Lembaga Perindustrian Nanas Malaysia v CCA ADVERTISING SDN. BHD. (JA-12BNCvC-18-07/2021)

KERAJAAN MALAYSIA ...Defendan-Defendan) 25/09/2023 09:38:24 JA-12BNCvC-18-07/2021 Kand. 42 GROUNDS OF JUDGMENT Introduction [1] This is an appeal by the Appellant/ 1st Defendant against the decision of learned Sessions Court Judge (“SCJ”) who allowed the Respondent’s claim for the unpaid sum of money in relation to the production and editorial works of seven technical videos (“Technical Videos”) prepared and delivered by the latter. [2] For ease of reference of this appeal, parties will be referred to as they were in the proceedings before the Sessions Court. [3] As a brief background of facts, after a full trial at the Sessions Court, the Plaintiff’s claim was allowed by the SCJ whereby the 1st Defendant was ordered to pay to the Plaintiff the general damages of RM20,000.00 and the special damages to be later assessed by another SCJ. [4] Based on the notes of proceedings before the Sessions Court, it was not disputed by both parties that on 2007, the then Director General of the 1st Defendant, Haji Rahmat bin Mustaffa (SD2), had appointed Festival Laman Sdn Bhd (“Festival Laman”) to produce the Technical Videos which contained various aspects of learning, training and guidance as to be used by the 1st Defendant’s employees in conducting courses to agriculture entrepreneurs who are interested in planting of pineapples. [5] For purpose of preparing the Technical Videos, Festival Laman had appointed Mr Suresh Kumar Rajadorai (SP1) as its external consultant. [6] However when the Technical Videos were about to complete, SD2 had retired and subsequently the project to produce the Technical Videos was abruptly stopped midway. [7] On or about June 2008, Shahdan bin Salim (SD6) who was SD2’s Deputy at that time (later he was appointed as the Director General of the 1st Defendant) met SP1 and requested SP1 to complete the Technical Videos as the 1st Defendant strenuously wanted them to be part of the latter’s product during the launching of Malaysia Agriculture, Horticulture and Agrotourism Exhibition 2008 (“MAHA 2008”) by the then Prime Minister. [8] Based on the request of SD6, on 14.7.2008, the Plaintiff issued an invoice No. 0170A of RM320,000.00 entitled Penerbitan Video Teknikal Penanaman Nanas (Exhibit P7) to the 1st Defendant detailing about 5 stages of work as to complete the production of the Technical Videos. SP1 later worked with the Plaintiff’s employees to re-do the Technical Videos since there were errors to the initial facts and some pertinent facts were overlooked. SP1 also attended approximately 3 working meetings with the 1st Defendant to re-write the script, add new photos and re-record the voice over before the Technical Videos were finalised. [9] Upon completion of the works, the Technical Videos were handed over to Amar Ahmadi bin Thalip (SD4) via delivery orders dated 10.8.2008 and 12.8.2008 respectively (Exhibit P6). There was no dispute on the acceptance of the Technical Videos by the 1st Defendant. In fact, one the 1st Defendant’s employee, Salahuddin bin Idrus (SD5) admitted that the Technical Videos were played during MAHA 2008. [10] The acceptance of the Technical Videos was further evident by the 1st Defendant’s letter dated 25.5.2012 to the Plaintiff entitled “Tuntutan Bayaran Perakaman Video Teknikal Penanaman Nanas melalui Invois No. 0170A” (Exhibit P11) in which SD6 admitted receiving the Technical Videos. [11] It is pertinent to note that in the Statement of Defence, the 1st Defendant and other Defendants pleaded the following, inter alia:

there was no appointment of the Plaintiff made by the 1st Defendant. Hence, there was no contractual relationship between them; and

