Muhamad Samsul Nizam Bin Sohhimi v Ninja Logistics Sdn. Bhd. (KA-12ANCvC-1-08/2024)

And Muhamad Samsul Nizam bin Sohhimi (NRIC No: 840912-02-5537))

Muhammad Faiz bin Abdullah (NRIC No: 830902-07-5451) (t/a F&S Logistics) [Reg No: 202103213282 (JM0954477-T)] --- Defendants GROUNDS OF JUDGMENT (Order 14A Application) Introduction 1. This appeal necessitates a rigorous examination of the boundary between summary judgment application and the right to a full trial. Specifically, it tests the limits of Order 14A of the Rules of Court 2012 in instances where the "material facts" are not merely disputed but are fundamentally interwoven with the legal construction of liability. The central question necessitates a determination of whether a summary determination is permissible when the very quantum of the debt and the formal execution of the underlying contract remain shrouded in inconsistency.

The Dispute between the Parties 2. During a period between August 2021 and September 2022, the Respondent was engaged for courier and delivery services to a business known as F&S Logistics.

The period of time in dispute is divided into three, comprising the different ownerships of the business from sole proprietorship to a partnership and then to a sole proprietorship again, as follows:

(i). Period A: From 31 August 2021 to 30 October 2021. During this time, the Appellant was registered as the sole proprietor of the enterprise.

(ii). Period B: From 31 October 2021 to 6 August 2022. During this period, the Appellant was registered as a partner alongside the 2nd Defendant.

(iii). Period C: From 7 August 2022 to 1 September 2022. This period is after the Appellant exited the business, leaving the 2nd Defendant as the sole proprietor

While the business relationship and the issuance of invoices spanned from 31 August 2021 to 1 September 2022, the dispute concerning the Appellant’s personal liability specifically covers the dates from 31 August 2021 to 6 August 2022 (Periods A and B).

The Respondent claims a total outstanding debt of RM171,564.78 accumulated across these dates. During the course of the proceedings, the Respondent entered a judgment-in-default of appearance against the Second Defendant, whereas for the Appellant, who was the First Defendant, an application under O. 14A r. 1 ROC 2012 was filed against him.

The learned Sessions Court Judge allowed the application and determined the Appellant’s liability to be RM164,161.10, reflecting the sums owed up until his exit from the business on 6 August 2022. The Grounds of Appeal and Contested Factual Matrix.

The Appellant claims the Sessions Court had erred in allowing the Respondent’s O. 14A application. In summary, the Sessions Court judge considered that the material facts were not in dispute, namely that the First Defendant was the sole proprietor of F&S Logistics in Period A and was a partner of F&S Logistics (when it was re-established as a partnership) in Period B. This arrangement was considered undisputed, as evidenced by records from the Companies Commission of Malaysia. Hence, the total amount claimed is legally liable to the First Defendant.

The Appellant contends that the Sessions Court had failed to consider that there were material facts to be tried and, therefore, is unsuitable to be disposed of summarily under O. 14A. Those contested facts, as alleged, are:

(i). That the Appellant had never received the invoices claimed to be issued by the Respondent.

(ii). That there were inconsistencies in the calculation of the total amount claimed when compared to the actual invoices provided through affidavits.

(iii). That the alleged contract entered into between the Appellant and Respondent was either void or irregular in the absence of the Appellant’s signature and being unstamped.

The Respondent maintains that the case is fit for determination without a full trial because the material facts are not in dispute. They argue that once the core question of law regarding liability is answered, it disposes of all issues in the case, making oral evidence or a trial unnecessary. They emphasised that the Appellant had already made judicial admissions regarding his status in the business, namely as an associate in the sole proprietorship and a registered partner in the subsequent partnership. Therefore, above all else, the material facts surrounding ownership are undisputed; only the question of legal liability required is in dispute, and thus only that question requires judicial consideration. Hence, this case was fitting to be summarily disposed of under O. 14A. Decisions and Findings of the Court 10. Having read the written submissions and having considered the oral arguments of both the Appellant and Respondent, alongside a comprehensive evaluation of the evidence, this Court allows the appeal.

