THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 100 ENGLISH

Sabarudin Bin Othman and Another v Malayan Banking Berhad, and 2 Other Appeals
Suit Number: Rayuan Sivil Nos. M-02(NCVC)(W)-2151-11/2016, M-02(NCVC)(W)-2152-11/2016 & M-02(NCVC)(W)-2193-11/2016 

JUDGMENT

INTRODUCTION

[1] The appeals herein relate to the decision of the High Court sitting in Melaka. The plaintiff’s claim is for amounts due under overdraft and two term loan facilities granted to the 1st defendant. The 2nd and 3rd defendants were sued as sureties under letters of guarantee. In this judgment, the parties shall be referred to as they were in the court below.

[2] Judgment in default has been entered against the 1st and 2nd defendants. The 3rd defendant denied signing the letters of guarantee and documents relating to the facilities and counterclaimed for loss and damages incurred in defending the plaintiff’s action.

[3] Subsequently, the plaintiff took up third party proceedings against the 1st to 7th third parties for an indemnity. The 1st and 2nd third parties (jointly referred to as ‘Third Party A’) was a legal firm appointed by the plaintiff to prepare the documents in respect of credit facilities granted to the 1st defendant in 2002. The 3rd to 7th third parties (jointly referred to as ‘Third Party B’) was a legal firm appointed to attend to the documentation involving facilities offered to the 1st defendant in 2005 and 2007.

[4] After a full trial, the learned judge found that the 3rd defendant had proved on a balance of probabilities that the signatures on the impugned documents were forged. Consequently, the learned judge dismissed the plaintiff’s claim against the 3rd defendant. As for the 3rd defendant’s counterclaim, the learned judge only allowed the 3rd defendant’s claim for the cost of signature verification report amounting to RM7,900.00.

[5] Appeal Nos. 2151 and 2152 were filed by Third Party A and Third Party B respectively against the findings of the learned judge which found the third parties liable to indemnify and compensate the plaintiff for losses and damages it suffered due to the forgery and the 3rd defendant’s counterclaim. Appeal No. 2193 is the plaintiff’s appeal against the learned judge’s decision dismissing the plaintiff’s claim against the 3rd defendant and allowing the 3rd defendant’s counterclaim in part. By a Court Order dated 13.4.2017, these appeals were consolidated.

FINDINGS OF THE HIGH COURT

[6] In dismissing the plaintiff’s claim against the 3rd defendant, in allowing the 3rd defendant’s counterclaim in part and in finding all the third parties liable to indemnify and compensate the plaintiff, the learned judge made the following key findings:

a) The 3rd defendant left the 1st defendant company in or about 1999/2000;

b) That fact that the 3rd defendant did not sign the loan documents was confirmed by the evidence of SP1 who admitted that the 3rd defendant was not present when he attested the execution of the loan documents. SP1 only attested to the signatures of the 2nd defendant on the loan documents;

c) As the for 3rd defendant’s counterclaim, the claim for general damages was dismissed as there was no evidence to prove the general damages suffered. The claim for special damages in respect of the cost of signature verification report in the sum of RM7,900.00 was proved and was allowed;

d) Third Party A was negligent as they had attested to loan documents which were purportedly executed by the 3rd defendant in their presence in 2002 when in fact that was not the case;

e) Third Party B was also negligent for representing to the plaintiff that the loan and security documents relating to additional facilities granted in 2005 and 2007 were duly executed by the 3rd defendant when in fact the 3rd defendant’s signatures were forgeries; and

f) Both Third Party A and B were liable, not only to indemnify the plaintiff for the 3rd defendant’s claim, but also the loan sums granted by the plaintiff to the 1st defendant.

SUBMISSION OF PARTIES

[7] Learned counsel for Third Party A argued that there was insufficient judicial appreciation by the learned judge of the totality of the evidence. First, the learned judge’s finding of negligence was wrong as it was only based on the evidence of the cross-examination of the 2nd Third Party. The 2nd Third Party had testified that the 2nd and 3rd defendants who were the directors of the 1st defendant company had signed the loan documents in their office. Under cross-examination, the 2nd Third Party confirmed that when the 2nd and 3rd defendants attended his office he directed them to sign all the loan documents before him and also before his staff and that his staff witnessed the two directors signing the loan documents. Second, there is ample evidence that the 3rd defendant did attend Third Party A’s office to sign the loan and security documents and gave a copy of his identity card to the staff of Third Party A. Lastly, it was also submitted that the learned judge failed to consider the handwriting expert report which was the only material evidence put forward by the 3rd defendant in support of his case.

