Pedoman Asli Sdn Bhd v Majlis Agama Islam Negeri Johor (JA-21NCvC-20-04/2021)

The Plaintiff’s (“P”) claim against the Defendant (“D) is principally predicated on an alleged breach of contract procedure and breach of promise to compensate purportedly committed by D against P relating to a project mandated to P by the State Government of Johor to relocate the existing orphanage home known as Rumah Barkat Anak-Anak Yatim currently stood on D’s land in Bukit Chagar, Johor to a new location elsewhere in Johor Bahru (“the relocation project”). The relocation project would also include the building and construction of a new orphanage home by P on the new location as replacement for the existing one. 18/04/2025 17:24:06 JA-21NCvC-20-04/2021 Kand. 76

In the statement of claim, P specifically quantified an amount of RM10,000,000.00 which P alleged D had promised to pay as compensation to P due to certain breach of procedure committed by D which led to the termination of P’s mandate for the relocation project. Apart from the said compensation, P also seek general and special damages and costs against D.

Originally, this suit was instituted at the Kuala Lumpur High Court. It was then transferred to this Court via order dated 21.04.2021.

During trial, the following witnesses gave evidence for P: -

Tengku Reza Shah Bin Tengku Chaidzir Shah (SP1)-P’s representative;

Zulkifli Bin Hassan (SP2)-Architect;

Dato’ Ravinder Singh Sodhi (SP3)-P’s former solicitor [5] The following witnesses gave evidence for D: -

Dato’ Haji Rofiki Bin Dato’ Haji Shamsuddin (SD1)-D’s former director;

Dato’ Haji Nooh Bin Gadot (SD2)-D’s advisor and former Mufti State of Johore. [6] All documents filed in court were agreed by the parties to be of Part B, i.e. not disputed of their existence but the contents will be subject to cross-examination of witnesses during trial. [7] At the conclusion of the trial and after having heard submissions advanced by counsel for both parties, this Court dismissed P’s action with costs of RM30,000.00 (subject to allocator fees) to be paid by P to D. [8] P has since filed its appeal to the Court of Appeal against the said decision. [9] The followings are the Court’s grounds of judgment. Salient facts [10] The undisputed facts of the case would narrate that on 25.6.2007, the State Government of Johor via the Johore State Executive Council (EXCO) had approved and mandated P to undertake a project for the relocation of the existing orphanage home known as Rumah Kebajikan Anak-Anak Yatim Bukit Chagar, Johor which stood on a piece of Wakaf land held under trust by D (the “Bukit Chagar land”) to another location identified by the State Government of Johor as Lot PTB 22073 and PTB 22074 situated in Mukim Bandar, Johor Bahru [see: Kertas Tindakan Majlis Mesyuarat Kerajaan (EXCO) Johor: Kelulusan Exco dated 4.7.2007 in Agreed Bundle of Document]. [11] Among the terms of the said approval, once P had completed the building, construction and delivery of the new orphanage home to D, D in turn will have to give way for the Federal Land Commissioner to apply for the Bukit Chagar land for the purpose of the land to be redeveloped by the Federal Government into a housing project meant for senior police officers of the Royal Malaysia Police in Johor Bahru. [12] The said housing project on the other hand, will be in a form of a design and built contract to be awarded via direct appointment to P by the Federal Government through the Ministry of Home Affairs (see: Memo Setiausaha Kementerian Keselamatan Dalam Negeri: Keputusan YAB Menteri KDN dated 4.9.2007 in Agreed Bundle of Document). [13] D, being a statutory body incorporated under Clause 4(1) Johore Administration of Islam Enactment 2003 (“Enactment 2003”), among other functions, has been entrusted with various functions which include the capacity to enter into contract and to hold properties under its name, all subject to or in accordance with the Syaria law. [14] However, due to certain other development works that were carried out around the area, Lot PTB 22073 and PTB 22074 were later found to be not suitable for the relocation project. Hence P was required by the State Government of Johor to work out with the land office to look for another suitable location within Johor Bahru as substitute. [15] The land substitution process turned out to be not an easy task. Since there was a prolong process even in finding a suitable location, P subsequently informed D vide letter dated 11.10.2013 that they were unable to continue with the relocation project and instead had handed over the said project to another company known as Langkah Indera Sdn Bhd (LISB). [16] In a letter dated 13.02.2014 by D to P, D had expressed their non-objection on LISB taking over conduct of the relocation project but with reservation that P need to obtain consent from the Johore State EXCO before proceeding with the matter. [17] P did not apply for any consent from Johore State Exco as they were being requested. Although no consent obtained, it would appear from the evidence that LISB continued to undertake the works left by P. This is confirmed through SP2 who originally was P’s consultant architect that continued to provide the same professional services to LISB for the relocation project. [18] It was discovered later by P that LISB too had also failed to resolve the land substitution issue. As a result, P issued a letter dated 07.07.2015 to D informing that P had put on hold the assignment of the relocation project to LISB. [19] Subsequently, P vide letter dated 14.11.2016 informed D that they wished to continue with the relocation project and that their previous letter dated 11.10.2013 relating to the appointment of LISB is no more applicable. P then proceeded to revoke LISB’s appointment. [20] Despite the said revocation, LISB continued to engage with D by submitting progress reports and making proposals for new locations for the relocation