United Malaya 360 Media Sdn Bhd v 1. ) Norlela Binti Ghazali (BA-12BNCvC-69-09/2019)

NORLELA BINTI GHAZALI

NORLELA BINTI GHAZALI (NO.K/P : 610218-10-5488) (Sebagai wakil diri Responden Kedua Handani bin Saido (NO.K/P : 530128-10-5791, Si Mati) … RESPONDEN-RESPONDEN JUDGMENT [1] This present appeal before me arose from the decision given by the Sessions Court on 29.08.2019 at the end of trial. 29/08/2023 15:22:07 BA-12BNCvC-69-09/2019 Kand. 95 S/N Vw/eDMccq0uTYcSi7sX58g [2] The appeal was heard on 19.05.2022. Upon review of the Record of Appeal, the judgment of the Sessions Court and the submissions of counsel for both parties, this Court on 07.07.2022 dismissed the appeal with costs. [3] As the sum involved was less than RM250,000-00, the Appellant duly obtained leave to appeal 14.06.2023. [4] The following are my grounds of judgment. For purposes of convenience the parties herein shall be referred to in their original capacity as in the Sessions Court proceedings. Brief Facts [5] The factual matrix forming the background of the appeal can be found at paragraphs 2.1 to 2.14 of Enclosure 8 (See pages 1-10 of the Rekod Rayuan Tambahan). S/N Vw/eDMccq0uTYcSi7sX58g [6] At the conclusion of the trial, the Sessions Court dismissed the Plaintiff’s claim and allowed the Defendants’ counterclaim in part wherein the Defendants’ claim for cost to remove the concrete stones on Lot 1172 was dismissed due to insufficient evidence. This led to the present appeal before me by the Plaintiff. The Plaintiff’s grounds of appeal [7] The Plaintiff’s grounds of appeal can be summarized as follows: i. that the Plaintiff’s termination of the Tenancy Agreement (“the Agreement”) is correct and valid in law. The Plaintiff had to terminate the Agreement as the Defendant’s had continuously breached Clause 5(a) dan 5(d) by failing to grant “full possession and peaceful enjoyment” to the unipole site” and to facilitate the construction of the unipole structure / Advertisement Board to enable the Plaintiff to conduct the permitted activities on the said Land; S/N Vw/eDMccq0uTYcSi7sX58g ii. that at all material times, prior to entering the Agreement, the Plaintiff’s was using the route vide Lot 1170 to access the unipole site. Both parties knew that Lot 1170 will be used to access the unipole site on Lot 1172. There was no alternative route discussed nor stated in the Agreement. iii. In whatever circumstances, the 1st alternative route is too small and not suitable for the Plaintiff’s work which required the usage of heavy machineries including bringing in a steel pillar of 100 feet in height for purposes of erecting the unipole on the site. iv. that it did not make sense for the Plaintiff to pay a sum of RM300,000.00 to MTP Prime Sdn Bhd i.e. the owner of the 2nd alternative route for purposes of creating an opening to the unipole site when the rental for the unipole site itself was only RM2,000.00 per month. v. that the Defendants’ claim for losses allegedly due to the wrongful termination of the Agreement is not supported by evidence and was an afterthought created by the Defendants S/N Vw/eDMccq0uTYcSi7sX58g after the Plaintiff commenced proceedings in the Sessions Court; vi. that the issue trespass does not arise as SD1’s testimony clearly showed that the Defendants (in particular the 1st Defendant) was aware of the works that will be carried out by the Plaintiff on 10.10.2017, 11.10.2017 and 12.10.2017, and had given permission for the Plaintiff to access the site vide Lot 1170; vii. that Clause 2 of the Agreement dated 11.09.2017, is substantive evidence to show that the Defendants as owners of the unipole site had acknowledged receipt of the rental deposit and advance payment in the sum of RM6,000.00 and RM 8,000.00 respectively from the Plaintiff when the Agreement came into force on 11.09.2017. LEGAL POSITION [8] It is trite law