the Plaintiff’s claim ought to be dismissed as it is time-barred. Contractual relationship between the Plaintiff and the 1st Defendant [12] It is no doubt that there was no written agreement between the Plaintiff and the 1st Defendant on the production of the Technical Videos. Nevertheless, it is incumbent upon the court to scrutinize all facts, evidence and transactions presented during the trial before considering whether there is any contractual relationship between them. [13] It is pivotal to note that an agreement either oral or written is enforceable when key elements of a contract are fulfilled. In Bekalan Sains P & C Sdn Bhd v. Bank Bumiputra Malaysia Bhd [2011] 1 LNS 232; [2011] 5 MLJ 1, Abdul Malik Ishak JCA when delivering the judgment of the court said– [55] A person is bound "whatever a man's real intention may be", if "a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into a contract with him" (Smith v. Hughes [1861-73] All ER Rep. 632 at 637; and Cambridge Nutrition Ltd v. British Broadcasting Corp [1990] 3 All ER 523 at 542). [56] An agreement is made when one party accepts an offer made by the other. The requirements are quite simple and straightforward. All it requires is that the agreement must be certain and final. [57] A contract is an agreement enforceable at law. The agreement between the parties must exhibit certain key characteristics. And if those characteristics are not present, the agreement is not a contract and the courts will not assist in its enforcement. The key characteristics are the essential elements of any contract and they may be stated as follows:

offer;

acceptance;

consideration;

intention to be bound;

mutuality;

capacity; and

legality. [58] Thus, when there is an offer and an acceptance of that offer, an agreement is in existence and the court will enforce it. In simple contracts the agreement must be supported by consideration to establish the obligation. The parties too must intend the agreement to have legal force because the courts will only enforce what the parties intend should be enforced. The parties must also agree that their agreement must be mutual. And the parties must also be legally capable of reaching a binding agreement and, finally, the subject matter of their agreement must be legal. [59] In deciding whether the parties have reached an agreement, the law looks for an offer by one party and an acceptance to the terms and conditions of that offer by the other. There would be a bargaining process leading up ultimately to an agreement or meeting of the minds. This is the traditional method of analysis of an offer and an acceptance which has been applied by the courts in determining the formation of the contracts. But for a contract to be formalised, all the terms and conditions must be fulfilled. The failure to fulfil a term or a condition would not give rise to a concluded contract. [14] In the present case, the fact that the Plaintiff submitted invoice No. 0170A (Exhibit P7) to the 1st Defendant explaining the works to be done as to complete the Technical Videos together with the amount of RM320,000.00 after the request made by SD6, in my view, amounted to an offer. [15] Likewise, the fact that the 1st Defendant admitted receiving the Technical Videos and using them during MAHA 2008, was clearly an acceptance by the 1st Defendant and the Technical Videos were undeniably the consideration. In short, all elements of a contract are met. [16] In his submission, learned counsel for the 1st Defendant denied the existence of contractual relation with the Plaintiff just because of the lack of formal written contract between them. If that is so, why the 1st Defendant sent P11 thanking the Plaintiff for completing the Technical Videos and requesting the said company to provide documents for the purpose of payment to be made? If the 1st Defendant genuinely denied the existence of contract, then why at the very beginning immediately after receiving P7, it did not flagrantly refute the Plaintiff’s claim in that letter and would not have waited until the filing this claim? [17] It is my view that P11 is a documentary evidence that the 1st Defendant admitted at least on three things –

the Plaintiff was the one who had completed the Technical

the 1st Defendant was indebted to the Plaintiff of the amount stated in the Plaintiff’s invoice P7; and

the 1st Defendant will pay the Plaintiff once all documents are in order. [18] Having considered the facts and the circumstances of the present case, I agree with the finding of learned SCJ that although there was no written agreement between the Plaintiff and the 1st Defendant, the elements of contract laid down by the law were clearly satisfied for the court to make an inference that a legal relation had been established between them. Whether the Plaintiff’s claim is time-barred [19] It is an undisputed fact that prior to the full trial of this case, on 3.4.2018, the 1st Defendant filed an application at the Sessions Court to strike out the Plaintiff’s claim. This application was allowed on 4.6.2018. However, when this matter was appealed to the High Court, the Sessions Court’s decision was overturned on 24.9.2018. The High Court’s decision was later affirmed by the Court of Appeal on 23.5.2019. [20] It is further an undisputed fact that one of the grounds advanced by the 1st Defendant in its application to strike out the Plaintiff’s claim was that the Plaintiff’s claim was out of time. The 1st Defendant contended that the cause of action arose on the date of the issuance of the Plaintiff’s invoice dated 24.7.2008 (P7) whereas the claim was filed on 20.11.2017. Thus, the 1st Defendant submitted that the Plaintiff should have filed the claim before or on 23.7.2014. [21] On this issue, I agree with learned counsel for the Plaintiff that as this issue of time bar was dealt, ventilated and decided by the High Court and the Court of Appeal before, it should not be raised again by the 1st Defendant during the trial and appeal at this court. [22] It has to be highlighted here that the grounds of judgments by the High Court and the Court of Appeal in relation to the 1st Defendant’s striking out application were not tendered during the appeal for my perusal. [23] Be that as it may, although the Plaintiff’s invoice dated 24.7.2008 (P7) and the claim was filed on 20.11.2017, I find that P11 has refreshed the Plaintiff’s cause of action against the 1st Defendant. [24] For ease of reference I reproduce the said P11 – [25] In para 3 of P11, SD6 thanked the Plaintiff for having completed the Technical Videos whereas in paras 4 and 5, he acknowledged that there is a debt due but explained on the 1st Defendant’s inability to pay the Plaintiff due to certain documents are not available at that time. [26] It is trite that a cause of action can be refreshed when there is an acknowledgement of the debt by the debtor. S. 26(2) of the Limitation Act 1953 reads – Fresh accrual of action on acknowledgment 26.