project. P then claimed a “breach of procedure” was committed by D when D kept on dealing with LISB in relation to the said reports and proposals without P’s consent, instruction and/ or informing P beforehand. [21] A meeting then took place on 22.01.2017 between D, P and LISB for the purpose of resolving the issues between P and LISB. It was alleged by SP1 that during the meeting, SD2 for and behalf of D had agreed to compensate P for the sum of RM 10,000,000.00. SD2 denied this vehemently in his evidence before the court. [22] On 30.08.2017, the Johore State EXCO decided to terminate P’s appointment for the relocation project. The same was communicated to P by D’s solicitors via letter dated 01.11.2017. P’s claim does not disclose a valid cause of action against D [23] This Court firstly finds that P’s claim does not disclose a valid cause of action against D. The basis is that D is not a party who either appointed P to undertake the relocation project or the one who terminated P’s appointment. There is also no written agreement signed between P and D or the State Government of Johor for that matter. Further, it was not D who was involved in the arrangement for the construction of the housing project for senior police officers in Bukit Chagar Land, which is a project by the Federal Government. [24] Now, even if D will have to transfer its Bukit Chagar land to P upon completion of the new orphanage home, the Court does not think that that per se would qualify as consideration to form a contract between P and D since P from the facts had failed even to secure a substitute land for the new orphanage home to be built. [25] Thus, on ground of privity P cannot enforce the contract for the relocation project against D, and so this Court holds. [26] The exposition of the law on privity of contract can be found in Kepong Prospecting Ltd v Schmidt [1968] 1 MLJ 170, where it was held by the Privy Council that: - “The 1954 agreement was, as has been stated, made between Tan (acting by Schmidt as his attorney) of the one part and the appellant company of the other part. It was argued that Schmidt had no power under the power of attorney to enter into the agreement on behalf of Tan, but their Lordships find no difficulty in holding that the power of attorney was amply wide enough in its terms to permit this. The real question which arises as to this agreement is whether it could be enforced by Schmidt who in his personal capacity was not a party to it. In the first place there can, in their Lordships' view, be no doubt that if the agreement were governed by English Law, Schmidt would be unable to enforce it. Their Lordships need, on this point, do no more than state their agreement with the judgment of the Federal Court which correctly stated the law from well-known passages in the opinions of the House of Lords in Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge & Co. Ltd. [1915] AC 847 at p. 853 and Scruttons Ltd. v. Midland Silicones Ltd. [1962] AC 446 at p. 468. But it was suggested that in this respect the law of Malaysia differed from the law of England in admitting the principle of jus quaesitum tertio. Their Lordships are of opinion that the appellant company failed to make good this contention. Their Lordships were not referred to any statutory provision by virtue of which it could be said that the Malaysian law as to contracts differs in so important a respect from English law. It is true that s. 2(d) of the Contracts (Malay States) Ordinance gives a wider definition of "consideration" than that which applies in England particularly in that it enables consideration to move from another person than the promises, but the appellant was unable to show how this affected the law as to enforcement of contracts by third parties, and it was not possible to point to any other provision having this effect. On the contrary paras (a), (b), (c) and (e) support the English conception of a contract as an agreement on which only the parties to it can sue. Reference was made to certain Indian decisions on the Indian Contract Act on which the Contracts (Malay States) Ordinance is based. These were Subbu Chetti v. Arunachazam Chettiar [1930], ILR 53 Madras 270 (where however it was said that the balance of authority is in favour of the view that a stranger to the contract cannot without more sue to enforce it) and Khirod Behari Dutt v. Man Gobinda AIR [1934] Cal 682. But other decisions in a contrary sense were cited which appeared to their Lordships to be more authoritative: their Lordships refer to decisions cited in Subbu Chetti v. Arunachazam Chettiar and in Pollock and Mulla on the Indian Contract Act, 6 Edn., pp. 21 ff and to two decisions so recent as 1957 (Protapmull Rameswar v. State of West Bengal. (1957), 67 CWN 78 and Babu Ram v. Dhan Singh AIR [1957] Punjab 169. These, in their Lordships' view, confirm that the law was correctly stated by Sir John Beaumont CJ in the Bombay case of National Petroleum Co. Ltd. v. Popatlal. AIR 1936 Bom 344. In a passage, which though strictly obiter, was based on a full argument and consideration of the cases, the learned CJ expressed the view that Khirod Behari Dutt v. Ma Gobinda was opposed to established principle and authority. An argument on this legal issue was, so their Lordships were informed, submitted to the Federal Court: no reference to it appears in their judgment and their Lordships must assume that they did not accept it. The appellants failed to persuade their Lordships that they were wrong. The 1954 agreement was therefore in their Lordships' opinion, not enforceable by Schmidt against the appellant company, and it is in the light of this that consideration must be given to cl 10 of the consent order.”