that an appellate court will not readily interfere with the fining of facts arrived at by the trial court. A heavy burden is imposed S/N Vw/eDMccq0uTYcSi7sX58g on an appellant who wishes to set aside a finding of facts of the trial judge (see Tay Kheng Hong v Heap Moh Steamship Co Ltd [1964] MLJ 87). [9] In Johari bin Khalid & Anor v Mohamed Zamri bin Khalid [1985] 1 MLJ 142, the Federal Court held as follows: “We appreciate that this appeal is mainly involved with the finding of facts by the court below and as such we should be slow or reluctant to disturb the finding unless it could be shown that the finding cannot be sustained having regard to the evidence.” [10] In China Airlines Ltd v Maltran Air Corp [1996] 2 MLJ 527 Dzaiddin FCJ at page 526 held as follows: “… there is a clear authority also from the House of Lords - and followed by the Privy Council – which says that a distinction can be drawn between a finding of a specific fact which depends upon the credibility of witnesses and a finding of fact which depends upon inferences drawn from other facts. In the latter case, an appellate court will more readily interfere with the trial Judge’s finding of fact and S/N Vw/eDMccq0uTYcSi7sX58g form an independent opinion than in the case of the former. That authority is the speech of Lord Red in House of Lords’ decision in Benmax v Austin Motor Co Ltd [1955] 1 All ER 326 followed later by the Privy Council in the Singapore case of Tay Keng Hong v Heap Moh Steamship Co Ltd [1964] MLJ 87 at p. 94. At p 329, his Lordship stated: Wat (or Thomas) v Thomas [1947] 1 ALL ER 582 was a consistorial case based on cruelty, and I think that the whole passage which I have quoted refers to cases where the credibility or reliability of one or more of the witnesses has been in dispute, and where a decision on these matters has led the trial Magistrate to come to his decision on the case as a whole. If hat be right, then I see no reason to doubt anything that was said by Lord Thankerton. But in cases where there is no question of credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as a good a position to evaluate the evidence as the S/N Vw/eDMccq0uTYcSi7sX58g trial Magistrate, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion. (Emphasis added.)” Court’s Analysis and Findings [11] Having reviewed the entire record of appeal and the submissions advanced by counsel, this Court finds no reason to disturb the findings of the learned Sessions Court Judge. [12] In this regard, the learned Sessions Court Judge was correct to conclude that: i. the Plaintiff’s termination of the Tenancy Agreement on the premise that the Defendant’s had continuously breached Clause 5(a) dan 5(d) by failing to grant “full possession and peaceful enjoyment” to the unipole site” and to facilitate the construction of the unipole structure / Advertisement Board to enable the Plaintiff to conduct the permitted activities on the said Land was wrong; S/N Vw/eDMccq0uTYcSi7sX58g ii. the Plaintiff’s contention that both parties knew that Lot 1170 will be used to access the unipole site on Lot 1172 is contrary to the evidence adduced. iii. there was no discussion as to the access road to the unipole site nor the fact that the Defendant had agreed to allow the Plaintiff to access Lot 1172 vide Lot 1170. iv. there was no evidence that MTD Prime Sdn Bhd (the owner of the 2nd alternative route), had requested for a deposit of RM300,000.00 for purposes of creating an opening to the unipole site. v. that the Defendants’ claim for losses is based on the correct principles of law i.e. section 40 Contracts Act 1950 as the Defendant had the option of either rescinding the contract or to insist that the Plaintiff being the party in breach, comply with the terms of the Agreement without the Defendant being obligated to adduce evidence of their alleged loss. In this regard, the Sessions Judge’s reliance on the Federal Court decision in Ganam v Sonoo Sinniah [1984] 2 CLJ 268 and the S/N Vw/eDMccq0uTYcSi7sX58g Court of Appeal in decision First Count Sdn Bhd v Wang Yew Logging & Plantation Sdn Bhd [2013] 4 MLJ 693 was spot on. vi. there was trespass over Lot 1170. Whilst SD1’s testimony clearly showed that the Defendants (in particular the 1st Defendant) was aware of the works that will be carried out by the Plaintiff on 10.10.2017,. 