The Test for O. 14A r. 1 of ROC 2012 11. It is trite law that for an application for summary judgment under O. 14A to succeed, it must be shown that the question of law posed or the construction of a document to the Court will finally determine the entire cause of the matter. This is the crux and ratio of the decision of Mohd Noor Ahmad JCA in the case of Petroleum Nasional Bhd v. Kerajaan Negeri Terengganu & Another Appeal [2003] 4 CLJ 337.

However, as with any form of disposal in a summary manner, such power must be exercised judiciously. In Thein Hong Teck & Ors v. Mohd Afrizan Husain & Another Appeals [2012] 1 CLJ 49, the Federal Court laid down the settled principle that an application under O. 14A may be resorted to only if there is no dispute between the parties as to the relevant facts. This is done by examining the pleadings filed by the parties. However, if the facts and legal issues raised are interwoven, it is not for the court to split them for separate determination; therefore, it will not be a case suitable for determination under O. 14A.

The Respondents submitted that the material facts are not in dispute. In their view, the issues of liability have already been admitted by the Appellant, where it was undisputed that the Appellant was the registered sole proprietor of F&S Logistics in Period A and a partner in Period B. Thus, the sole question that remains is whether the liability of the outstanding debt falls on the Appellant personally.

The Appellant disputes that the material facts are not undisputed. They raised two factual issues. First, the quantum of the outstanding debt stated in the Statement of Claims was alleged to be inconsistent with the sum stated in the exhibited invoices in this application. Second, the contract between the parties suffered from a mutual lack of signatures, as it was neither signed by the Appellant nor the Respondent, allegedly signed only by the Second Defendant, and was unstamped.

It is the findings of this Court that there exist triable issues in this case that negate the summary judgment application. The following are the reasons for the decision.

Quantum and Breakdown of Outstanding Debt 16. The Appellant argued that the quantum of the debt was never agreed upon and remained a question of fact that required a full trial. Their specific submissions included:

The Appellant denied the existence and the total amount of RM171,564.78 in their pleadings. They further claimed they never received the invoices used to calculate this sum.

The Appellant submitted that there were inconsistencies between the Statement of Claim and the supporting evidence. Specifically, they argued that if the court added up all the invoices provided in Exhibit ZMM-2, the total amounts to RM235,136.76, which does not equal or congruence with the RM171,564.78 claimed by the Plaintiff/Respondent in the Statement of Claim.

The Appellant challenged the underlying ‘Contract for the Provision of Courier Services’, arguing that it is invalid, irregular, and carries no legal weight in court. The Appellant's specific submissions regarding the contract's invalidity are twofold. First, there is a mutual lack of signatures on the contract, despite it being the foundational document for their business relationship. The Appellant contended that the agreement was never signed by him personally, having allegedly only been signed by the Second Defendant, nor did the Respondent sign it. Second, the Appellant argued that the contract was unstamped. They argued that if the contract is inadmissible under the Stamp Act 1949, there is no legal basis to justify the specific debt amount.

The Appellant characterised the existence and accuracy of the debt as "hypothetical or future facts" that the Respondent failed to prove through the summary procedure.

The Respondent argued that the case was suitable for summary determination under Order 14A because the relevant material facts were not in dispute. Their argument for the matter being undisputed rested on the following:

The Respondent contended that the Appellant made unequivocal judicial admissions regarding his role as the registered sole proprietor and partner during the material times. Under Section 58 of the Evidence Act 1950, these facts do not require further proof.

From the Respondent's perspective, once the Appellant admitted to being the registered owner and partner, his personal liability for the enterprise's debts became a settled question of law. The Respondent submitted that answering the legal question of liability would dispose of all issues in the case. By extension, they argued that the debt accrued during the Appellant's tenure (Period A and Period B) was a matter of record, as evidenced by the invoices issued to the enterprise.