. [27] Refer also to Glomac Alliance Sdn Bhd v Nordin Bin Md Zain [2023] 3 MLJ 393 (Court of Appeal) page 404: - "[35] The law of privity of contract is well settled. The landmark case of Kepong Prospecting Ltd & Ors v Schmidt; [1968] 1 MLJ 170, the Privy Council in its judgment affirms the doctrine of privity of contract in the Contracts Act 1950. According to Kepong Prospecting Ltd, a person who has provided a valid consideration under s. 2(d) of the Contract Act 1950 cannot enforce a contract if the person is not a party to the contract ..." [28] From the evidence, it is undisputed that P’s appointment to undertake the relocation project was made by the Johore State Government via the Johore State Exco (see: “Kertas Tindakan Majlis Mesyuarat Kerajaan (EXCO): Kelulusan Exco”, supra). This was even admitted by SP1 in cross-examination: - “Faizal (DC): Tak, dengar soalan saya betul betul. Saya cadangkan, tuan kena setuju atau tidak setuju bahawa perlantikan Plaintif untuk membuat kompleks rumah anak yatim dibuat oleh majlis mesyuarat kerajaan atau exco negeri johor. Setuju atau tidak? Tengku (PW-1): Setuju” [29] From the same document, it is clear to the Court that the contract is intended to be between P and the Johore State Government where D is only the recipient of the new orphanage home. Whatever arrangement that the Johore State Government may have or have had relating to the Bukit Chagar land held by D remains a matter or arrangement between the Johore State Government and D which P is not privy to. D is only required to transfer the Bukit Chagar land to the Federal Land Commissioner upon completion of the construction and delivery of the new orphanage home by P to D. [30] In this regard, should the Court make a finding that there exists an agreement between P and D, that would akin to the Court reconstructing the agreement originally between P and the Johore State Government or making assumptions on the type of contract the whole episode between P, D, the State Government of Johor and the Federal Government should entailed. This is certainly untenable in law since it is not the duty for the Court to make contract for the parties. In this regard, it is instructive to refer to Aseambankers Malaysia Bhd & Ors v Shencourt Sdn Bhd & Anor [2014] 4 MLJ 619 where it was held by the Court of Appeal that: - “[95] I venture to say that judges are not empowered to add new terms to the contracts where the parties have not expressed them. It is advisable that judges should refrain from embarking on a reconstruction of contracts where the parties have agreed to sign them. Judges have no rights to make contract for the parties. Their duty is simply to interpret contracts and not add new terms to it." [31] Having said that, the Court is mindful of the fact that D is a trustee empowered under Enactment 2003 to deal with Waqf properties under its’ name which include the Bukit Chagar land. This was also from the evidence by SP1 during cross-examination: - Ok, terima kasih. Saya cadangkan tanah tersebut adalah sekeping tanah wakaf. Setuju atau tidak. PW-1: Setuju. Terima Kasih. Saya cadangkan juga kepada Tuan bahawa Defendan atau Majlis Agama Islam Negeri Johor adalah pemegang amanah tunggal serta pemilik berdaftar semua tanah wakaf di negeri Johor. Setuju atau tidak? PW-1: Setuju.”. [32] However, the Court is of the view that the said fact per se could not be a basis to make D liable for the actions of the Johor State Government in respect of the appointment or termination of P in relation to the relocation project. D is obviously a legal entity on its own separate from the Johor State Government, hence their conducts ought to be treated separately. Thus, based on the facts and circumstances of the case, the attempt by P to make D liable for any losses purportedly suffered by P arising from the inability of P to continue with the relocation project must be rejected for want of evidence relating to the arrangements between D and the State Government of Johor in relation to the Bukit Chagar land. [33] In view of the above, this Court finds that there is not in existence a factual situation which entitled P to obtain from court a remedy against D although P might have been affected by the decision of the State Government of Johore in relation to the relocation project. Accordingly, no valid cause of action is disclosed by P against D. [34] In Government of Malaysia v Lim Kit Siang; United Engineers

(M) Bhd v Lim Kit Siang [1988] 2 MLJ 12, the Supreme Court (as it was then) had judicially defined ‘cause of action’ as follows: - “What then is the meaning of "a cause of action"? " A cause of action" is a statement of facts alleging that a plaintiffs right, either at law or by statute, has, in some way or another, been adversely affected or prejudiced by the act of a defendant in an action. Lord Diplock in Letang v. Coopar [1965] 1 QB 232 at page 242 defined "a cause of action" to mean "a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person". In my view the factual situation spoken of by Lord Diplock must consist of a statement alleging that, first, the respondent/plaintiff has a right either at law or by statute and that, secondly, such right has been affected or prejudiced by the appellant/defendant's act.” [35] Further, for reasons best known to P, no action was taken by P against the State Government of Johore. This was confirmed when SP1 said the following: - “DC: Saya cadangkan setakat ini, Plaintif tidak mengambil sebarang tindakan guaman terhadap EXCO Kerajaan Negeri Johor. Setuju atau tidak? PW-1: Setuju.”