11.10.2017 and 12.10.2017, there is no evidence that his permission was sought for the Plaintiff to access the site vide Lot 1172; vii. despite that provisions of Clause 2 of the Agreement dated 11.09.2017, stating that the Defendants as owners of the unipole site had acknowledged receipt of the rental deposit and advance payment in the sum of RM6,000.00 and RM 8,000.00 respectively, there was no evidence to support the Plaintiff’s testimony that they had issued payment of above sums to the Defendants vide cheques. S/N Vw/eDMccq0uTYcSi7sX58g [13] This Court also agree with the learned Sessions Court’s finding that: i. The draft ‘Perjanjian Jalan Laluan Masuk’ is not an additional Agreement to the Tenancy Agreement as both Agreements involved different lands. ii. There was no breach of Clause 7 of the Tenancy Agreement by the Defendants; iii. The Plaintiff was aware of the difficulty in obtaining permission from BHP and/or MTD Prime Sdn Bhd to access the unipole site and had in fact offered to pay the Defendants a sum of RM5,000.00 for use of Lot 1170 to access the unipole site on Lot 1172 evidencing the fact that the Plaintiff knew that the Tenancy Agreement was limited to Lot 1172 only; [14] In addition, this Court agrees with the Defendants’ submission that some of the matters raised in the appeal were not pleaded and therefore should not be given consideration: a. That there were alternative routes available to access Lot 1172 but the cost to access the site was unreasonably high; S/N Vw/eDMccq0uTYcSi7sX58g b. That there was unjust enrichment on the part of the Defendants despite them being the party in breach; c. Reliance on Clause 2 of the Agreement to support the Plaintiff’s contention that the Defendants had acknowledged receipt of the RM6,000.00 and the RM8,000.00 respectively; and d. Reliance on Clause 6(h)(i) of the Agreement as the basis for terminating the Agreement with the Defendants; and [15] It is trite law that parties are bound by their pleadings. It is elementary and trite law that parties are bound by its own pleadings and is prohibited from departing on its own case at their own whims and fancy (see Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1; State Government of Perak v Muniandy [1986] 1 MLJ 490; Anuar bin Mat Amin v Abdullah bin Mohd Zain [1989] 3 MLJ 313; Lee Ah Chor v Southern Bank Bhd [1991] 1 MLJ 428; and The Chartered Bank v Yong Chan [1974] 1 MLJ 157). S/N Vw/eDMccq0uTYcSi7sX58g Conclusion [16] In light of the above circumstances, I find no appealable error that warrants an appellate interference against the findings of the Sessions Court Judge. The appeal is hereby dismissed. [17] Having heard brief submission by counsel on the issue of costs, I am of the view that a sum of RM5,000.00 would be sufficient. I hereby order so accordingly. Dated 14 August 2023, ………………………………….. (MOHD FIRUZ BIN JAFFRIL) JUDGE HIGH COURT OF MALAYA AT SHAH ALAM S/N Vw/eDMccq0uTYcSi7sX58g Solicitors for the Appellant: Tetuan Abd Halim Ushah & Associates. No.22, Tingkat 1, Jalan Kemuja, Off Jalan Bangsar, 59000 Kuala Lumpur. [Ruj No : United Malaya/ Lit/11847/2018 (Norlela)] No.tel : 03-22828612 Solicitors for Respondants: Tetuan Asiah & Hisam, No.2-21, Jalan 8/35, Seri Bangi, Seksyen 8, 43650 Bandar Baru Bangi, Selangor. (Ruj.No: AHS/CL/1017/07-18/FZ) No.Tel : 03-89124455/4466 S/N Vw/eDMccq0uTYcSi7sX58g S/N Vw/eDMccq0uTYcSi7sX58g