under cross-examination by the Plaintiff’s counsel regarding the deposit of RM32,000.00, DW4 answered - Dalam bilik kamu apakah terjadi? 35 17 Pn. Sithra telah beritahu kepada Plaintif bahawa mereka lantik 5 Peguam M.P. Samy secara lisan dan Plaintif setuju. Setelah itu saya: telah terangkan tentang Perjanjian, B.14A dan tentang tiada bayaran deposit RM32,000, Pn. Sithra kata Pembeli telah bayar kepada ejen Sithra (Mohan) dan En. Mohan setelah tolak komisyen telah bayar bakinya kepada Pn. Sithra dan Pn. Sithra berurusan 10 dengan Plaintif - masa ini Plaintif telah bersetuju dengan Sithra. Kemudian Plaintif telah menandatangani Perjanjian jual-beli, P/A, dan instrument Pindahmilik dalam kehadiran saya dan Pn. Sithra.” DW4 had identified the Plaintiff’s signature and his own signature on the 2nd S&P and the Plaintiff’s signature in Form 14A which was 15 witnessed by him. C. The 2nd Defendant is lying [18] The learned trial Judge made a finding that there was no proof of payment of RM168,000.00 or RM163,900.00 (after deduction of 20 RM4,100.00: 2nd Defendant’s fees) to the Plaintiff or DW3 and that the 2nd Defendant was lying. On a perusal of the evidence as to how the purchase price of RM200,000.00 was received and disbursed we find the learned trial Judge has erred when he failed to look at the relevant documentary evidence. 25 [18.1] To reiterate, RM32,000.00 was the agent fee paid directly to DW1 by the 1st Defendant. The balance fee of RM168,000.00 was paid by the 1st Defendant’s solicitor, Messrs Nurliny, Pannir Mannar & Co. vide MBB cheque no.414293 for the said sum (ROA Vol. 3 (iv) p. 943) under cover 30 letter dated 24/5/2007 addressed to the 2nd Defendant (exh.P10 CCB Vol.2 p.11). The receipt of payment of the said RM168,000.00 is evident from the official receipt dated 24/5/2007 from the 2nd Defendant’s firm, 18 Messrs M.P. Samy & Co. to Messrs Nurliny, Pannir Mannar & Co. 5 (exh.D36A CCB Vol.2 p.83). [18.2] The balance payable was RM163,900.00 which was arrived at after the 2nd Defendant deducted his fees of RM4,100.00. The breakdown for the said amount of deduction is found at exh.26A, a letter 10 dated 28/5/2007, CCB Vol.2 p.12 read together with exh.36B and exh.36D CCB Vol.2 pp.84-85. [18.3] The said sum of RM163,900.00 was then paid by the 2nd Defendant to Messrs Sithra & Partners vide CIMB cheque no.718913 15

pursuant to a letter dated 18/5/2007 from the Plaintiff to the 2nd Defendant titled “Surat Kebenaran Untuk Pembayaran” (exh.D25, CCB Vol.2 p.74). Vide exh.D25, the 2nd Defendant was authorised by the Plaintiff to issue payment of RM168,000.00 directly to DW3 based on a Power of Attorney dated 9/4/2007 between the Plaintiff and DW3 20 (exh.D23 AR Vol.3 (iv) p.934). The learned trial Judge failed to consider exh.D23 which was signed before one Suliana binti Abdul Samat, an advocate and solicitor and which was duly registered in KL High Court registration no.15543/07. Exh.D23 was not objected nor challenged by the Plaintiff’s counsel. 25 [18.4] The evidence showed that the 2nd Defendant in examination in chief (Q&A 19 of Witness Statement of DW4) confirmed that DW3 collected the CIMB cheque no.718913 from him. DW3 acknowledged receipt of the CIMB cheque no.718913 under cover letter, exh.26A and 30 the voucher from the 2nd Defendant’s firm dated 28/5/2007(exh.D26B, CCB Vol.2 p.75). This piece of evidence was not challenged by the Plaintiff. 19 5 [18.5] The evidence of DW4 is corroborated by DW3 who in examination in chief stated that she attended the office of Messrs M.P. Samy & Co. on 28/5/2007 and signed the Client’s Account voucher dated 28/5/2007 and took the CIMB cheque no.718913 for the total sum of RM163,900.00 after deductions which documents were not objected 10 to and accordingly marked as exhibits hereinbefore referred. [19] The learned trial Judge stated, amongst others, “SD was never appointed by the Plaintiff.” (para 33 GJ). With respect we disagreed as we find the learned trial Judge failed to consider the following evidence. 