. [36] Instead, P tried to rely on the alleged continuance of engagement between D and LISB for the relocation project as the basis of its instant action. [37] Now, it must be recalled from the evidence that LISB is an entity introduced to D by P themselves. Paragraph 3 of P’s letter to D dated 11.10.2013 (Agreed Bundle) reads: - “3. Sehubungan dengan itu, kami Pedoman Asli Sdn Bhd dengan ini ingin memaklumkan kepada pihak Y.B bahawa kami telah menyerahkan segala kuasa dan hak kelulusan projek tersebut kepada Langkah Indera Sdn Bhd (LISB) sepenuhnya. Justeru itu, LISB berhak untuk menjalankan segala urusan yang berkaitan dengan pihak MAIJ dan PASB tidak lagi terlibat dan mempunyai sebarang kepentingan dengan projek pembangunan di atas.” [38] Thus, it is the Court’s view that the act of D in not objecting to LISB’s appointment does not affect or change the character of D being not the party who appointed and mandated P for the relocation project. The subject matter of the assignment between P and LISB remains the mandate given by the State Government of Johor for the relocation project. [39] In addition, D in its letter dated 13.02.2014 (Agreed Bundle) had even reminded P to obtain the approval from the Johore State Government with regards to the assignment of the project to LISB. The relevant paragraph in the said letter reads: - “4. Untuk makluman pihak Tuan, Majlis Mesyuarat Kerajaan Negeri Johor (Ex-Co) bertarikh 25 Jun 2007 telah bersetuju menerima Syarikat Pedoman Asli Sdn Bhd bagi melaksanakan Cadangan Pembangunan tersebut tetapi melalui taklimat yang telah diberikan oleh pihak Tuan pihak Majlis mendapati Syarikat tersebut telah diserah dan diberi kepada Syarikat Langkah Indera Sdn Bhd. Justeru, pihak Syarikat Pedoman Asli Sdn Bhd diminta untuk mendapatkan kelulusan daripada Majlis Mesyuarat Kerajaan Negeri Johor (Ex-Co) terlebih dahulu.”. [40] The importance of obtaining such approval was even acknowledged by P’s former solicitor’s in its letter dated 18.07.2017 sent to LISB (Agreed Document) informing the withdrawal and cancellation of P’s assignment of the project to LISB. [41] Thus, since P did not obtain any approval from Johor State Exco, P should not be allowed to take advantage of their own shortcoming to build a case against D on the pretext of D’s continued engagement with LISB. Refer to Pentadbir Tanah Daerah Petaling v Swee Lin Sdn Bhd [1999] 3 CLJ 577 (Court of Appeal):- “Quite apart from the construction of para. 1(3)(b) of the First Schedule, there is a principle of great antiquity that a litigant ought not to benefit from its own wrong. Although of universal application, it has been restated when applied to a particular context. For example, the principle when applied in the context of the law of contract may be formulated as follows: a party ought not to be permitted to take advantage of his own breach.”. [42] It is further apparent from the facts that P and LISB had an internal issue between them. The said issue can be seen in P’s letter dated 07.07.2015 to D where P had put on hold the assignment of the project to LISB. [43] In the said letter dated 07.07.2015, the issue was highlighted as what was said at paragraphs 11, 12 and 13: - “11. Lanjutan daripada itu pihak kami ada membuat perbincangan dengan LISB pada 26/6/2015 mengenai 2 perkara iaitu: -

11.1 Perihal tanah gentian (PTB 24025); dan 11.2 Permohonan kami kepada Majlis Mesyuarat Kerajaan (EXCO) untuk memindah kuasa.

Namun demikian hasil perbincangan ini pihak LISB telah secara lisan mengatakan bahawa pihak Pedoman Asli tidak perlu membuat permohonan untuk kelulusan kepada Kerajaan Negeri (EXCO).

Oleh yang demikian kami ingin memaklumkan kepada Majlis Agama Islam Johor (MAIJ) bahawa kami ingin menangguhkan persetujuan bagi pemindahan kuasa kepada LISB sehingga 2 perkara tersebut diselesaikan.”. [44] The said issue appeared to have escalated further when in another letter dated 14.11.2016 sent by P, D was informed of P’s intention to continue with the relocation project and thus has rescinded its earlier assignment of the contract to LISB. [45] Having said that, the real reason behind P’s rescinding the assignment emerged clearer from P’s former solicitors letter dated 18.07.2017 to LISB exhibited in court where it is stated that the rescission was due to total failure of consideration on part of LISB: - “Our client instructs us to give you notice which we hereby do that our client has withdrawn and cancelled their letter dated 11- 10-2013 addressed to Majlis Agama Islam Negeri Johor with regards to the assignment of their rights in respect of the above captioned matter to your company on the grounds of total failure of consideration. As you are aware it was an implied condition of the assignment that our client would only apply for the consent and approval from the State EXCO for the assignment to take effect on receiving the agreed consideration and as you have failed to provide the agreed consideration the assignment is rendered null and void and of no legal effect.”. [46] On the aforesaid background, D is a total stranger to the formation or rescission of the so-called assignment between P and LISB. Thus, since D neither had appointed LISB to continue with the project nor had the obligation to do so from the facts, the later act of P in rescinding the appointment of LISB cannot be said to bind D in any way under the law. Reference is made to Trip4Asia Sdn Bhd & Anor v Destini Bhd [2021] 6 MLJ 820 where it was held by the Court of Appeal that: - “[32] It is important to note that the plaintiffs were not privy to the passenger services agreement. The plaintiffs were strangers to the passenger services agreement and had no locus standi to declare the passenger services agreement as a sham agreement. On this, we agree with the learned High Court judge that since there is no contractual relationship between the plaintiffs and the fourth defendant, the plaintiffs' claim against the fourth to the ninth defendants is wrong and cannot be maintained in law. [33] The Court of Appeal in Tan Poh Yee v. Tan Boon Thien and other appeals [2017] 3 CLJ 569; [2017] 3 MLJ 244 had deliberated at great length on the issue of privity of contract and ultimately, in allowing the appellants'appeal to strike out the respondent's claim, concluded that: ... We can thus discern from the second appellant's defence that she was not privy to the purported 2004 agreement. In law, there is no basis for the second appellant to have been made a party to the