In summary, while the Appellant argued the quantum was a contested fact, the Respondent argued that the legal status of the Appellant was the only material fact that mattered, and since that status was "undisputed," the resulting liability for the debt followed as a matter of law.

With the greatest of respect, this Court finds the Respondent's position untenable, as it rests upon a fundamental misapprehension of the nature of judicial admissions. The Respondent has conflated the admission of business registration with an admission of actual liability for the specific debt. While it is true that the Appellant made a judicial admission regarding his status as a registered owner and partner in SSM—which requires no further proof under Section 58 of the Evidence Act 1950—this merely establishes his legal relationship to the enterprise. It does not constitute an unequivocal admission of the RM171,564.78 debt itself. As submitted by the Appellant during the hearing, acknowledging one's name in the SSM records does not automatically resolve the extent to which the specific claim must be proven against him. Furthermore, it must first be noted that the issue of the quantum in their Statement of Claim not corresponding with the exhibited invoices was never addressed, whether in their affidavits or in their written submissions. Therefore, there was no explanation for this ostensibly straightforward yet profoundly consequential discrepancy.

Compounding this evidential deficiency, the Appellant raised an issue with the invoices, where there was no breakdown of costs incurred for individual dates, but instead was consolidated into a monthly charge. Because of that format, it would be impossible to determine by way of affidavit evidence when the Appellant’s liability starts and ends, for the reason that the date the Appellant ceased to become a sole proprietor was not at the end of the month but on the 6th. Thus, there was an issue with the exact costs incurred. This then becomes a situation where affidavit evidence is inadequate and would require a witness statement from the Respondent to provide a satisfactory explanation.

Besides, the Statement of Claim demands an outstanding sum of RM171,564.78, yet the invoices exhibited by the Respondent total a significantly different amount of RM235,136.76. As the Court noted during the hearing, the Plaintiff's own cause papers and affidavits do not reconcile with one another. This numerical discrepancy constitutes a material factual dispute that requires witness testimony to resolve.

It is a fundamental tenet of civil procedure that for a matter to be disposed of without a trial, the moving party must present a case that is beyond reproach in its factual consistency. Where the Plaintiff’s own affidavits present a quantum that contradicts the Statement of Claim, the court cannot "fill the gaps" or assume accuracy. Such a discrepancy is not a mere clerical error but a material dispute that strikes at the heart of the cause of action for debt.

The cause of action on which the Respondent has based their claims is one of claiming outstanding debt owed to them by the Appellant. Therefore, the issue of discrepancies in quantum is most definitely material. However, the counsel for the Respondent attempted to dismiss this during oral submissions, arguing that the amount claimed by the Appellant is higher than that claimed in the statement of claim. Thus, it would not have been logical for the Appellant to have even agreed to the higher amount. It is trite, as explained in Thein Hong Teck (supra), that for the provisions of O 14A to come into effect, the material facts must be undisputed, which in this case, does not fulfil this requirement.

This, in itself, would have been sufficient grounds for the Court to allow this appeal and find that O. 14A was not suitable to be applied. However, the addition of a witness statement was required due to insufficient affidavit evidence, further supporting my finding that this case is not suited for summary judgment and requires a trial.

This Court finds reliance on the decision in Director of Forest, Sarawak & Anor v. Racha Urud & Ors and other appeals [2017] 5 CLJ 389, where the commentary by learned authors on O. 14A in the Malaysian Court Practice (Practitioner’s Edition) was adopted. Pertinently, it was stated that the discernment of the issue of law must be from the statements of claim and defence. If there could still be a debate as to whether a cause of action exists on slightly different facts, then O. 14A is inappropriate.