[8] Learned counsel on behalf of Third Party B canvassed five main points. First, learned counsel argued that the plaintiff’s claim against Third Party B for RM568,267.74 in respect of the overdraft facility and RM83,357.77 in respect of the term loan 2 facility are independent and separate claims brought by the plaintiff against them and does not arise from the 3rd defendant’s counterclaim, and have no connection with the 3rd defendant’s counterclaim nor the same relief or remedy claimed by the 3rd defendant as they are based on the cause of action of tort and breach of contract. As such, the plaintiff’s claim for items (b) and (c) of the Third Party Notice should be dismissed as they are not a valid action under the third party proceedings (O 16 r 1(1)(a) and/or (b) of the Rules of Court 2012; Tan Chong & Sons Motor Company Sdn Bhd v Arumugam Packirisamy & Anor [1992] 3 CLJ 647; Chase Perdana Berhad v S&P Industries (M) Bhd [2010] 1 LNS 276). The second point relates to limitation. Learned counsel argued that the plaintiff’s claim against Third Party B for negligence and breach of contract is time barred as the letters of guarantee in question were signed by the 3rd defendant in 2005 and 2007. As such, limitation has set in in 2011 for the 2005 letter of guarantee and in 2013 for the 2007 letter of guarantee. Since the plaintiff only brought their claim against Third Party B in 2014 the action is time barred (s 6 of the Limitation Act 1953; AmBank (M) Bhd v Abdul Aziz bin Hassan & Ors [2010] 3 MLJ 784 (CA); Abdul Wahdi bin Zakaria v Puspakom Sdn Bhd [2014] 4 CLJ 785 (CA); Pang Yeow Chow v Advance Specialist Treatment Engineering Sdn Bhd [2014] 8 CLJ 188 (CA);). Third, learned counsel argued that the plaintiff’s claim against Third Party B for breach of duty of care and contract is unsustainable as it contradicts with the plaintiff’s own stand and election that the 3rd defendant’s signature are genuine. As such the plaintiff is estopped from disputing the authenticity of the 3rd defendant’s signatures when they proceeded to obtain a judgment against the 1st defendant based on the documents which are disputed by the 3rd defendant (UMW Toyota (M) Sdn Bhd v Chow Weng Thiem [1996] 5 MLJ 678; Intan Gaya Sdn Bhd v Labuan Municipal Council [1996] MLJU 121; Yeoh Theam Poh & Anor v Bench Win Sdn Bhd & Anor and other suits [2013] 8 MLJ 109; Mohamed Sam bin Sailan v Sykt Asal Construction Sdn Bhd [2014] 10 MLJ 293). Fourthly, learned counsel argued that the plaintiff would have suffered the loss in any event, not because of Third Party B’s negligence but the inability of the defendants to repay the loan. This argument is predicated on the basis of the plaintiff’s admission that they do not have any evidence to prove that the 3rd defendant has any asset to repay the loan (Kuwait Finance House (Malaysia) Bhd v Messrs Mohamed Ridza & Co [2014] 2 CLJ 239). Lastly, learned counsel argued that when the plaintiff issued its demand on the 1st defendant in 2011, the financial statements of the 1st defendant as at 31.3.2011 showed that the 1st defendant had current assets valued at RM1,553,089.00. However, the plaintiff did not enforce the debentures to recover its losses from the 1st defendant. Therefore, even if the plaintiff has suffered any loss due to the negligence of Third Party B, the plaintiff failed to mitigate its loss even though it is a secured creditor (Yeoh Siew Kean v Tay & Helen Wong [2015] 4 CLJ 517).

[9] In reply to Third Party A’s submission, learned counsel for the plaintiff argued that it was Third Party A’s duty to ensure that the 3rd defendant did sign the 2002 guarantees and it is a non-delegable duty. Instead, the 2nd third party had delegated that duty to one Hazel Tan a member of their staff. At any rate, that fact was not proved as Hazel Tan was not called to testify. As such, Third Party A breached their duty of care and/or contractual duties to properly attest the 2002 guarantees (Albert Chew v Hong Leong Finance Bhd [2001] 4 CLJ 419; Public Bank Bhd v Paul Cheah & Associates [2012] 1 LNS 831). Further, the plaintiff had disbursed the loan facilities on Third Party A’s representation vide their letter dated 21.6.2002 confirming that the 2002 guarantees had been executed and that the plaintiff’s interest is fully protected. In advising the plaintiff to release the loan sum, Third Party A had acted negligently by giving advice which was clearly contrary to the contractual provisions. Third Party A’s advice was detrimental to the plaintiff’s interests and caused the loss of the loan amount which was disbursed (Ambank Malaysia Berhad v Tetuan Abd Gani Che Man [2014] 1 LNS 673 (CA)). It was also argued that the learned judge was correct in ordering Third Party A to indemnify the plaintiff as a result of the 3rd defendant’s counterclaim (Public Bank Bhd v Paul Cheah & Associates (supra)).