action where she was not privy to the purported 2004 agreement. As a general rule, the doctrine of privity of contract enables only the original party to a contract to sue or be sued upon it, so that a third party does not enjoy the right to sue and incurs no liability to be sued (see Chong Nyuk Fung & Anor v. Loi Lung Kiong & Ors [1998] 5 CLJ 146; [1998] MLJU 41; Brilliant Team Management Sdn Bhd v. South East Pahang Oil Palm Sdn Bhd & Ors [2006] 2 CLJ 1218 [2007] 1 MLJ 536). (Emphasis added.)” [47] Accordingly, based on the available facts and evidence before this Court, the present claim if allowed would be an abuse of court process as it is to achieve an improper end namely compensation against D when no such right exist in the first place under contract or tort or under any law at all. P also should not be allowed to utilize the present suit to vindicate their rights against LISB when the latter is not even a party to the present case. Refer to Goldsmith v Sperrings Ltd & Ors [1977] 1 WLR 478 (Court of Appeal) page 489:- “In a civilized society, legal process is the machinery for keeping and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression: or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer.”. Meeting on 22.01.2017 [48] This meeting is crucial since P is anchoring their claim for compensation of RM10,000,000.00 based on events which they claimed transpired during this meeting. [49] The purpose of this meeting according to P is to resolve the alleged breach of procedure committed by D. D on the other hand maintains that the meeting is to avoid further acrimony and for the best interest of the orphans who would be adversely affected if the project is delayed. D’s role was to be a mediator in the dispute between P and LISB. [50] LISB to be noted was also present at the said meeting. [51] This court finds that this meeting was arranged by D on P and LSB’s behest. Refer to SD2’s evidence in this regard. “13(S): Apakah tujuan pertemuan di MSuite Johor Bahru pada 22.01.2017 diadakan? Boleh Dato’ terangkan kepada Mahkamah? YA, pihak MAINJ telah mengaturkan pertemuan atas nama persaudaraan Islam tersebut atas permintaan Plaintif dan LISB bagi membolehkan wakil-wakil dari Plaintif dan LISB berbincang untuk menyelesaikan pertikaian di antara mereka berkaitan Projek tersebut. 14(S) Apakah peranan MAINJ atau Dato’ sendiri di dalam perbincangan tersebut? Boleh Dato’ jelaskan pada Mahkamah? YA, peranan saya adalah selaku pemudah cara atau facilitator untuk membantu Plaintif dan LISB berbincang untuk menyelesaikan pertikaian di antara mereka, tidak lebih dari itu. Niat saya sebagai seorang yang berpendidikan agama dan bekas mufti serta penasihat agama Islam negeri Johor adalah untuk mengelakkan pergaduhan atau perseteruan yang berlarutan antara mereka yang amat ditegah oleh Islam, undang-undang dan akhlak mulia. Selain dari itu, projek itu perlu diteruskan demi kepentingan anak-anak yatim.”. [52] The above was also supported by SD1’s evidence as follows: - “19 (S) Kenapa MAIJ terpanggil untuk menganjurkan pertemuan di M-Suite Hotel Johor Bahru pada 22.01.2017? SIla Dato’ beritahu Mahkamah.

(J) MAIJ berpendapat, kemelut di antara Plaintif dan LISB akan memberi kesan negative serta melengahkan Projek tersebut. Oleh itu MAIJ di atas permintaan Plaintif & LISB telah mengambil inisiatif untuk menganjurkan sesi perbincangan tersebut yang turut dihadiri oleh wakil-wakil Plaintif, LISB dan MAIJ selaku pemudah cara di dalam sesi tersebut untuk mengelakkan pergaduhan atau perseteruan yang berlarutan antara mereka yang amat ditegah oleh Islam, Undang-Undang dan akhlak mulia. Selain dari itu, projek itu perlu diteruskan demi kepentingan anak-anak yatim.”. [53] This Court further finds that the said meeting did not concern any ‘promise to compensate’ purportedly made by D. There is no evidence to support this contention at all. Refer to Johara Bi bt Abdul Kadir Marican v Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139 (Federal Court): - “In our view, too, the evidence at the trial must be considered with regard to the fact that the appellant was an illiterate and absolutely inexperienced, Yakub the husband perhaps not so illiterate but without any English whereas Lawrence Lam was versed in English and in commercial and financial techniques, though he professed that it was not "unusual" for him not to follow them. The learned trial judge considered that Yakub's evidence had "erased whatever preponderance there was in the (appellant's) favour, in the result that the evidence on both sides becomes evenly balanced and that satisfactory conclusion could not be arrived at." Hence his reliance on onus of proof. But quite clearly, his decision was reached via an inference drawn entirely from a serious error of fact and in drawing this inference, he had not merely considered evidence which was not established but had failed to take into account the probative value of evidence which had been proved or was common to both parties. In these circumstances the inference he drew cannot be sustained and this court can and must come to the view, on the question of onus of proof, that the appellant had on a balance of probabilities, discharged the onus on her, the burden then shifted to the respondents and as held by the learned trial judge, the respondents had not discharged the burden even on a balance of probabilities and there should have been judgment for the appellant.”. [54] Based on Johara above, this Court finds that P have failed to discharge the onus on them to prove that D via SD2 had promised to compensate them for RM 10,000,000.00. As such, the burden of proof does not shift to D. [55] In fact, in P’s last letter to D dated 14.11.2016, no allegations on any breach of procedure was ever made by P against D. There was also nothing mentioned about any claim for compensation too. In other words, there is no contemporaneous evidence to support P’s claim in this regard. Refer to Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 (Federal Court): - “Nevertheless the learned trial Judge expressed himself to be completely satisfied with the veracity of the respondent's witnesses and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the respondent's oral evidence openly clashed with its contemporaneous documentary evidence. For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case.”