Md Salleh bin Sajida v Y.A.M Tunku Zabedah Aminah Maimunah Iskandariah (JA-12ANCvC-15-03/2021)

The facts of this case are quite straight forward. The Plaintiff and Defendant were friends since 1980 when both worked at a company called “Mados”. 15 The Defendant was an accountant whereas the Plaintiff (being the daughter of the late Almarhum Sultan Iskandar AlHaj) was the general manager. Sometimes in early 1998, the Defendant (who owned a company called JOJOS Production) approached the Plaintiff and requested for a personally loan of RM400,000.00. He 20 had requested the loan cheques to be made in the name of his company on the excuse to avoid double handling and the loan was needed urgently. He promised to repay once he had made some profits from his company. Since it was a friendly loan, no documentation was ever prepared by the parties. It was based on 25 trust.

Based on trust and friendship, the Plaintiff gave two (2) cheques amounting to RM400,000.00 personally to the Defendant (at the request of the defendant, the cheques were to be made out to his 30 company) but eventually he failed to repay the sum and later on he was declared a bankrupt. The loan cheques were collected personally by the Defendant with remarks “Taken on 28/2/98 with 1,000,000 thanks. Regards, signature”.

The Plaintiff had on many occasions requested the Defendant to repay the loan especially after he was discharged from his bankruptcy. The Defendant has said he will pay the loan once he sold his land but again failed to do so. Later the Defendant had on 30/1/2019 wrote and gave a personal letter to the Plaintiff 5 acknowledging his RM400,000.00 loan and that he had started some business after his bankruptcy. He also prepared a payment schedule to pay installment of RM25,000.00 monthly. However, he only paid two (2) installments of RM50,000.00 but failed to complete the payment schedule as promised despite several 10 legal notices of demand issued by the Plaintiff’s lawyers. This acknowledgment letter was in fact and in law a fresh accrual of action under Section 26(2) Limitation Act 1953 which extended the limitation period.

When the Plaintiff was sued and served with the Writ, he had on the same day sent a text message to the Plaintiff and requested to settle the claim amicably. However, the matter could not be settled as the Defendant could not pay his loan. His offer to pay RM500 per month was rejected as it would take 800 months or 20 67 years to complete the payment.

The Defendant relied heavily on the Statement of Claim and 25 nothing more as their triable issues. Their main contention are based on the following:-

The loan was given to the Defendant’s company JOJOS Production (despite no evidence produced whatsoever 30 from the company’s records). The Plaintiff should have sued the company or filed Proof of Debt since the company was wound up.

(ii) The Defendant was not a guarantor to the loan purportedly given to his company. The Plaintiff had wrongly sued the Defendant.

(iii) The loan given to the Defendant was time barred under the Limitation Act 1953 as it was made beyond 6 years.

(iv) The Plaintiff together with lawyer Dato’ Ikbal Salam had misrepresented, concealed, unduly influenced and committed fraud in obtaining the Defendant to provide the Letter of Acknowledgment dated 30/12/2020 and the payment of the two (2) instalments amounting to 10 RM50,000.00. PLAINTIFF’S REPLY

Firstly, as to the allegation that the loan was given to the 15 Defendant’s company and not to him personally. This assertion is an afterthought defence and no evidence whatsoever was produced to support this allegation. At the very least, there must be some evidence of a corporate loan agreement or company records or directors minutes/resolution or some form of 20 documentation to support this allegation. There is none other than the denials as contained in the Statement of Defence. Further if the loan was given to the company as alleged, why would the Defendant personally repay two (2) installments of RM50,000.00 to the Plaintiff based on his Letter of 25 Acknowledgment dated 30/12/2020? Further the Defendant never responded to the several Notices of Demand and never raised this issue at the earliest opportunity.

Secondly, as to the allegation that the Defendant was not a 30 guarantor to the loan purportedly given to his company, the weakness of such an assertion is as explained in paragraph 10 above. The Defendant was of course not a guarantor as he was the recipient of the loan.

Thirdly, as to the issue of time bar, since the loan was given in 1998, the Plaintiff has earlier explained in the several Affidavits that the Letter of Acknowledgment and Schedule of Payment dated 30/12/2020 was in fact personally prepared and written by the Defendant (being an accountant) and therefore had in law 5 became a fresh accrual of action in respect of the loan. Further by making the two (2) installment payments of RM50,000.00, the Defendant cannot now complain of time bar since such payments were a fresh accrual which had set a new 6 years time bar effective from the letter/payment 30/12/2019. The new limit is in 10 2019 and since the action was filed in 2020, it was well within the statutory limit under Section 26(2) Limitation Act 1953.