This Court also finds this adopted commentary well-reasoned. From a reading of Thein Hong Teck (supra) and the analysis of judicial progress in Racha Urud (supra), it is trite and established that a party should only resort to O. 14A when the material facts are independent or otherwise, loosely related, to legal issues and the other party either admits or does not meaningfully dispute the fact that it would require further evidence or examination viva voce. This complies with the meaning of ‘without the full trial of the action’ provided within limb (a). The other party needs only to raise questions about the appropriateness of summary judgment and whether those questions would truly determine the outcome of the case without requiring further evidence.

Irregularities in the Contract 29. The Appellant premised that the ‘Contract for the Provision of Courier Services,’ which forms the primary basis of the Respondent’s claim, is invalid, irregular, and carries no legal weight in court. The Appellant's specific submissions regarding the contract's invalidity are twofold. First, there is a mutual lack of signatures on the contract, despite it being the foundational document for their business relationship. The Appellant contended that the agreement was never signed by him personally, having allegedly only been signed by the Second Defendant, nor did the Respondent sign it. Second, the Appellant argued that the contract was unstamped. They contended that if the contract is inadmissible under the Stamp Act 1949, there is no legal basis to justify the specific debt amount. This can be seen in the exhibit in Part C of the Record of Appeal at pages 272 to 283.

The Appellant also alleged that the Respondent’s failure to stamp has made the contract inadmissible as evidence. To support their second point, the Appellant cited Section 52(1) of the Stamp Act 1949, which stipulates that no instrument chargeable with duty shall be admitted in evidence or acted upon by any person authorised to receive evidence unless it is duly stamped. Thereafter, the Appellant argued that if the contract defining the relationship between the parties is inadmissible, there is no legal basis to prove the existence or accuracy of the alleged outstanding debt of RM171,564.78.

Ultimately, the Appellant contended that because the material document for the claim is legally flawed and its validity is in dispute, the case is unsuitable for summary determination and requires a full trial to resolve these issues.

It is imperative to reiterate that in the context of summary disposal, the court is confined to the "four corners" of the sworn affidavits. The Respondent’s attempt to provide viva voce explanations from the bar table regarding the contract’s lack of signatures and the numerical inconsistencies is procedurally impermissible. Submissions from the bar table cannot serve as a palliative for fatal evidential defects. These are matters of fact that must be tested through the crucible of cross-examination in a full trial.

Furthermore, this Court must stress that in applications for summary disposal, parties are strictly bound by their sworn affidavit evidence. During the hearing, the Respondent's counsel attempted to address and clarify these glaring discrepancies orally. However, it is a trite principle of law that submissions of new facts from the bar table are not acceptable as substitutes or supplements to sworn evidence. Since the Respondent completely failed to explain the numerical discrepancies and the irregularities of the contract within their own affidavits, counsel cannot now attempt to give evidence from the bar to cure these fatal defects. Such factual clarifications and explanations must come directly from the client through witness testimony in a full trial.

Moreover, it is apt to note the strict threshold required for an application under Order 14A of the Rules of Court 2012, which serves a distinctly different purpose than a standard Order 14 application. A summary disposal under Order 14A is only appropriate when the question of law or construction of a document can be decisively determined without a full trial. As established by the Federal Court in Thein Hong Teck (supra), which adopted the principles in Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2007] 6 CLJ 741, Order 14A may only be resorted to if the material facts are not in dispute. Where issues of fact are interwoven with legal issues, the Court shouldn't split the legal and factual determination. The rationale for this restraint is rooted in the principle of holistic adjudication, where facts and law are inextricably linked; any attempt to isolate a legal question for summary determination risks creating a judicial vacuum that ignores the lived reality of the commercial transaction. In such instances, the 'interweaving' of issues demands that they be untangled only through the rigorous process of a trial.

Furthermore, as reaffirmed by the Federal Court in Kerajaan Negeri Kelantan v. Petroliam Nasional Berhad & Other Appeals [2014] 7 CLJ 597, where there are serious disputes of facts involved, it is entirely inappropriate and unsuitable to have recourse to an Order 14A procedure. In the present appeal, the Plaintiff’s attempt to summarily dispose of the matter is fundamentally flawed, as the foundational contract itself is riddled with material factual disputes regarding its execution and validity that necessitate a full trial.