…

Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the personal estate of a deceased person or to any share or interest therein, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment: Provided that a payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder of the rent or interest then due, but any payment of interest shall have effect, for the purposes of this subsection only, as if it were a payment in respect of the principal debt. [27] S. 27 of the Limitation Act 1953 sets out the conditions for the acknowledgement can be accepted pursuant to s. 26 of the Limitation Act

S. 27 reads – Formal provisions as to acknowledgments and part payments 27.

Every such acknowledgment as is referred to in section 26 or in the proviso to section 16 of this Act shall be in writing and signed by the person making the acknowledgment.

Any such acknowledgment or payment as is referred to in section 26 or the proviso to section 16 of this Act may be made by the agent of the person by whom it is required to be made under that section, and shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made [28] It is incomplete if reference is not made to the case of Wee Tiang Teng v. Ong Chong Hooi & Anor [1978] 1 LNS 234; [1978] 2 MLJ 54, where the Federal Court held that – "There are three kinds of acknowledgments:

an acknowledgment by the debtor that a debt subsisted in the past but not at the time of the acknowledgment;

an acknowledgment that it subsists at the time of the acknowledgment; and

an acknowledgment that it may subsist in the future but not at the time of the acknowledgment". [29] In Ssangyong Engineering & Construction Co Ltd v. Tridant Engineering (M) Sdn Bhd and another case [2015] 1 LNS 1237; [2015] MLJU 1124, where Mary Lim J (as the ladyship was) held that – [57] Therefore, for an acknowledgment to be valid, sections 26 and 27 require the acknowledgment of the right of action or the right to claim upon the debt must be: i. in writing; ii signed by the person making the acknowledgment; and iii. made to the person whose "title or claim is being acknowledged. [58] This means that the acknowledgment of the debt which is a promise to pay the debt due must be in a written form and it must be by the person who owes the obligation in the first place. That acknowledgment must then be made to the person who has the right of action or to whom the debt is owed. This exchange is usually kept within the immediate parties. But there may be instances where third parties are involved. In such a situation, can there still be a valid acknowledgment if it is made by a third person to a third person. [30] Learned counsel for the 1st Defendant argued that P11 is not an acknowledgement of debt because the 1st Defendant’s board of directors decided that it was not binding and merely a response to the Plaintiff’s invoice (P7). With respect, I find this argument should not even be mounted by the counsel as his ground. The 1st Defendant’s board of director has no legal authority to dictate a legal counsel whether a document is a legally binding or not. [31] Looking at P11, there is no doubt that the elements of acknowledgement of debt have been fulfilled pursuant to ss. 26(2) and 27 of the Limitation Act 1953 as –