Fourthly, on the issue of fraud and wrongful undue influence. This is a serious allegation as it is defamatory as it is disreputable. The 15 Defendant has alleged that lawyer Dato’ Ikbal Salam together with the Plaintiff had committed fraud and undue influence to get the Defendant to admit his loan via the letter of acknowledgment dated 30/12/2019 and paying the two (2) installment amounting to RM50,000.00. However, the Defendant has not produced an 20 iota of evidence to support his claim of fraud other than referring to his Statement of Claim. There is no particularization of how the fraud is said to have been committed, why the Defendant had not made a police report nor did he make a complaint with the Disciplinary Board of the Bar Council, why the Defendant did not 25 retract or withdraw the acknowledgment letter nor seek the Plaintiff to return the RM50,000.00 he had paid her towards the loan, why this serious issue was never raised when the Defendant received the notices of demand by the Plaintiff’s lawyers, why the Defendant requested to settle the loan amicably 30 after being served with the Writ and why the Defendant did not file an action in court to declare the acknowledgment letter as null and void by reason of fraud?” S/N OpfZMuYa2kqZBQN4onpkqw Page 6 of 12 [3] The learned Sessions Court judge in his grounds said: “(19) Mahkamah mendapati bahawa di dalam kes ini Plaintif telah berjaya mewujudkan suatu kes “prima facie” di mana Plaintif berhak untuk mendapatkan Penghakiman Terus tersebut 5 terhadap Defendan. Oleh yang demikian, beban kini adalah pada Defendan untuk meyakinkan Mahkamah dengan sebab-sebab atau alasan-alasan mengapa permohonan dan / atau tuntutan Plaintiff tidak patut dibenarkan. Sila rujuk kes Cempaka Finance Bhd lwn Ho Lai Ying & Anor (2006) 3 CLJ 544 dan kes Syarikat 10 Kerjasama Serbaguna Tunas Muda Sungai Ara lwn Ghazali bin Ibrahim (1985) 2 MLJ 225. Sama ada isu-isu yang dibangkitkan oleh Defendan adalah isu-isu yang perlu dibicarakan (“triable issues”)

Mahkamah mendapati bahawa Defendan telah gagal untuk menimbulkan dan membangkitkan serta mewujudkan sebarang atau apa-apa isu yang perlu atau yang harus dibicarakan (“triable issues”) untuk membantah permohonan Plaintiff di dalam kes ini. 20 Dalam erti kata yang lain, Defendan tidak mempunyai sebarang pembelaan yang bermerit dan/ atau berasas terhadap tuntutan Plaintif di dalam tindakan ini. Sila rujuk kes Malayan Insurance (M) Sdn Bhd lwn Asia Hotel Sdn Bhd (1987) CLJ (Rep) 182. 25 Kesimpulan Oleh yang demikian, Mahkamah dengan ini membenarkan Notis Permohonan Plaintif di bawah Aturan 14 Kaedah 1(1) Kaedah-Kaedah Mahkamah 2012 (Lampiran-6) bagi memasukkan Penghakiman Terus 30 ke atas Defendan dengan kos. Kos permohonan ini ditetapkan oleh Mahkamah sebanyak RM3,000.00 dan mesti dibayar oleh Defendan kepada Plaintif.” S/N OpfZMuYa2kqZBQN4onpkqw Page 7 of 12 The Law [4] The Malaysian Civil Procedure (White Book) 2018 edition states: “Ordinarily, a legal action begun by a writ of summons requires a 5 trial by calling witnesses and tendering evidence. Order 14 is a special procedure that bypasses the need for a trial to obtain judgment when a claimant has a very strong case against the defendant who has no defence to the claim. Hence the description of this provision as “summary judgment”. The idea 10 behind this procedure is to enable the claimant an efficacious, expeditious and economical way to prosecute his claim when the defendant has no defence of merit against his claim or it is very clear that the defendant is liable to the plaintiff. It is also helpful in preventing a defendant who has no hope of success from 15 delaying the claimant’s claim. Preliminary requirements—Although a claimant can apply for summary judgment under this provision as well as under Order 18 r 19(1) in the same application, the claimant has to elect which 20 provision he wants to proceed with. He cannot proceed with both simultaneously because of the distinct and incompatible nature of the remedies provided under both provisions: Bank Utama (Malaysia) Bhd v Sistem BIS Komputer Sdn Bhd [1995] 4 MLJ 45, HC. 25 Three preconditions must be satisfied for an Order 14 application:

the defendant must enter an appearance to the action; (ii) the statement of claim must be served on the defendant; and (iii) the affidavit in support of the application must comply with the 30 requirements of r 2. The court will dismiss the application if any of these preconditions are not fulfilled: National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300, FC. The S/N OpfZMuYa2kqZBQN4onpkqw Page 8 of 12 MTS2-JA-12ANCvC-15-03/2021/MS/TZ/az/nar plaintiff does not need to prove his case in a summary judgment application. Once these three preconditions are met, the burden shifts to the defendant to raise triable issues: Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 3 CLJ 544, FC. 5