. [56] Any allegation about this breach of procedure is also unsupported by any evidence on P’s part. Refer to Dato’ Pardip Kumar Kukreja & Anor v Vell Paari Samy Vellu [2015] CLJU 1482 (Court of Appeal): - “[24] It is settled law that the party who desires the court to give judgment as to any legal right or liability bears the burden of proof (section 101(1) Evidence Act 1950 ). The burden of proof is on that party is twofold: (i) the burden of establishing a case; and (ii) the burden of introducing evidence. The burden of proof lies on the party throughout the trial. The standard of proof required of the plaintiff is on the balance of probabilities. The evidential burden of proof is only shifted to the other party once that party has discharged its burden of proof. If that party fails to discharge the original burden of proof, then the other party need not adduce any evidence. In this respect it is the plaintiff who must establish his case. If he fails to do so, it will not do for the plaintiffs to say that the defendants have not established their defence (Selvaduray v. Chinniah [1939] 1 LNS 107; [1939] MLJ 253 (CA); s. 102 Evidence Act 1950 ).”. [57] P’s allegation concerning compensation of RM10,000,000.00 as being agreed upon during the said meeting is also bereft of any merit. In this regard, SD2 denied that D had agreed to such compensation: - “15(S): Bagaimana pula dengan dakwaan Plaintif bahawa Dato’ dan atau MAINJ telah bersetuju untuk membayar pampasan sebanyak RM 10,000,000.00 (Ringgit Malaysia Sepuluh Juta) kepada Plaintif? Apa jawapan Dato’ terhadap dakwaan tersebut? YA, dakwaan tersebut tidak masuk akal sama sekali. Pertama, MAINJ dan saya sendiri tidak mengetahui apa yang telah dipersetujui di antara mereka sewaktu Plaintif menyerahkan Projek Tersebut kepada LISB. Plaintif yang mengenalkan MAINJ kepada LISB bagi tujuan mengambil alih projek tersebut. Oleh itu tidak ada sebab untuk MAINJ membayar sebarang atau apa-apa pampasan kepada Plaintif. Selain dari itu, saya juga tidak pernah diarahkan atau diberi mandate oleh MAINJ untuk membuat apa-ap tawaran penyelesaian kepada Plaintif. Sepertimana saya telah nyatakan sebelum ini, saya hanya bertindak selaku pemudah cara bagi sesi perbincangan tersebut. Apa-apa cadangan penyelesaian datang daripada pihak Plaintif. Oleh itu, saya tidak berhak membuat apa-apa keputusan dan saya hanya menyaksikan perbincangan sebagai pemudah cara antara kedua-dua pihak.”. [58] This Court also finds it illogical that D had agreed to compensate P since D is not privy to any arrangement between P and LISB. Furthermore, SD2 did not have any mandate or power to offer any compensation to P. [59] D also has no reason to compensate P since it did not appoint or terminate P under the project. [60] SD2’s version is also consistent with SD1. [61] This court thus finds D’s version of events more believable based on SD1’s and SD2’s evidence as it is more probable in light of the factual matrix of the case and the evidence adduced during trial. [62] It is more probable that the said meeting was for D to mediate between P and LISB since it was admitted that prior to the said meeting, a dispute had arose between the both of them. Refer to SP1’s evidence: - “DC: Setuju tapi jawapannya setuju. Dan setuju jika saya cadangkan sewaktu pertemuan tersebut diadakan, Langkah Indera masih belum membayar balasan bernilai 5 Juta tersebut kepada pihak Plaintif. Setuju atau tidak? PW-1: Setuju.”. [63] The mediating role of D during the said meeting is further fortified by P’s previous solicitors letter dated 04.04.2017 which states: - “Anak guam kami mengarahkan kami bahawa satu mesyuarat telah diadakan pada 22-01-2016 di antara pihak anak guam kami, pihak Tuan dalam kehadiran Dato’ Mufti Johor, Dato Noh Gadot dan ahli-ahli majlis yang lain di mana pihak Tuan telah mencadangkan satu penyelesaian di antara syarikat anak guam kami dan Syarikat Langkah Indera Sdn Bhd.”. [64] In accepting D’s version of what actually transpired during the meeting of 22.01.2017 and the purpose of the meeting, this court is guided by Sean Thornton (a minor by his mother and next friend) v Northern Ireland Housing Executive [2010] NIQB 4 (Northern Ireland High Court) which was adopted in McAllister v Campbell [2014] NIQB 24 (Northern Ireland High Court): - “[12] Credibility of a witness embraces not only the concept of his truthfulness i.e. whether the evidence of the witness is to be believed but also the objective reliability of the witness i.e. his ability to observe or remember facts and events about which the witness is giving evidence. [13] In assessing credibility the court must pay attention to a number of factors which, inter alia, include the following: • The inherent probability or improbability of representations of fact • The presence of independent evidence tending to corroborate or undermine any given statement of fact • The presence of contemporaneous records • The demeanour of witnesses e.g. does he equivocate in cross examination • The frailty of the population at large in accurately recollecting and describing events in the distant past. • Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication • Does the witness have a motive for misleading the court • Weigh up one witness against another.”. [65] What is even more important, SP1 had finally admitted in cross-examination that no promise was made by SD2 that D would compensate P: - Saya cadangkan semasa perjumpaan di M Suite tersebut, Dato’ Nooh Gadot tidak pernah kata Defendan akan bayar pampasan kepada Plaintif setuju atau tidak. PW-1: Setuju. Saya cadangkan tiada apa-apa keputusan penyelesaian dicapai di antara Plaintif dan LISB pada perjumpaan tersebut. PW-1: Setuju.”