This Court is of the view that such an argument is not fit to be decided within the framework of an application under O 14A. The issue of signature is material and significant, as it reduces the parties' acceptance of the terms of an agreement to writing. To establish an agreement in another form, such as conduct, is a question of fact that must be established at trial and is not suitable for a summary determination under O 14A.

Concerning the issue that the contract is unstamped, under Section 52(1) of the Stamp Act 1949, an unstamped instrument is generally inadmissible in evidence and cannot be acted upon by the Court. However, the lack of stamping does not render an agreement void; it is a curable irregularity. When a Court encounters an unstamped document central to the dispute, it has a duty to ensure compliance with the revenue laws before it can render a decision on that document. (Chai Shan Foo v Tai Ooi Cheng [2021] CLJU 2706 & Emi Suhardi Mohd Fadzil v Zainap Abu & Anor; Shaffie Md

The established legal procedure provides practical avenues to regularise such documents. The Court may impound the document and send it for stamping through judicial channels, requiring the responsible party to bear the requisite stamp duty and penalties under Section 53 of the Stamp Act. Alternatively, the Court may allow counsel to stamp the document themselves before the delivery of the decision or accept a firm undertaking from counsel to have the document stamped. (Chai Shan Foo (supra), Emi Suhardi (supra), & Malayan Banking Bhd v Agencies Service

In the present case, pursuant to the Court's direction, the Respondent took the latter route. The Respondent subsequently stamped the document on an expedited basis, paying the requisite penalty and stamp duty. The stamped agreement was filed via Enclosure 25 on 30 July 2025, thereby curing the issue of inadmissibility.

Despite the Respondent's assertion that the lack of signature is a non-issue since services were rendered, this Court finds that the irregularities on the face of the contract, coupled with the unexplained discrepancies between the quantum stated in the Statement of Claim and the exhibited invoices, raise serious disputes of material fact. The threshold for summary disposal under Order 14A is high; the Court must be confident that the matter can be decided without a full trial. Because the Respondent's own cause papers and affidavits contain inconsistencies requiring further explanation through witness testimony, this case is not suitable for summary determination.

To sum up, regarding the unstamped nature of the contract, the court must balance the strictures of Section 52(1) of the Stamp Act 1949 with the principle that such omissions are curable irregularities. While the document remains inadmissible until the State's revenue interest is satisfied, the subsequent stamping and payment of penalties under Enclosure 25 effectively purged this specific inadmissibility. However, this "cure" does not extend to the separate issue of the missing signatures, which remains a contested fact regarding the consensus ad idem (meeting of the minds). The subsequent stamping merely satisfies the administrative requirements of the State; it does not, and cannot, retroactively provide the objective evidence of mutual assent that is missing due to the absence of the Appellant’s signature. Under the objective theory of contract, the Court cannot infer a meeting of minds where the foundational instrument of the relationship remains formally unexecuted by the party sought to be charged.

Therefore, for the above reasons, the Court is unable to concur with the Respondent that the unsigned contract is completely immaterial when compared to evidence of services delivered and received.

Other Considerations: Liability of the Appellant 43. For completeness, the Court will also address the issue of the liability of the Appellant. It is trite that a sole proprietor and a partner bear the liability of their chosen enterprise. A sole proprietor or partner does not benefit from possessing a separate legal entity akin to a company (see Global Built Sdn Bhd v LKL Ceiling Enterprise & Anor [2022] 1 LNS 1507 & HT Maltec Consultants v. Malaysian Resources Corporation Berhad & Ors [2015] 1 LNS 68). Debts incurred when the person is registered as either a sole proprietor or a partner will follow the person even after their exit from the venture and even after death, as creditors may claim their share and have their debt repaid from the estate. This principle remains beyond judicial controversy.