15 In this regard we refer to DW3’s testimony in examination in chief that on 21/5/2007 she and the Plaintiff were at DW4’s office and she told Plaintiff orally that we engage DW4 to which the Plaintiff agreed. In cross-examination, DW3’s evidence that it was the Plaintiff who appointed and she informed Plaintiff to appoint DW4 remained 20 unshaken. The issue of DW4’s appointment as solicitor by the Plaintiff in respect of the 2nd S&P was corroborated by the evidence from DW4 who remained steadfast in cross-examination. This can be seen from CCB Vol.1 pp.258-260 at Q&A(s) 18, 21 culminating in the following answers: 25 “30. I put it to you Mr. Samy that Haji Wahab the Plaintiff did not come to you office to sign anything at all? I don’t agree. He did came to my office as stated at the relevant papers of transfer.

31. So, are you saying to this court Shitra asked him to come to 30 your office and he appointed you orally in the Sales and Purchase property? Yes.”. (Emphasis added) 20 5 E. 2nd Defendant cannot explain what is the amount that he paid to the Plaintiff [20] At para 36 of his GJ the learned trial Judge, amongst others, stated - “On [3/1/2018] this court asked the counsel for SD to explain how much SD 10 paid the Plaintiff [and] he gave different amounts but the amounts do not tally to RM200,000.00 … or RM168,000.00. [T]he notes of evidence on 3 January 2018 showed that SD’s counsel said the total payment after periodical/staggered payments to Plaintiff from SD is only RM41,000.00.” 15 [20.1] We reiterate our position there are no such notes of evidence and therefore the learned trial Judge’s statement is with respect unsubstantiated. [21] The learned trial Judge further stated that - 20 “The bottom line is [SD] failed to show how the alleged periodical/staggered payments tally to these two amounts of RM200,000.00 or RM168,000.00. In any event, normally a lawyer acting for a vendor makes one payment only or the most two to the vendor and not periodical/staggered payments. SD cannot show a cheque from him to Plaintiff amounting to RM200,000.00 or 25 RM168,000.00. All these add to the probability that this Property transaction is nothing more than a fraud.” [21.1] With respect we had to disagree with the findings of the learned trial Judge. As alluded in para 18.3 above, the 2nd Defendant was 30 dealing with DW3 pursuant to a letter of authorisation dated 18/5/2007 (exh.D25) issued by the Plaintiff which was not denied by the Plaintiff and the 2nd Defendant did not release any money to the Plaintiff directly. The balance purchase price was disbursed to the Plaintiff through DW3 21 and the payments were made either directly to the Plaintiff or to his 5 lawyers Messrs Moghan & Co. or Messrs Abd. Latiff Ahmad & Co. In fact the 2nd Defendant pleaded the sequence of the payments by DW3 as particularised below which we find is in accord with the details of the disbursement of the purchase price as per Q&A 25 of DW3’s Witness Statement. The Plaintiff received in total RM334,400.00. Particulars of 10 these payments are as follows: “Tarikh Amount Penerima Cek/Voucher Sebagai bayaran 25/5/07 RM24,000/- Plaintif Bank Islam, Bk. Bayaran untuk harga Inslip (Ek.D27A) belian 6/6/2007 RM6,400/- Plaintif Citibank Cek-sama- 15 (Ek.D27B) 29/6/2007 RM1,000/- Plaintif Citibank Cek-sama- (Ek.D27C) 9/4/2008 RM7,000/- Plaintif Vocer bayaran-sama-tunai (Ek.D27D) 20 5/6/2008 RM30,000/- M/s.Moghan AmBank Cek refund by DW3 to (Ek.D27E) M/s. Moghan & Co for Lachimi for termination of P1 3/7/2008 RM50,000/- M/s.Moghan Alliance Bankers-sama- 25 & Co. Cek (Ek.D27F) 14/7/2008 RM30,000/- M/s. Abd. Citibank Cek Bayaran untuk Latiff (Ek.D27G) Harga Belian 7/8/2008 RM20,000/- -sama-Ambank Cek-sama- 30 (Ek.D27H) 8/8/2008 RM3,000/- Plaintif wang tunai-sama- (voucher) (Ek.D27I) 