Mohamad Syazwan Bin Shuhaimi v Aliff Syukri Bin Kamarzaman (BA-22NCvC-302-08/2020)

founded on a breach of contract. The amount of RM 143,000.00 was ordered to be paid by the Defendant to the Plaintiff. Thereafter the Defendant applied for leave to appeal to the Court of Appeal.

On 8.4.2025, the Court of Appeal granted leave to the Defendant to appeal, subject only to a limited issue. Thereafter, the Defendant 26/06/2025 11:21:01 BA-22NCvC-302-08/2020 Kand. 169 S/N xvivGn1pq0yioy9/cTp51w **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 filed his Notice of Appeal on 14.4.2025 to reflect the issue upon which the Defendant was allowed to appeal against the judgment of this court as follows: Yang Arif Hakim Yang Bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila membenarkan tuntutan Responden berkenaan jumlah gaji RM 3,000.00 tanpa mempertimbangkan Seksyen 69 Akta Kerja dan kes Mahkamah Persekutuan iaitu MANGGAI v GOVERNMENT OF SARAWAK & ANOR [1970] 2 MLJ 4.

The judgment hereinafter is to address the narrow point with which the Defendant was dissatisfied with the judgement of this court.

A brief statement of the background facts will throw light on the circumstances the appeal was brought.

On 1.1.2018 both the Plaintiff and the Defendant entered into an agreement titled Perianjian Perniagaan Restoran Rumahmakan Terlajak Laris. RMTL said agreement provided for the terms upon which the restaurant business was to be established and operate. Essentially, the Plaintiff was given the responsibility to manage the vendors and staff of RMTL, procurement of raw materials and supplies of RMTL as well as creating promotional materials for RMTL. It was also agreed that the Plaintiff would be entitled to 45% of the profits generated from the business. S/N xvivGn1pq0yioy9/cTp51w **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

The Plaintiff expended an amount of RM 20,000.00 and RM 120,000.00 on separate occasions for the benefit of the business.

Shortly after executing the business agreement, sometime in March 2018, parties agreed that the Plaintiff was to be paid a salary of RM 3,000.00 per month for the duration of the RMTL business. The Plaintiff received salary commencing March 2018 until the month of August 2018. He was not paid salary for the month of September 2018.

On or around 21.9.2018, the Defendant terminated the business agreement. At the trial before me, the Plaintiff claimed that the termination was unilateral, hence wrongful. The Defendant contended it was mutual.

After evaluating the evidence adduced by both parties, I found the Plaintiff had successfully established a case of wrongful termination, constituting a breach of the business agreement entered into. Based on the evidence, I also found that the Plaintiff was entitled to a refund of all monies paid to the Defendant and the RMTL business amounting to RM 140,000.00. All other claims were not allowed as it was not to be proven on the available evidence.

In addition to the above, I allowed the claim of RM 3,000.00 being unpaid salary for the month of September 2018.

The agreement to pay the Plaintiff a salary of RM 3,000.00 was not disputed. In cross-examination, the Defendant categorically S/N xvivGn1pq0yioy9/cTp51w **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 admitted the existence of an agreement. His evidence as recorded in the Notes of Proceedings was as follows: RKR : salah satu syarat perjanjian dalam perniagaan ini kedua-dua partner akan mendapat gaji bulanan 3,000? : atau tidak? PKR : Ya atau tidak? Ada gaji? Tak ada gaji? : Ada. Ya. PKR : Ada gaji? : Ada

The Plaintiff admitted he received the agreed salary of RM 3,000.00 for the months of March 2018 to August 2018. However, the payment was not forthcoming for the month of September 2018.

At the trial, the Defendant opposed the salary on the ground that it was brought in the wrong forum. It ought to have been brought in accordance with the provisions of section 69 of the Employment Act 1955 which reads: S/N xvivGn1pq0yioy9/cTp51w **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

(1) The Director General may inquire into and decide any dispute between an employee and his employer in respect of wages or any other payments in cash due to such employee under

any term of the contract of service between such employee and his employer;

any of the provisions of this Act or any subsidiary legislation made thereunder; or

the provisions of the Wages Councils Act 1947 [Act 195] or any order made thereunder, and, in pursuance of such decision, may make an order in the prescribed form for the payment by the employer of such sum of money as he deems just without limitation of the amount thereof.