Further, the Appellant's contention that entering a judgment against him, when a Judgment in Default had already been obtained against the Second Defendant, amounts to 'double recovery' is misconceived. It is an established principle of law that partners are jointly and/or severally liable for the partnership's debts. The fact that a judgment has been obtained against one partner does not preclude a judgment from being entered against another for the same debt. This position is supported by the Federal Court in Lembaga Kumpulan Wang Simpanan Pekerja v Edwin Cassian a/L Nagappan @ Marie [2021] 5 MLJ 253 and the Court of Appeal in Kejuruteraan Bintai Kindenko Sdn Bhd v Fong Soon Leong [2021] 2 MLJ 234, which affirm that judgment debtors in such circumstances are jointly and severally liable for the amount adjudged. Therefore, they are both individually liable for that amount, and proceeding against the Appellant does not constitute a double recovery.

This was indeed the sole consideration of the Sessions Court judge, and the reason for their decision to allow the application. Regrettably, the court of first instance failed to account for the fact that there were indeed disputed issues (as mentioned earlier) and that the question of liability cannot be decided without a complete set of facts regarding the outstanding amount and the validity of the contract between the parties, which requires viva voce evidence. Conclusion 46. Ultimately, the threshold for summary disposal under Order 14A is high; the Court must be satisfied that the case is truly suitable for determination without the "full panoply" of a trial. In this instance, the confluence of an unsigned contract and an irreconcilable quantum creates a factual matrix that is too dense for summary adjudication. To split the legal liability from these disputed facts would be "highly undesirable" and contrary to established Federal Court precedent.

Hence, upon careful consideration of the pleadings, submissions, and exhibits, this Court finds that the Appellant has successfully demonstrated that there are disputed material facts which warrant the dismissal of the summary disposal application under Order 14A of the Rules of Court 2012. There are certainly serious disputed facts that require further examination in a full trial.

For the foregoing reasons, the Court finds merit in the Appellant's arguments. The appeal is hereby allowed with costs, and the matter is to be remitted to the Sessions Court for a full trial. Dated: 15th March, 2026 ..................................................................................... YA Dr. Hj. JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT OF MALAYA ALOR SETAR For the Appellant : Muhammad Irham bin Rizwan Arif Messrs. M. S. Nizam & Co Advocates & Solicitors For the Respondent : Kenneth Koh, Afiq Iskandar & Goay Kah Kah Messrs. Xavier & Koh Partnership Advocates & Solicitors Authorities Cases Chai Shan Foo v Tai Ooi Cheng [2021] CLJU 2706 Director of Forest, Sarawak & Anor v. Racha Urud & Ors and other appeals [2017] 5 CLJ 389 Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2007] 6 CLJ 741 Emi Suhardi Mohd Fadzil v Zainap Abu & Anor; Shaffie Md Hassan (Third Party) [2026] CLJU 211 Global Built Sdn Bhd v LKL Ceiling Enterprise & Anor [2022] 1 LNS 1507 HT Maltec Consultants v. Malaysian Resources Corporation Berhad & Ors [2015] 1 LNS 68 Kejuruteraan Bintai Kindenko Sdn Bhd v Fong Soon Leong [2021] 2 MLJ 234 Kerajaan Negeri Kelantan v. Petroliam Nasional Berhad & Other Appeals [2014] 7 CLJ 597 Lembaga Kumpulan Wang Simpanan Pekerja v Edwin Cassian a/L Nagappan @ Marie [2021] 5 MLJ 253 Malayan Banking Bhd v Agencies Service Bureau Sdn Bhd & Ors [1982] 1 MLJ 198 Petroleum Nasional Bhd v. Kerajaan Negeri Terengganu & Another Appeal [2003] 4 CLJ 337 Thein Hong Teck & Ors v. Mohd Afrizan Husain & Another Appeals [2012] 1 CLJ 49