16/10/2008 RM83,000/- M/s. Abdul HSBC Bankers-sama- 35 Latif & Co. Cek 22 (Ek.D27J) 5 17/10/2008 RM65,800/- M/s. Abd. PB Bhd Bankers-sama-Latif & Co. Cek (Ek.D27K) 17/10/2008 RM14,200/- M/s. Abd. HLB Bhd Bankers-sama-Latif & Co. Cek 10 (Ek.27DK).” [21.2] We are inclined to agree with learned counsel for the 1st Defendant that the learned trial Judge erred in focusing on what was the amount paid by the 2nd Defendant to the Plaintiff directly rather than 15 directing his mind to the question of whether the Plaintiff had received the monies from DW3. It is not disputed that the 2nd S&P was signed on 21/5/2007. It is significant to note that the 1st payment on 25/5/2007 into the Plaintiff’s Bank Islam account no.0504902003204-4 (exh.D27A) in the sum of RM24,000.00 which DW3 confirmed vide letter dated 20 6/6/2007 (exh.D28, AR Vol.3 (iv) p.1053) at para 1 reads - “We write to confirm that you have received a sum of RM24,000/- as first payment received from us being part of the payment received from your solicitor M.P. Samy & Co pursuant to the Sale and Purchase Agreement entered between you and Laser Equity Sdn Bhd which has been banked 25 into your Bank Islam Account No.05-049-02-003204-4 on 25/5/2007.” (Emphasis added) [21.3] In the same letter dated 6/6/2007 (exh.D28) from DW3 paras 2 and 3 read - 30 “… [W]e forward to you the second payment of RM6,400.00 via Citibank Cheque No.2969 dated 6/6/2007 as part payment received from the payment mentioned above. 23 … [K]indly acknowledge receipt of the said payments on the copy of the 5 aforesaid cheque No.296987 for our safe keeping.” It can be seen that the Plaintiff acknowledged receipt by signing on the said cheque for a sum of RM6,400.00 (exh.D27 B) on 6/6/2007 at DW3’s office and this unequivocal evidence was unchallenged. The 10 unrebutted evidence before us is that based on exh.28, the Plaintiff was aware and had knowledge that the payments were made in respects of the 2nd S&P. [21.4] Further we find pertaining to the sequence of payments in para 15 21.1 above, learned counsel for the Plaintiff during re-examination did not refer exh.27A-K to the Plaintiff and questioned him whether he accepted or denied the payments as the burden of proof is borne by the Plaintiff. Hence all the payments made by DW3 were not rebutted by the Plaintiff. 20 [22] We find that “periodical/staggered payments to Plaintiff” came about due to the failure of the learned trial Judge to appreciate that it was due to DW3’s failure in not releasing the balance purchase price promptly and issuing cheques that bounced (which is addressed in para 25 24 below) which led her to disburse the purchase price in instalments as mentioned in para 21.1 above. [23] The Plaintiff testified that he asked DW3 for the return of his title. However when cross-examined by the 2nd Defendant counsel, the 30 Plaintiff said that he did not write any letter seeking a return of the title and even after engaging another lawyer in July 2008, he did not do. Further, neither did he ask Lachimi to vacate the Property although the 24 1st S&P expired and he collected rental from DW3 for the Property and 5 the Plaintiff acknowledged receipt of payment of the rental (RM31,400.00 for period 1/1/2006 to 31/12/2008 and cash payment of RM13,000.00, part payment of rental for the same period as per exh.D33A) (CCB Vol.2 p.88). 