[14] The Defendant further referred to the provisions of section 69B which provides for the jurisdiction of the Director General of Labour over employees whose wages exceed one thousand five hundred ringgit but does not exceed five thousand ringgit to contend that nd ambit of the Employment Act 1955. That being the case, the Plaintiff ought to have exhausted his remedy under the Employment Act 1955 first by bringing his claim to the Labour Court. [15] incompetent before this court, the Defendant referred to the case S/N xvivGn1pq0yioy9/cTp51w of Manggai v Government of Sarawak & Anor [1970] 2 MLJ 41 where the Federal Court held as follows: It is well settled law that the court will not make a declaratory judgment where an adequate alternative remedy is available (see Halsbury's Laws of England, 3rd edition, volume 22, page 749, paragraph 1611). To quote but a few authorities in support of that proposition, Lord Herschell said in Barraclough v Brown [1897] AC 615 620: the expenses by action in the High Court, he was, at all events, entitled to come to that court for a declaration that on the true interpretation of the statute he had a right to recover them. It might be enough to say that no such case was made by the appellant's claim. But, apart from this, I think it would be very mischievous to hold that when a party is compelled by statute to resort to an inferior court he can come first to the High Court to have his right to recover the very matter relegated to the inferior court determined. Such a proposition was not supported by authority, In Pasmore v The Oswaldtwistle Urban District Council [1898] AC 387 394 Earl of Halsbury L.C. said: statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one In the more recent case of Wilkinson v Barking Corporation [1948] 1 KB 721 724 Asquith L.J. said: S/N xvivGn1pq0yioy9/cTp51w and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal, and not to others. [16] Premised on the principle in Manggai the Defendant submitted that 3,000.00. [17] I must add at this juncture that the jurisdiction point was not raised in the defence. Having combed the entire lengthy Statement of Defence, I find no mention whatsoever of this point to resist the Nonetheless, as the point pertained to jurisdiction, I was prepared to treat it as a point of law, and to then consider the merit of the argument raised. [18] Having considered the arguments advanced by the Defendant, I was of the view that they are misconceived. The principle in Manggai had no application to the present facts. [19] The claim for salary was a contractual claim. It was premised on the agreement arrived at by the parties that the Plaintiff was to receive a salary with effect from March 2018. Before this court, the Plaintiff was seeking to enforce his claim based on a breach of contract to pay his salary. [20] Unlike the case of Manggai, the Plaintiff here was not seeking a remedy for a declaration. To understand the context the principle was enunciated, it is necessary to set out the facts. In Manggai, the S/N xvivGn1pq0yioy9/cTp51w plaintiff in the action in the High Court at Kuching had a dispute with the first defendant over some land situate in the district of Simanggang in the Second Division of Sarawak. This dispute was decided in the favour by a judgment of the district native court, Simanggang. The defendant then appealed to the Resident Court which allowed the appeal. [21] Under section 8(1)(d) of the Native Courts Ordinance, an appeal lies from the decision of a Resident's native court to the Native Court of Appeal. The plaintiff did not resort to an appeal to the Native Court of Appeal, but commenced proceedings in the High Court for declarations. The defendant successfully applied to strike failed to appeal to the Native Court of Appeal. The plaintiff appealed against the High Court decision. [22] In dismissing the : It was contended on behalf of the plaintiff that he was not obliged to go to the Native Court of Appeal, and that he could go straight to the High Court to have the order of the Resident's native court set aside and to ask for the necessary declarations. For this proposition he relied on the decision in Dyson v Attorney-General [1911] 1 KB 410 in which it was held that the rules of procedure which enable the court or a judge to strike out any pleading on the ground that it discloses no cause of action are never intended to apply to any pleading which raises a question of general importance or a serious question of law. It was said in this connection that the plaintiff's reason for not going to the Native Court of Appeal was that because of the proviso (c) to subsection (2) of section 8 of the Ordinance, the opinion of a judge as presiding officer in the S/N xvivGn1pq0yioy9/cTp51w Native Court of Appeal can be overriden by other members of the court. In my judgment there is no substance in any of these arguments. As pointed out by counsel for the respondents, the real issue here is whether the plaintiff should not first exhaust his remedy by way of appeal to the Native Court of Appeal. [23] The Federal Court then enunciated on the principle that where a statute expressly provide for a remedy, the remedy