Raja Zainal Abidin Bin Raja Hussin v Mohd Hanafiah Abdul Jalil (WA-22NCvC-447-07/2024)

I decided that this Court ought to allow the Plaintiff’s application for summary judgment because I find no triable issue regarding the Plaintiff’s claim against the Defendant. Background Facts [3] The Defendant signed a Deed of Acknowledgment of Debt dated 19th June 2023 wherein he promised to repay RM1,650,000 to the Plaintiff. 04/04/2025 16:46:25 WA-22NCvC-447-07/2024 Kand. 37

In the said Deed of Acknowledgment of Debt, the Defendant is referred to as “the Borrower” while the Plaintiff is referred to as “the Lender”. Therein, the Defendant acknowledges that the total sum owing to the Plaintiff is RM1,650,000 and undertakes to repay the Plaintiff by way of two instalments; RM100,000 forthwith and the balance RM1,550,000 within three years from the date of the execution of the said Deed. The Plaintiff’s Claim [5] The Plaintiff commenced this civil suit and applied for summary judgment because the Defendant reneged on his promise to pay in accordance with the said Deed of Acknowledgement of Debt.

In his supporting affidavit, the Plaintiff exhibited the said Deed of Acknowledgment of Debt to prove his claim. In a further affidavit affirmed by the Plaintiff on 15th November 2024, he exhibited two statutory declarations affirmed on 15th November 2024 by two common acquaintances, namely, Mohamed Azman bin Yahya and Syed and Hamid bin Syed Hussain Alhabshee, who attested the parties’ signatures.

In those two statutory declarations, the deponents affirmed having attested the signature of the Defendant in the said Deed of Acknowledgment of Debt on 19th June 2023, and that the Defendant signed voluntarily. The Defendant’s Defence [8] In the Defendant’s Defence, it was admitted that the Defendant did sign the said Deed of Acknowledgment of Debt. It was further pleaded 3 pleaded that the Defendant did not receive RM1,650,000 from the Plaintiff. Those pleas are at para 4 of his Defence, as follows:

In his affidavit to resist the Plaintiff’s application for summary judgment, the Defendant averred that he stands by his Defence. He then went on to aver that he signed the said Deed of Acknowledgement of Debt under duress. Para 14 of his affidavit states as follows: Analysis of the Evidence [10] Since the Defendant admitted that he signed the said Deed of Acknowledgment of Debt on 19th June 2023, the only issue would be whether he signed it under duress. Due to the following reasons, it is my judgment that the Defendant’s averment of “duress” is an afterthought to attempt to create a triable issue.

First, duress was not pleaded in his Defence. It was admitted that he signed the said Deed of Acknowledgement of Debt but merely pleaded that he did not receive a loan of RM1,650,000 from the Plaintiff. The Defendant is bound by his pleas in his Defence.

Secondly, if it is true that the Defendant was compelled to sign the said Deed of Acknowledgment of Debt under duress, he would surely have acted promptly to invalidate it as soon as he was allowed to leave the premises. He did not make any allegation of the Plaintiff and/or the witnesses having used force to abduct him or to threaten him physically or verbally to sign the said Deed.

The Defendant obviously did not think that the alleged “duress” to sign a deed that makes him liable to pay RM1,650,000 serious enough to warrant a police report. However, after he was served with the Writ in this action, he also did not file a counterclaim to attempt to invalidate the said Deed of Acknowledgement of Debt. He did nothing to try to invalidate the said Deed.

In my judgment, this is a clear-cut case of afterthought resulting in a sham defence being filed. The Defendant, who admitted signing the said Deed of Acknowledgement of Debt, is attempting to contradict the terms of the said Deed. He is prohibited by s.92 Evidence Act 1950 from adducing any oral evidence for the purpose of “contradicting, varying, adding to, or subtracting from the terms" of the said Deed of Acknowledgement of Debt. In other words, even if a trial is to be held, the said Deed – as it stands – would still be binding on the Defendant.

As for the Plaintiff, he averred in his affidavit in reply, inter alia, that he was stunned to read the Defendant’s affidavit alleging duress. The Plaintiff addressed this allegation by requesting the two witnesses of the parties’ signatures on 19th June 2023, namely, Mohamed Azman bin Yahya and Syed and Hamid bin Syed Hussain Alhabshee, to affirm a statutory declaration respectively regarding their role on the said date.

Both witnesses’ Statutory Declarations (exhibited in the Plaintiff’s further affidavit) confirmed that the Defendant signed the said Deed of Acknowledgement of Debt voluntarily, they were not aware of the transactions between the Plaintiff and the Defendant, and that they merely witnessed the Plaintiff and the Defendant signing on the said Deed. For convenient reference, a screenshot of the relevant paragraph 4 and 5 of the statutory declaration is pasted below:

I find that the evidence – as analysed in para [11], [12], [13] and [14] above – clearly showed that there is no triable issue. The contents of the two statutory declarations by those two witnesses merely fortify my finding that the Defendant’s allegation of “duress” in his affidavit (which is not even pleaded in his Defence) is an afterthought. Conclusion [18] I decided that this Court ought to allow the Plaintiff’s application for summary judgment because I find no triable issue regarding the Plaintiff’s claim against the Defendant. There was a breach of the said Deed when the Defendant failed to make the first payment of RM100,000 after signing the said Deed of Acknowledgment of Debt.

The Plaintiff has prayed for judgment sum of RM1,650,000 to be paid forthwith. I declined to allow that prayer because there is no default clause in the said Deed that requires the Defendant to pay the full amount of RM1,650,000 immediately in the event of the Defendant’s default in paying the first payment of RM100,000. Clause 2 of the said Deed simply states as follows:

In my judgment, since there is no triable issue about the liability of the Defendant to pay in accordance with the said Deed of Acknowledgment of Debt, the Plaintiff is entitled to summary judgment for the full sum of RM1,650,000 to be paid by the Defendant as two instalments. Judgment for the sum of RM100,000.00 to be paid forthwith with interest at 5% on the sum of RM100,000.00 to be calculated from 19th June 2023 till date of payment. Counsel for the Plaintiff: Voon Su Huei SOLICITORS FOR THE PLAINTIFF: MESSRS THOMAS PHILIP Advocates & Solicitors 5-1, Jalan 22A/70A, Wisma CKL, Desa Sri Hartamas, 50480 KUALA LUMPUR. Counsel for the Defendant: Johan Abdullah SOLICITORS FOR THE DEFENDANT: MESSRS JOHAN ARAFAT HAMZAH & MONA Advocates & Solicitors Level 3, Safeguards Business Centre, Lot 6, Jalan 225, Section 51A, 46100 PETALING JAYA, SELANGOR. LEGISLATIONS REFERRED TO:

S.92 Evidence Act 1950

Order 59 rule 24 Rules of Court 2012