P11 was duly signed by SD6 being the Director General of the 1st Defendant and the debtor to the debt;

in P11, SD6 clearly acknowledged the debt by stating the exact figure; and

P11 was sent to the Plaintiff who was claiming the debt. [32] Accordingly, I agree with the SCJ’s finding that the cause of action was refreshed and re-commenced from the date of P11 i.e 25.5.2015. Hence, when the claim was filed on 20.11.2017, it is clearly within time. Quantum of damages [33] On the appeal against the general damages of RM20,000.00 awarded by the SCJ, I find instructive the Federal Court case Tan Kuan Yau v. Suhindrimani [1985] CLJ Rep 323; [1985] 2 MLJ 22 where Abdul Hamid Omar LP laid down a key principle on the position of an appellate court in dealing with an appeal on quantum of damages as follows: "Now, in appeal on quantum of damages, it is essential in order to come to a conclusion, to bear in mind certain principles which are well established. The appeal court is slow, indeed, disinclined to interfere with the judge's finding merely because the appeal court thinks that if the case had been before it in the first instance a lesser sum would have been awarded. Asmi CJ (Malaya) (as he then was) giving the judgment of the Federal Court in Topaiwah v. Salleh [1968] 1 LNS 161; [1968] 1 MLJ 284 said that: In order to justify reversing the trial judge on the question of the amount damages it will generally be necessary that this court should be convinced either that the judge acted on some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it entirely an erroneous estimate of the damages to which the Perayu is entitled (see Flint v. Lovell [1935] 1 KB 354). The principle that should guide this court in determining whether it should interfere with the quantum of damages is crystal clear. What is also clear is that much depends on the circumstances of each case in particular the amount of the award. In a particular case therefore it is for the appeal court to consider whether in the light of the circumstances of that case there is an erroneous estimate of the amount of the damage in that, either there was an omission on the part of the judge to consider some relevant materials, or he had admitted for purpose of assessment some irrelevant considerations. If the court is satisfied or convinced that the judge had acted upon wrong principle of law then it is justified in reversing; indeed it is the duty to reverse the finding of the trial judge.". [34] In Mokhtaruddin Abdullah & Anor v Norizan Rosdi & Ors [1998] 1 LNS 248 Abdul Wahab Patail J (as he then was) held that – “A long line of binding authority has established that an appellate Court would be slow to interfere with the award. In Tan Kuan Yau v. Suhindrimani [1985] CLJ Rep 323; [1985] 1 CLJ 429; [1985] 2 MLJ 22 SC, applying Greenfield v. London and North Eastern Railway Company [1945] KB 89, which held that the principle is not whether the appellate Court might have given rather more or rather less, but only if the trial judge had omitted some relevant consideration or admitted some irrelevant consideration or if the amount is so excessive or insufficient as to be plainly unreasonable.”. [35] In Rasidin Bin Partorjo v. Frederick Kiai [1976] 1 LNS 123 Wan Suleiman FCJ when delivering the court decision had said this – “The principle upon which an appellate court will interfere with an award of damages made by a judge sitting alone has been stated by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd (2) at pp 616-617 as follows: Where the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer LJ in Flint v. Lovell. In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court to interfere, whether on the ground of excess or insufficiency. Thus the appellant here has to convince us that the learned trial judge has acted on a wrong principle of law, or has misapprehended the facts, or has for other reasons made a wholly erroneous estimate of the damage suffered.”. [36] In Amar Singh v. Chin Kiew [1960] 1 LNS 5; [1960] 26 MLJ 77, Thompson CJ (as he then was) held – ".....The fixation of damages is so largely a matter of opinion or of impression that differences of calculation or assessment are to be expected. It is an exercise of judicial discretion. Merely disagree with the figure arrived at by the trial judge is no ground for interference unless it is wholly erroneous estimate.................." [37] Therefore, it is incumbent upon this Court to ascertain whether the 1st Defendant had established that the learned SCJ had erred or plainly wrong in assessing the quantum of general damages awarded to the Plaintiff. [38] Looking at the grounds of judgment, learned SCJ awarded such amount after taking into consideration to the tax claim by Lembaga Hasil Dalam Negeri of RM81,000.00 against the Plaintiff. At the same time the Plaintiff had suffered severe financial difficulty