must be exhausted first, and it is not open to the applicant to seek his recourse in the civil courts before so doing. The relevant portion of the judgment of the Federal Court has been set out in paragraph 15 above. [24] The application of the principle in Manggai was further explained in the case of Awesome Broadcasting Sdn Bhd v MYTV Broadcasting Sdn Bhd [2024] MLJU 938, where Justice Nantha Balan (JCA) speaking for the Court of Appeal said: The Law on exhaustion of all domestic remedies before filing in Court [37] I consider the law on exhaustion of all domestic remedies before filing in Court settled law. [38] What this means is that where a statute has provided for a further internal remedy to an aggrieved party, then recourse must first be had to that grievance mechanism. In other words, the aggrieved party must exhaust that internal remedy first before running to the courts for relief. [See Pengarah Kastam Negeri Johor & Anor v. Kedai Makan Kebun Teh (Sutera Utama) Sdn Bhd & Ors and another appeal [2014] 3 CLJ 733; [2014] 4 MLJ 377 CA, Ta Win Industries (M) Sdn Bhd v. Ketua Pengarah Kastam Malaysia & Anor [2021] S/N xvivGn1pq0yioy9/cTp51w MLJU 157 at [20] and [25](c) and Malaysia Airports Sdn Bhd v. My Jet Xpress Airlines Sdn Bhd [2023] MLJU 2236 at [61]] [39] In Pengarah Kastam Negeri Johor & Anor v. Kedai Makan Kebun Teh (Sutera Utama) Sdn Bhd & Ors and another appeal [2014] 3 CLJ 733; [2014] 4 MLJ 377 (CA), Abang Iskandar JCA said; [18] Having perused that provision, we would agree with learned SFC that such recourse could only be had after the respondent taxpayer had exhausted the available remedy as provided for by Parliament within the four corners of the Sales Tax Act 1972. That would necessarily mean that the respondent taxpayer must have exhausted its appeal remedy with the Director General of Customs in respect of the impugned Notice as envisaged under s. 68 of the Sales Tax Act 1972. While s. 141N seems to suggest that the aggrieved party may go to the High Court, it does not expressly say that the aggrieved taxpayer may do so without first exhausting its remedy by appealing to the Director General. [19] Again, with regard to the statutory remedy as contained under s. 68 of the Sales Tax Act 1972 we are of the view that the position in such a case is rather trite. This court is guided by a slew of cases emanating from high authority such as Manggai v. Government of Sarawak & Anor [1970] CLJU 80; [1970] 1 LNS 80; [1970] 2 MLJ 41, Government of Malaysia & Anor v. Jagdis Singh [1987] CLJ Rep 110; [1987] 2 MLJ 185, and Robin Tan Pang Heng @ Muhammad Rizal bin Abdullah (suing as public officer at Penang Turf Club) v. Ketua Pengarah Sekerja Malaysia & Anor [2010] 9 CLJ 505; [2011] 2 MLJ 457. These cases have decided that where a statute has provided for a further internal remedy to an aggrieved party, then it would become incumbent that recourse must S/N xvivGn1pq0yioy9/cTp51w first be had to that grievance mechanism. In other words, the respondent is statutorily obliged to exhaust that remedy first before running, as it were, to the courts for what is essentially a discretionary relief. [25] In the instant case, the Plaintiff was seeking to enforce his contractual rights upon a breach. His case was independent of the remedy of seeking to refer a dispute in respect of his wages arising from any particular term of the contract of service between him and the Defendant, as provided for under section 69 of the Employment Act 1955. [26] In the light of the authorities hereinafter referred to and the provisions of section 69 of the Employment Act 1955, I was of the view that there was no legal impediment to this court hearing the breach of contract to pay RM 3,000.00 as his salary. The claim being on founded on contract, the Plaintiff was seeking to recover monetary compensation from such breach. In this instance, the damages sought to be recovered was the equivalent amount of his salary. [27] I would also add that the circumstances of his claim did not limit his remedy to seeking recourse in the Labour Court. S.69 of the Employment Act 1955 is not an internal remedy which the Plaintiff was obliged to have recourse to before filing his suit in the civil court. [28] Counsel for the Plaintiff referred to the Court of Appeal case of Lim Tze Sian v Coversight Surface Malaysia Sdn Bhd [2017] 1 MLJ S/N xvivGn1pq0yioy9/cTp51w 418 to illustrate that there was no jurisdiction hurdle to a claim for salaries being filed in the civil courts. outstanding salary and allowance court. It was only consequent upon the value of the counterclaim that the suit was transferred to the High Court. I was further persuaded on this issue. Conclusion [29] Premised on the foregoing, I allowed the Plaintiff laim for RM 3,000.00 as there was a breach of agreement to pay him for the month of September 2018. Dated : 25th June 2025 S/N xvivGn1pq0yioy9/cTp51w Counsel for the Plaintiff : Mr. Raja Kumar Raja Kandan (Messrs. Azman Davidson & Co.) Counsel for the Defendant : Mr. Hasshahari bin Johari Mawi (Mr. Mohd Rosly Khady bin Mohd Ayub Khan & Mr. Muhamad Hafizan Shafuan bin Kamarulzaman) (Messrs. Hasshahari & Partners.) S/N xvivGn1pq0yioy9/cTp51w