. [66] Again, SP1 had admitted the following: - Saya cadangkan, tiada sebarang pampasan yang telah dipersetujui di antara Plaintif dan Defendan. Setuju atau tidak? PW-1: Waktu ketika itu ke? Pada bila-bila masa langsung. PW-1: Tak da.”. [67] SP1’s evidence is a major contradiction that goes to the root of P’s claim since the issue of the alleged promise to compensate them is a cornerstone of P’s case. This is thus very significant to the present case thus raising doubts to the truthfulness of P’s evidence overall. Refer to Gunalan Ramachandran & Ors v PP [2006] 1 CLJ 857 (Federal Court): - "What need to be considered is whether the discrepancies relate to material aspects of the case or otherwise. As stated in Sarkar on Evidence 15th edn. p. 112: Minor discrepancies are possible even in the version of truthful witnesses and such minor discrepancies only add to the truthfulness of their evidence (Sidhan v. State of Kerala [1986] Cri LJ 470, 473 (Ker)). But discrepancies in the statements of witnesses on material points should not be lightly passed over, as they seriously affect the value of their testimony (Brij Lal v. Kunwar, 36 A 187:18 CWN 649: A 1914 PC 38). The main thing to be seen is whether the inconsistencies go to the root of the matter or pertain to insignificant as pects there of ...”. [68] SP1’s admission during cross-examination as evident above renders P’s claim totally unworthy of belief since P’s own witness had negated their claim of the promise to make compensation on D’s part as alleged in their pleadings. SP1 was also evasive when confronted concerning evidence to support P’s contention and failed to produce the letter of award which was purportedly awarded by D to LISB when this formed one of the biggest complaints of P which alleged D awarded the project to D which according to P is a “breach of procedure”. Refer to Sediabena Sdn Bhd v China Comservice (Hong Kong) Limited [2017] 1 LNS 2042 (Court of Appeal): - “...The learned trial Judge preferred the evidence of the Plaintiff whom she viewed as "more credible" in support of their contention, as compared to the witnesses of the Defendant who were "evasive and blowing hot and cold in responding to questions in relation to the failure in providing the invoice in question as in so much it had portrayed untruthfulness on their part and also lack transparency as the parties to the agreement ...”. [69] The fact that no promise to compensate was ever made is also supported by P’s former solicitors letter dated 04.04.2017: - “Anak Guam kami mengarahkan kami untuk merakamkan di sini bahawa sehingga hari ini perkara penyelesaian tersebut masih berlarutan dan tiada maklum balas dari pihak Tuan berkenaan penyelesaian yang dicadangkan dan semua usaha pihak-pihak anak guam kami untuk berhubung dengan pihak Tuan untuk menyelesaikan perkara ini tidak berhasil.”. [70] The letter dated 04.04.2017 is also silent on any compensation as alleged by P. Thus, the allegation that a promise to compensate was made does not fit with the evidence and circumstances of the case and it is inherently improbable that such a promise was even made by SD2 as alleged. Refer to Md Zainuddin Bin Raujan v Public Prosecutor [2013] 3 MLJ 773 (Federal Court): - “It is trite that the inherent probability or improbability of a fact in issue must be the prime consideration in deciding whether a witness is credible or not. It is the duty of the court to sieve the evidence and to ascertain what are the parts of the evidence tending to incriminate the accused which he accepted. In Public Prosecutor v. Dato' Seri Anwar bin Ibrahim (No 3) [1999] 2 CLJ 215; [1999] 2 MLJ 1 at p 79 Augustine Paul J (as he then was) summed up the tests for determining the credibility of a witness as follows: The Privy Council has stated that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case (see Bhojraj v. Sitaram [1936] AIR PC 60). ... It must, however, be observed that being unshaken in cross-examination is not per se an all-sufficient acid test of credibility. The inherent probability or improbability of a fact in issue must be the prime consideration (see Muniandy & Ors v. Public Prosecutor [2016] 1 LNS 592; [1966] 1 MLJ 257) ...”. [71] In light of the above, this court finds SP’1 evidence in court was a total deviation as to what truly transpired at the meeting on 22.01.2017 rendering his evidence highly suspect and unacceptable to this Court. Refer to Ong Cheng Wah & Anor v Supramaniam A/L Arjunan [2001] 4 CLJ 202 (High Court): - “This court find that the plaintiff's evidence in court was a complete deviation as to how the accident occurred when compared to his police report exhibit P4 and that his evidence in court is highly suspect and requires satisfactory explanation for this material contradictions before the court could have accepted his evidence in his favour. There is no doubt that his evidence in court was an afterthought attempt and to exculpate himself from being responsible for the accident. On this ground alone the learned Sessions Court Judge should have dismissed the plaintiff's claim …”. LISB’s alleged appointment by D [72] It would be readily apparent from the perusal of the facts and evidence adduced before this court that LISB was introduced to D by P themselves as evident from P’s letter dated 11.10.2013. [73] Further to the above, upon being informed that P had assigned the project to LISB, D was then briefed by LISB about the project on 08.11.2013 with P’s knowledge as evident from D’s letter dated 13.02.2014 acknowledging the same and extending a copy of the letter to P. [74] It would be useful to refer to paragraph 4 of the same letter which shows D had maintained at all material times that the final arbiter of any arrangement involving P and LISB lies with the Johore State Government with P duty bound to obtain the necessary approvals from the latter. [75] Suffice to say LISB had not replaced P under the project. Instead, there existed an arrangement between LISB and P to which D is not privy to. In any event, D too is not empowered to decide on the assignment done by P to LISB. [76] It is P which had first raised about LISB’s appointment by D to replace P. However, this was not put to SD1 when he gave evidence in court or even put to SD2. No questions were put accordingly concerning this letter of award purportedly issued by D to LISB. Refer to Wong Swee Chin v PP [1981] 1 MLJ 212 (Federal Court):- “On this point we need only say there is a general rule that failure to cross examine a witness on a crucial part of the case will amount to an acceptance of the witness's testimony.”