An appearance by the defendant: The procedure for entering an appearance is found in Order 12. The court will dismiss such an application where the defendant has not entered an appearance or has merely entered a conditional appearance to the suit: Renofac Builder (M) Sdn Bhd v 10 Chase Perdana Bhd [1999] 3 AMR 2867; [1999] 5 MLJ 506, HC, which did not agree with Sungei Way Leasing Sdn Bhd v Sena Land Development Sdn Bhd [1989] 3 MLJ 37, HC, which ruled that filing the application before appearance had been entered was a mere irregularity. When a firm is sued 15 in the firm’s name, the entry of any one partner would suffice to ground proceedings against the firm under Order 14: Lysaght Ltd v Clark & Co[1891] 1 QB 552. Care should be taken to ensure that if the memorandum of appearance is served on a firm of solicitors they have instructions to 20 accept service. There is no valid appearance if a firm of solicitors enters an appearance for the defendant without authorisation and it can be set aside: Supreme Finance (M) Bhd v Wing Hong How [1999] 3 AMR 2789; [1999] 3 MLJ 114, CA. When a defendant enters an appearance, he is 25 precluded from raising any objection against the plaintiff’s locus standi: Lim Chon Beng v Pulau Kembar Sdn Bhd [2005] 3 AMR 349; [2005] 6 CLJ 24, HC.

Service of statement of claim: The statement of claim should 30 comply with the requirements set out in Order 18. Any defect or omission in the statement of claim cannot be corrected or supplemented by the application’s supporting affidavit: United Overseas Malayan Banking Corp Bhd v S/N OpfZMuYa2kqZBQN4onpkqw Page 9 of 12 Palm & Vegetable Oils (M) Sdn Bhd [1983] 1 MLJ 206, FC, relying on Gold Ores Reduction Co v Parr [1892] 2 QB 14; followed in UMW (Sarawak) Sdn Bhd v Kim Leong Timber Sdn Bhd & Ors [1989] 3 MLJ 177, HC, where the summary judgment application was dismissed because the plaintiff 5 failed to plead a material fact in its statement of claim; followed also in Public Bank Bhd v Tradikon Sdn Bhd [1989] 1 CLJ 1111 (where the failure to properly plead the interest rate chargeable resulted in a dismissal of the application); Bank of Commerce (M) Bhd v Tan Boon Sonn 10 @ Tan Po Lo t/a Messrs Syarikat Soon Tatt Trading & Anor [1995] 1 AMR 156; [1995] 1 CLJ 69, HC. Full particulars of a debt due must be pleaded in the statement of claim: Arab-Malaysian Merchant Bank Bhd & Ors v Court Square Pelita Sdn Bhd & Ors [2000] 5 MLJ 273, HC (the 15 court held that the failure by the plaintiff to particularise the debt due in the statement of claim means that the certificate of indebtedness cannot be regarded as being conclusive of the debt due). If the defect is one of substance, the application will be similarly dismissed: National Co for 20 Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300, FC, citing with approval Sheba Gold Mining Co v Trubshaw [1892] 1 QB 674.