[10] The plaintiff’s reply to Third Party B’s submission is as follows. Firstly, learned counsel for the plaintiff argued that there was clear evidence to show that Third Party B failed to properly attest the 3rd defendant’s signature on the 2005 and 2007 guarantees. The 7th third party was equivocal about whether the 3rd defendant signed the 2005 guarantee. Third Party B also failed to rebut the 3rd defendant’s evidence that he was not in Malaysia and did not sign the 2005 guarantee. Insofar as the 2007 guarantee is concerned, the 7th third party admitted that he did not witness the 3rd defendant’s signature even though he signed as a witness on the same. Further, the plaintiff also relied on Third Party B’s confirmation vide letter dated 17.5.2005 before disbursing the loan facilities to the 1st defendant.

[11] Secondly, learned counsel for the plaintiff argued that pursuant to the Third Party Notice, the plaintiff’s claim to be indemnified against the 3rd defendant’s counterclaim is wide enough to include the amount of the loan sums on the grounds that: (i) Third Party B had admitted in their submission that the Third Party Notice is for negligence and breach of contract, claiming not only indemnity arising from the 3rd defendant’s counterclaim but also for the entire loan sum granted to the 1st defendant, (ii) the causes of action in the plaintiff’s third party claim for contribution and indemnity from Third Party B and the 3rd defendant’s defence and counterclaim are inter-related and based on the same facts, issues and evidence (Myers v N&J Sherick [1974] 1 WLR 31; Standard Securities Ltd v Hubbard and Anor [1967] 2 All ER 622; Hong Leong Nominees Sdn Bhd & Anor v Tommy Lim Boon Cheow & Anor; Lachaman Lalchand & Assoc (Third Party) [2000] 1 CLJ 125; Firststate Pte Ltd v Raviland Pte Ltd (trading as Challenge Reticulation) [1994] 3 SLR(R) 523).

[12] Thirdly, learned counsel for the plaintiff argued that the issue of limitation was the basis of Third Party B’s application to strike out the Third Party Notice and the Statement of Claim against Third Party B. That application was dismissed and Third Party B did not appeal against that decision. As such, the limitation issue is res judicata and Third Party B cannot raise this issue again on appeal (Government of Malaysia v Dato Chong Kok Lim [1973] 2 MLJ 74; Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1997] 2 CLJ 104 (CA); Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 6 CLJ 673 (FC)). Further, learned counsel argued that the third party claim was not time barred as the plaintiff had no reason to suspect that the 2005 and 2007 guarantees will be disputed by the 3rd defendant as Third Party B had attested the signatures on the said guarantees and advised for drawdown of the loan. The earliest that the plaintiff could discover the negligence was when the 3rd defendant served the defence and counterclaim on 11.5.2012 on the plaintiff (Ambank (M) Bhd v Kamariyah binti Hamdan & Anor [2013] 5 MLJ 448 (CA); Wardley Australia Limited & Anor v the State of Western Australia [1992] 175 CLR 514; Kuala Lumpur Finance Bhd v KGV & Associates Sdn Bhd [1995] 1 MLJ 504; Bank Bumiputra Malaysia Bhd v Tetuan Wan Marican Hamzah & Shaik & Lain-Lain [1994] 1 MLJ 124; Peninsular Concord Sdn Bhd v Syarikat Bekalan Air Selangor [2014] 5 AMR 586).

[13] Fourthly, learned counsel for the plaintiff argued that there is no issue of ‘blowing hot and cold’ in the plaintiff’s stand. Third Party B had represented to the plaintiff that the 3rd defendant’s signatures on the guarantees were genuine and had been properly attested to by Third Party B. Relying on that representation the plaintiff had commenced action against the defendants. It is therefore unreasonable for Third Party B to contend that the plaintiff is now estopped from claiming against Third Party B for indemnity if it is now discovered that Third Party B had given a wrong representation to the plaintiff. The cases cited by Third Party B are not applicable to the plaintiff. Lastly, learned counsel argued that the plaintiff did not fail to mitigate its losses because it was not feasible to enforce the debenture as the current liabilities of the 1st defendant exceeded the current assets.

[14] The last submission is that of counsel for the 3rd defendant in opposing the plaintiff’s appeal. Learned counsel supported the learned judge’s critical findings that (i) the 3rd defendant did not sign the impugned documents, (ii) the signatures were forged and (iii) Third Party A and B’s witnesses were not credible. The 3rd defendant has proved on the balance of probabilities that the signatures on the impugned documents were forged; in particular learned counsel alluded to the admission of the plaintiff’s witness, the 3rd defendant’s evidence, the expert evidence, the inconsistent evidence of witnesses of Third Party A and B.