due to the failure of the 1st Defendant to pay the claimed debt within time. [39] On this note, I agree with the learned SCJ that the Plaintiff had been suffering financial problem since 2008 when the invoice P7 was issued. For a company like the Plaintiff, every single money received is no doubt very important for the survival of the company. Thus, I find that the amount awarded by the SCJ is reasonable and should not be disturbed. Conclusion [40] Based on the 1st Defendant’s pleadings and submissions, it is my view that the 1st Defendant was scrapping the bottom of the barrel in its attempt to convince this court here and below that the Plaintiff was not entitled to the money just because there was no written contract between them despite the Technical Videos were duly received and used by the 1st Defendant. The 1st Defendant’s nonchalant attitude towards the Plaintiff’s claim for its hard-earned money can be seen as the invoice P7 was issued since 2008 alas not paid until today. [41] Further, I find that it is blatantly unfair for the 1st Defendant being a statutory body to enjoy the fruit of success alone from the Plaintiff’s hard works by taking advantage of the lack of documents which the 1st Defendant admittedly agreed that those documents should be prepared prior to the Plaintiff’s service be rendered. The short of time as to rush for the launching of MAHA 2008 which led the proper documents could not be prepared on time is not a cogent excuse to deny the payment of service which was duly rendered. [42] If the 1st Defendant is let off scot-free, it would send a wrong signal to the public at large when the 1st Defendant had duly received the Plaintiff’s Technical Videos and used them during a well-known mega showcase but now used the reason of insufficient documents which are required for its own internal financial arrangement and lack of written agreement to evade the payment. [43] As a conclusion, I am guided by the Court of Appeal decision in Goh Bak Ming v Yeoh Eng Kong & Other Appeals [2019] 3 MLRA 56 where it was held that the appellate court should not interfere with the finding of the court below unless that court is shown to be plainly wrong in arriving at its decision or there has been no or insufficient judicial appreciation of the evidence (also see Ming Holdings (M) Sdn Bhd v Tuan Syed Azahari bin Noh Shahabudin & Anor [2010] 4 MLJ 577; [2010] 6 CLJ 857 and Lee Ing Chin v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97). [44] In Ng Hoo Kui & Anor v. Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 10 CLJ 1; [2020] 12 MLJ 67, Zabariah FCJ when delivering the judgment of the court had said– [148] Given the aforesaid, we form the view that rather than adopting a rigid set of rules to demarcate the boundaries of appellate intervention insofar as findings of fact are concerned, the "plainly wrong" test as espoused in decisions of this court should be retained as a flexible guide for appellate courts. As long as the trial judge's conclusion can be supported on a rational basis in view of the material evidence, the fact that the appellate court feels like it might have decided differently is irrelevant. In other words, a finding of fact that would not be repugnant to common sense ought not to be disturbed. The trial judge should be accorded a margin of appreciation when his treatment of the evidence is examined by the appellate courts. [45] Having considered the matter carefully and having due regard to the comprehensive written submissions as well as the oral clarification, the court find that there is no appealable error to warrant any appellate interference in this case. Thus, I dismiss the 1st Defendant’s appeal with costs Dated: 22.9 .2023 -SIGNED- (SHAMSULBAHRI BIN HAJI IBRAHIM) Judge, High Court of Malaya, Johor Bahru Counsels: For the Appellant – Izzat Zamri (Ammera Hadi and Aeren Lee with him); Messrs. Tan Norizan & Associates For the Respondent – Alex Anton Netto (Lim Li Hong with him); Messrs. Anton & Chen Cases referred to:  Amar Singh v. Chin Kiew [1960] 1 LNS 5; [1960] 26 MLJ 77  Bekalan Sains P & C Sdn Bhd v. Bank Bumiputra Malaysia Bhd [2011] 1 LNS 232; [2011] 5 MLJ 1  Lee Ing Chin v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97  Ming Holdings (M) Sdn Bhd v Tuan Syed Azahari bin Noh Shahabudin & Anor [2010] 4 MLJ 577; [2010] 6 CLJ 857  Mokhtaruddin Abdullah & Anor v Norizan Rosdi & Ors [1998] 1 LNS 248  Ng Hoo Kui & Anor v. Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 10 CLJ 1;  Rasidin Bin Partorjo v. Frederick Kiai [1976] 1 LNS 123  Ssangyong Engineering & Construction Co Ltd v. Tridant Engineering

(M) Sdn Bhd and another case [2015] 1 LNS 1237; [2015] MLJU 1124  Tan Kuan Yau v. Suhindrimani [1985] CLJ Rep 323; [1985] 2 MLJ 22  Wee Tiang Teng v. Ong Chong Hooi & Anor [1978] 1 LNS 234; [1978] 2 MLJ 54 Legislations referred to:  Limitation Act 1953 - Ss. 26(2) & 27