10 F. 2nd Defendant is again untruthful [24] The learned trial Judge stated “Since SD is the solicitors for the Plaintiff, why did the SD say Messrs Abdul Latiff & Co is the Plaintiff’s solicitors” and “SD is not telling the truth” (para 37 GJ). With respect we disagreed with the trial Judge’s statement as it is against the weight of 15 the evidence. DW3 testified in re-examination that somewhere in July 2008, Messrs Abdul Latiff & Co. wrote to him stating that he was appointed by the Plaintiff to act for him and thereafter DW3 disbursed the sum of RM30,000.00 (exh.27G) and RM20,000.00 (exh.27H) alluded in para 21.1 above and the payment thereof was accepted by the 20 Plaintiff. [24.1] The fact of the appointment of Messrs Abdul Latiff & Co. was mentioned by the Plaintiff himself in the Seremban Police Report (exh.P5, CCB Vol.2 p.9) which he lodged stating the appointment came 25 about when the Citibank cheque No.338556 for RM100,000.00 dated 12/7/2007 issued by DW3 to him bounced. To back track the Plaintiff from 25/5/2007 (the 2nd S&P was signed on 21/5/2007) to 29/6/2007 collected RM31,400.00 from DW3 as the balance purchase price (exh.27A-C). Upon the Plaintiff’s failure to make further payment, the 30 Plaintiff lodged the Seremban Police Report (exh.P5) wherein he reported he did an official search on the Property on 3/9/2007 and 25 found a caveat vide Presentation no.3964/2007 registered on 23/5/2007, 5 entered against the Property by the 1st Defendant and the Property was transferred to the 1st Defendant (exh.D16, CCB Vol.2 p.37). [24.2] The evidence showed the Plaintiff and Messrs Abdul Latiff & Co. from 7/11/2007 continued dealing with DW3 taking 2 more cheques 10 dated 12/7/2007 (RM100,000.00) and 10/8/2007 (Citibank cheque no. 338567 for RM200,000.00) which were bounced. Based on the sequence of payments alluded in para 21.1 above, it is clear that the Plaintiff and his lawyer wanted the balance purchase price from DW3 and having received all the monies on 17/8/2008, they remained silent 15 and it was only on 19/11/2015 (7 years later), the Plaintiff instituted this Suit against the 1st and 2nd Defendants which impinged on the question of unjust enrichment and estoppel which shall be discussed later. [24.3] There are other evidence which we found the learned trial Judge 20 did not consider. The evidence are -

2007. Will you agree with me? It was unlated (sic) taken signature in … Where is it written in … It is a normal conveying (sic) practice. 10 But I put it to you that it was sign on 18th of July 2007. Do you agree? It was later dated by Nurliny Pannir Mannar solicitor … Would you agree with me? 15 I don’t agree with you, he was present in my office. It is conveying (sic) practice to obtain signature in F14A in escroe (sic).” [26.4] Plaintiff’s Counsel submitted that oral evidence cannot be accepted to vary the written date citing Tindok Besar Estate Sdn. Bhd. 20 v. Tinjar Co. [1979] 2 MLJ 229 at pp.232-233. In our opinion, the principle in Tindok Besar does not apply because the evidence before the Court is (i) the Plaintiff had signed Form 14A in DW4’s office on 21/5/2007 which was undated and later dated 18/7/2007 by Messrs Nurliny Pannir Mannar; and (ii) this is consistent with conveyancing 25 practice where the memorandum of transfer will not be dated on the same day as the sale and purchase agreement; it will be dated on the day when the memorandum of transfer is ready for adjudication for determination of the stamp duty payable on the transfer of property as once the memorandum of transfer has been dated, it has to be 30 presented at the Land Office for registration and transfer within 3 months of the date of memorandum of transfer, failing which a penalty will be levied by the Land Office for late registration. 35 30 5 [26.5] We are of the view the learned trial Judge fell into error when he failed to consider the explanations of DW3 and DW4 and state whether he is accepting the explanation or not and if he did not accept, the reason for his refusal. 10 I. The PA and the S&P (2nd S&P) [27] In our judgment the learned trial Judge’s finding that the Plaintiff could not have signed the PA dated 21/5/2007 and the 2nd S&P is flawed because that finding is predicated on the ground that Form 14A could not have been signed on 21/5/2007. We have found the latter finding 15 erroneous for the reasons adumbrated in paras 25 and 26 and the subparagraphs thereunder. It follows that any finding based what is erroneous will likewise be flawed. [28] Further the PA dated 21/5/2007 and the 2nd S&P were never sent 20 to a handwriting expert to confirm that the signatures found therein are not that of the Plaintiff. Therefore the inference drawn by the learned trial Judge that the Plaintiff “cannot be signing” the PA dated 21/5/2007 and the 2nd S&P is again flawed. 