. [77] Refer also to Aik Meng (M Sdn Bhd & 8 Ors v Chang Ching Chuen & 3 Ors & Another Case [1995] 3 CLJ 639 (Court of Appeal) pages 658-660: - “It is essential that a party's case be expressly put to his opponent's material witnesses when they are under cross-examination. A failure in this respect may be treated as an abandonment of the pleaded case and if a party, in the absence of valid reasons, refrains from doing so, then he may be barred from raising it in argument. It is quite wrong to think that this rule is confined to the trial of criminal causes. It applies with equal force in the trial of civil causes as well.”. [78] Furthermore, the purported letter of award by D appointing LISB was also not produced by SP1 or any of the witnesses during trial. This is vital since P themselves maintain it is pivotal to their case. See SP1’s evidence where he confirms: - Baik di tanya kemudiannya soalan lanjutan, Tuan kata letter of award yang di beri kepada LISB, saya cadangkan inilah yang menjadi asas kepada tuntutan Plaintif kepada Defendan hari ini. Setuju atau tidak. PW-1: Setuju. Baik, saya cadangkan berdasarkan dokumen-dokumen yang telah difailkan di Mahkamah hari ini, Letter of Award tersebut tidak wujud. Setuju atau tidak. PW-1: Tidak.”. [79] Since D had asserted that a letter of award was issued by D to LISB, then it is incumbent on them to prove it. Refer to Section 103 Evidence Act 1950 which states: - “The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”. [80] Refer to International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86 (Federal Court): - “According to section 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail.”. [81] Finally, it must be stated for the sake of completion that the relocation project was eventually not proceeded with by LISB as claimed by P. This was confirmed by SP2, the consultant architect, when he stated during examination in chief that: - “PC: Jadi, ni yang final lah. So, soalan saya encik Zul. Adakah projek ini dapat diteruskan? SP2: Sekarang tidak Hazwan Kenapa SP2: Sebab berbalik kepada penyerahan hak tadi lah, penyerahan hak daripada Pedoman Asli kepada Langkah Indera tidak berlaku. Tidak mendapat kelulusan exco So, until now tidak ada apa apa projek dijalankan atas projek tu lah SP2: Tak ada Sehingga sekarang? SP2: Ya” [82] As such, P’s claim of its inability to proceed with the relocation project was caused by D is totally misconceived. Conclusion [83] Having considered all aspects, P had failed to discharge its burden of proof on the balance of probability on all its allegations of breaches against D either on the procedures relating to the appointment or termination of P or on the purported agreement made by D to pay compensation of RM10,000.000.00 to P. [84] Based on the above, this Court dismissed P’s claim against D with costs at RM30,000.00 payable by P to D subject to allocator fees. Dated: 14th APRIL 2025 …………………………………………. (NOOR HISHAM BIN ISMAIL) Judge High Court, Johor Bahru Counsel: Kamal Hisham Jaafar (Together with Siti Suhaini Binti Kamarudin) Messrs Kamal Hisham & Associates Solicitors for the Plaintiff Suite 1B, Level 6, Menara Dato’ Onn PWTC, 41, Jalan Sultan Ismail, 50480, Kuala Lumpur Mohd Faizal Ahmad Messrs Hazelin & Associates Solicitors for the Defendant Lot No 17.02-17.03, Level 17 Menara Landmark, No 12, Jalan Ngee Heng 80000, Johor Bahru Cases referred to: 1 Kepong Prospecting Ltd v Schmidt [1968] 1 MLJ 170 (Privy Council) 2 Glomac Alliance Sdn Bhd v Nordin Bin Md Zain [2023] 3 MLJ 393 (Court of Appeal) 3 Aseambankers Malaysia Bhd & Ors v Shencourt Sdn Bhd & Anor [2014] 4 MLJ 619 (Court of Appeal) 4 Government of Malaysia v Lim Kit Siang; United Engineers (M) Bhd v Lim Kit Siang [1988] 2 MLJ 12 (Supreme Court) 5 Pentadbir Tanah Daerah Petaling v Swee Lin Sdn Bhd [1999] 3 CLJ 577 (Court of Appeal) 6 Trip4Asia Sdn Bhd & Anor v Destini Bhd [2021] 6 MLJ 820 (Court of Appeal) 7 Goldsmith v Sperrings Ltd & Ors [1977] 1 WLR 478 (Court of Appeal) 8 Johara Bi bt Abdul Kadir Marican v Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139 (Federal Court) 9 Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 (Federal Court) 10 Dato’ Pardip Kumar Kukreja & Anor v Vell Paari Samy Vellu [2015] CLJU 1482 (Court of Appeal) 11 Sean Thornton (a minor by his mother and next friend) v Northern Ireland Housing Executive [2010] NIQB 4 (Northern Ireland High Court) 12 McAllister v Campbell [2014] NIQB 24 (Northern Ireland High Court) 13 Gunalan Ramachandran & Ors v PP [2006] 1 CLJ 857 (Federal Court) 14 Sediabena Sdn Bhd v China Comservice (Hong Kong) Limited [2017] 1 LNS 2042 (Court of Appeal) 15 Md Zainuddin Bin Raujan v Public Prosecutor [2013] 3 MLJ 773 (Federal Court) 16 Ong Cheng Wah & Anor v Supramaniam A/L Arjunan [2001] 4 CLJ 202 (High Court) 17 Wong Swee Chin v PP [1981] 1 MLJ 212 (Federal Court) 18 Aik Meng (M Sdn Bhd & 8 Ors v Chang Ching Chuen & 3 Ors & Another Case [1995] 3 CLJ 639 (Court of Appeal) 19 International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86 (Federal Court) Legislation referred to: 1