The supporting affidavit—The application must be 25 supported by an affidavit that complies with Form 13. The affidavit must contain two important requirements: Firstly, it must verify the facts of the claim or the relevant portion of the claim; and secondly, it must contain the deponent’s affirmation that he believes that there is no defence to the 30 claim or part of the claim, or except as to the amount of damages claimed. Failure to include either of these requirements would result in dismissal of the application: Chai Cheon Kam v Hua Joo Development Sdn S/N OpfZMuYa2kqZBQN4onpkqw Page 10 of 12 Bhd [1989] 2 MLJ 422, HC; Pembinaan KSY Sdn Bhd v Lian Seng Properties Sdn Bhd [1993] 1 MLJ 316, HC. See however, Yap Piew Chuan v Araca Enterprise Sdn Bhd [1998] 1 AMR 645; [1998] 2 CLJ 234, HC, which took a more sensible approach by deciding that even if the 5 supporting affidavit did not expressly state para 2 of Form 13, as long as the affidavit as a whole amounts to the deponent stating that, then the failure to state it is a mere irregularity; and Fu Lian Credit & Leasing Sdn Bhd v Kim Leong Timber Sdn Bhd & Ors [1991] 1 CLJ 522, HC, which 10 held that even though the affidavits in support were not prepared in line with the provisions of r 2(1) (i.e. that there is no defence to the action except as to damages), the relief, nevertheless, was granted mainly because, on the pleadings and the evidence adduced, the points raised 15 relating to liability under the agreements were clear and unarguable. Furthermore, all that r 2(1) requires is for the deponent to state his belief that there is no defence to the claim, there is no requirement to say any more than that: Fulcrum Capital Sdn Bhd v Low Kon Yang [2003] 4 20 MLJ 509, HC. The affidavit should ensure that it complies with the requirements of affidavits generally as set out in Order 41: Metro Kajang Construction Sdn Bhd v Eka Bahtera Sdn 25 Bhd [2001] AMEJ 0219; [2001] 6 MLJ 129; [2001] 3 CLJ 951, HC, where the application was dismissed because the jurat in the supporting affidavit was defective in not complying with Order 41 r 7; and Gilbert Engineering Co Inc v Zainuddin bin Ahmad & Ors (No 2) [2003] 3 AMR 555; 30 [2003] 6 MLJ 103; [2003] 2 CLJ 39, HC, where the court dismissed the claimant’s appeal because the supporting affidavit did not substantially comply with the Order 41 provisions (even though the court was cognisant of Order S/N OpfZMuYa2kqZBQN4onpkqw Page 11 of 12 1A, it is unfortunate that it did not bear in mind Order 2 r 3 since there was ultimately no prejudice on the respondent’s part). Contrast this with MBf Finance Bhd v Hasmat Properties Sdn Bhd & Ors [1990] 1 MLJ 180, HC, where it was held that even though the deponent’s name was not 5 stated in the jurat, since it was stated at the beginning of the affidavit any doubt as to the identity of the deponent was removed by the commissioner for oaths. The general approach has been to disallow or dismiss any preliminary technical objections that cause no prejudice to the opposite 10 party or cause substantive defect to the application: see United Malayan Banking Corp Bhd v Ernest Cheong Yong Yin [2001] 1 AMR 1073; [2001] 1 MLJ 561; [2001] 2 CLJ 31, CA; and Megat Najmuddin bin Dato’ Seri (Dr) Megat Khas v Bank Bumiputra Malaysia Bhd [2002] 1 AMR 1089; 15 [2002] 1 MLJ 385; [2002] 1 CLJ 645, FC; applied in Megnaway Enterprise Sdn Bhd v Soon Lian Hock [2002] 4 AMR 4299; [2002] MLJU 433; [2003] 5 CLJ 103, HC, and Beauford Baru Sdn Bhd v Gopalan Krishnan a/l VK Gopalan [2002] 4 AMR 4462; [2002] 3 CLJ 686, HC. 20 Preliminary technical objections include: lack of substantive averments on the affirmation page (Voon Mow Chen v Menteri Dalam Negeri & Anor [1993] 2 AMR 2199; [1993] 4 CLJ 195, HC); failure to endorse the affidavit with the date of filing and affirmation (Mohd Nazir Badar Shair v Timbalan 25 Menteri Dalam Negeri & 2 Ors [2000] 3 AMR 2864; [2000] 2 MLJ 559; [2000] 2 CLJ 805, HC); failure to set out the title of the suit in the jurat (Han Euu Tiam v Phang Kui Fatt & Ors [2000] 1 AMR 690; [1999] 4 MLJ 683 [1999] 4 CLJ 395, HC); and failure to set out the jurat in strict compliance with 30 the form (Utama Merchant Bank Bhd v Dato’ Mohd Nadzmi bin Mohd Salleh [2001] 2 AMR 1687; [2001] 5 MLJ 317; [2001] 2 CLJ 235, HC).” S/N OpfZMuYa2kqZBQN4onpkqw Page 12 of 12 [5] Section 29 of the Courts of Judicature Act 1964 and O.55 r.2 ROC 2012 states that all appeals to the High Court shall be by way of re-hearing and shall be brought by giving a notice of appeal within fourteen days from the date of the decision appealed from. Based on the record of appeal filed and the written and oral submissions by the appellant and respondent, I 5 found no appealable error in the decision of the learned Sessions Court judge. There were no triable issues raised by the appellant in justifying the refusal of the summary judgment. [6] Therefore cadit quaestio. 10 Dated 11th May, 2022 -Signed- ………………………..…. 15 (ASLAM B ZAINUDDIN) JUDGE HIGH COURT IN MALAYA JOHOR BAHRU 20 Counsel for the Appellant: (Haji Abdullah Bin Abdul Mutalib) Messrs. Zamri Ibrahim & Co. 25 Advocates & Solicitors No. 31-01, Jalan Kempas 2 Kawasan Perindustrian Taman Tanah Tampoi 81200 Johor Bahru, Johor 30 Counsel for the Respondent: (Haji Syed Ismail Bin Syed Omar) Messrs. Syed Ismail & Co. Advocates & Solicitors No. 93-02 Jalan Damai 35 Taman Sri Setia 80300 Johor Bahru, Johor S/N OpfZMuYa2kqZBQN4onpkqw