25 K. FD [First Defendant]’s evidence [29] The learned trial Judge relied on the 1st Defendant’s evidence through DW2 that “the company is dormant, meaning the FD is not in business. Since it was not in business, it is more likely FD has no money to buy the Property” and “there was no company’s resolution to buy the 30 Property.” (p.32 GJ). As these issues were not pleaded and not issues to 31 be tried, it is incumbent on the learned trial Judge to reject these 5 unpleaded issues as it is trite that a trial should be confined to the pleadings (see Yew Wan Leong v. Lai Kok Chye [1990] 2 MLJ 152 (SC) at p.155 D-E). In our view the learned trial Judge’s statement “FD’s evidence in court will also show the probability of fraud” rings hollow in the absence of any evidence. 10 [29.1] In this regard we find the learned trial Judge had failed to appreciate the fact that the 1st Defendant’s solicitor had forwarded the balance purchase price of RM168,000.00 on its behalf to the 2nd Defendant as alluded in para 18 and the subparagraphs thereunder and 15 para 19 above. L. Sithra’s evidence [30] The learned trial Judge commented that Sithra’s evidence is highly suspect as she is “supposed to be a lawyer purportedly acting for the 20 Plaintiff” but “she cannot show her practising certificate” and she “cannot show the cheque or banking documents on the balance purchase price of the Property that was purportedly given by the SD to her.” [31] With respect we find that the learned trial Judge’s findings were 25 erroneous as His Lordship failed to analyse and appreciate the following evidence which showed to the contrary. [31.1] Sithra’s (DW3) practising certificate is not an issue at the trial and this material fact was not pleaded by the Plaintiff. Be that as it may, 30 when cross-examined, DW3 said she was a solicitor with a practising certificate in 2007; she was not acting in conflict of interest because the 32 1st S&P had expired and the Plaintiff came to see her and asked her to 5 arrange as he needed money urgently and had been waiting for 1 year. [31.2] DW3 at the material time was not acting for the Plaintiff in the 2nd S&P but equipped with the PA dated 9/4/2007, she was empowered to sell the Property without the presence of the Plaintiff (Vendor). 10 [31.3] Documentary evidence was led which proved that the Plaintiff and his lawyers had received RM334.000.00 as alluded in paras 21.1 through 21.4 above. 15 M. Handwriting Expert [32] We find the learned trial Judge was correct in not taking into consideration the handwriting report when His Lordship stated he “totally ignored” the handwriting report to prove fraud and forgery. Notwithstanding the same we felt compelled to state that His Lordship 20 erred when he concluded “the report is favourable to the Plaintiff”. [32.1] In this regard we agreed with the submission of the learned counsel for the 1st Defendant that the handwriting report has no evidential value because - 25

(ii) PW2 failed to state the methodology that was used to verify the signature; 33

(iii) PW2 was of the opinion that the impugned signature in D34 was 5 “probably not written by the writer of the specimens” (Plaintiff) and this is the lower end of the scale;

(iv) there is insufficient contemporaneous documents given to PW2 to confirm the signature in D34 is not his. To be a contemporaneous 10 document it should be existing, occurring or originating at the same time or in the same period. In this appeal, if a window of 6 months is used to classify a document as contemporaneous, none of the 6 specimens will be contemporaneous; and if 1 year is used, only 1 specimen will be contemporaneous; and the minimum requirement seems to be 8-10 (see 15 handwriting report, D8 and Ch’ng Kheng Phong v. Chung Keng Huat & Ors. [2011] 8 MLJ 32 at 70[65]). Failure to consider the evidence of the Plaintiff and Plaintiff’s failure to discharge burden of proof 20 [33] The Plaintiff pleaded as a result of Lachimi failing to pay the balance purchase, RM30,000.00 and interest RM47,845.33, he terminated the 1st S&P vide letter dated 24/10/2008. However in his witness statement (Q&A15), the Plaintiff contradicted and said the 1st S&P was terminated by DW3 vide letter dated 18/5/2007. The letter of 25 24/10/2008 was not produced as exhibit and the Plaintiff’s Counsel did not re-examine on the contradiction. [34] In his witness statement (Q&A16) the Plaintiff said that he had only known that the Property was transferred to the 1st Defendant when 30 testifying at the Seremban Sessions Court Summons No.52-1752 -2008. The Plaintiff testified in the Sessions Court on 21/10/2010 and which continued on 26/3/2011 and 30/3/2011. However the Plaintiff in his 34 police report, Seremban Report No.018005/07 (exh.P5) made on 5 7/11/2007, said on 3/9/2007 he did a search at the Seremban Land Office and found the Property was transferred to the 1st Defendant’s name and the said police report was made with the assistance of Messrs Latiff & Co. Thus we find the Plaintiff was obviously not telling the truth when he said he knew of the said transfer of the Property in 10 2010 when the evidence clearly showed that he knew as early as 3/9/2007. This is yet another instance of the Plaintiff’s inconsistent and contradictory evidence. [35] We find further inconsistencies of the Plaintiff’s evidence at para 15 15.1 through para 15.4 on the amounts of monies he received. [36] Even after knowing that the Property was transferred to the 1st Defendant, the Plaintiff did not bother to lodge a caveat to protect his interest. The Plaintiff filed the present Suit on 19/11/2015 although he 20 knew on 3/9/2007 that the Property was transferred. The unexplained delay of 8 years in filing the Suit in our considered view is but an afterthought and is not consistent with the conduct of a person who has lost his property. 25 Unjust enrichment [37] We find there is much force in the submission of the 1st and 2nd Defendants that the Plaintiff cannot be allowed to reprobate and approbate. If the Plaintiff has terminated the 1st S&P then he cannot be receiving money from Lachimi. We find the evidence showed the 30 monies the Plaintiff received, other than the RM80,000.00, came from the Property pursuant to the 2nd S&P, i.e. the purchase price paid by the 35 1st Defendant (see paras 16, 17, 18, 19 above and the subparagraphs 5 thereunder). [37.1] In our view Lord Scrutton’s LJ’s description in Verschures Creameries Limited v. Hull and Netherlands Steamship Company, Ltd [1921] 2 KB 608 (p.612) quoted by Nantha Balan J in Cheong 10 Huey Charn v. Pang Mun Chung & Anor [2017] 6 MLRH 633 at 647[35] aptly applied. The passage reads - "A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some 15 other advantage. That is to approbate and reprobate the transaction." [38] Learned counsel for the 1st Defendant further submitted that the learned trial Judge erred in law and in fact when he failed to hold that the Plaintiff was unjustly enriched in that he has received RM334,400.00 20 (see paras 15.3, 15.5 and 21.1 above) and also claimed the Property. We find there is merit in this argument as the requirements of unjust enrichment has been succinctly propounded by Azahar Mohamed FCJ (delivering judgement of the Federal Court) in Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015 ] 2 MLJ 441 at 484 [117] as 25 follows: “(a) the plaintiff must have been enriched;