DECISION

[15] In the three appeals before us five principal issues fall to be determined:

[Whether the plaintiff’s claim for items (b) and (c) of the Third Party Notice should be allowed?]

[16] Ordinarily, a third party notice is taken out by a defendant who is sued (as a surety or on a contract or for negligence) may wish to claim contribution or indemnity from a third person whom the plaintiff has not elected to sue. In such instances it is desirable to bring in the third person against whom the defendant claims to have a remedy, so that the decision as to the liability of the defendant and of this third person shall be finally determined in one and the same action. The procedure to be adopted for this remedy is prescribed under O 16 ROC 2012.

[17] In this case, pursuant to O 16 r 11 ROC 2012 the plaintiff took out a third party notice against Third Party A and B to claim for indemnity if the plaintiff is found liable on the 3rd defendant’s counterclaim. Items (b) and (c) of the Third Party Notice relate to claims for loss and damages suffered by the plaintiff of RM568,267.74 under the overdraft facility and RM83,357.77 under term loan 2 facility respectively.

[18] In this connection, it is necessary to determine whether the plaintiff’s claim for loss and damages under items (b) and (c) relates to or is connected to the original subject matter of the action, and if so, (ii) whether the plaintiff’s claim are substantially the same as some relief or remedy counterclaimed by the 3rd defendant against the plaintiff: see O 16 r 1(1)(b) ROC 2012. Insofar as the Third Party Notice is concerned, the original subject matter of the action is the 3rd defendant’s counterclaim for general and special damages which is premised on the assertion that he did not sign the impugned guarantees. The 3rd defendant’s counterclaim is contained in paragraphs 28 and 29 of the counterclaim and is as follows:

28. Defendan Ketiga ingin memplidkan bahawa penerimaan Surat Tuntutan tersebut, Writ Saman dan PT daripada Plaintif yang menyatakan bahawa Defendan Ketiga telah berhutang kepada Plaintif dalam kapasiti sebagai seorang penjamin telah menyebabkan keazaban, depresi, kebimbangan dan kekhuatiran yang amat sangat kepada Defendan Ketiga sehingga Defendan Ketiga jatuh sakit dan menjejaskan prestasi Defendan Ketiga dalam menjalankan perniagaan di Negara China.

29. Selanjutnya Defendan Ketiga ingin menplidkan berikutan tuntutan Plaintif terhadap Defendan Ketiga ini, Defendan Ketiga telah mengalami kerugian masa dan wang kerana Defendan Ketiga terpaksa meninggalkan perniagaan di Negara China kerap kali serta menanggung perbelanjaan tiket penerbangan untuk pulang ke Malaysia demi membuat laporan polis, memohon pengesahan rekod pergerakan keluar/ masuk Negara di Jabatan Imigresen Malaysia di Putrajaya serta melantik peguam untuk guaman sivil Plaintif ini.

[19] A perusal of the Third Party Notice shows that the plaintiff’s claim against Third Party A and B is premised on negligence and/or breach of contract in attending to the loan and security documentation. In our considered view, the subject matter of the third party claim is not entirely dissimilar from that of the 3rd defendant’s counterclaim which is premised on the fact that he did not sign the guarantees in question. However, it is quite clear that the relief claimed by the plaintiff in the third party claim is not substantially the same as some relief or remedy counterclaimed by the 3rd defendant. Accordingly, we agree with the submission of learned counsel of Third Party B that the plaintiff’s claim for items (b) and (c) should not have been allowed.

[Whether res judicata apply to preclude Third Party B from raising limitation as a defence against the plaintiff’s claim? If not, whether the plaintiff’s claim is time barred?]

[20] The issue of res judicata may be dealt with summarily. Third Party B’s application to strike out the Third Party Notice was premised on the basis that (i) the plaintiff’s claim for indemnity is not a third party claim under O 16 ROC 2012 and (ii) the plaintiff’s claim is time barred. The striking out application was dismissed by the learned judge and the matter proceeded to full trial. In short, it was not a plain and obvious case for striking out. No ruling on the two grounds was made by the learned judge. The cases cited by learned counsel for the plaintiff are distinguishable on the facts and are of no aid to the plaintiff’s argument. As such, we do not think that Third Party B is precluded from raising the defence of limitation.

[21] Be that as it may, is the plaintiff’s claim against the third party for indemnity barred by limitation. In this connection, we pause to note that the learned judge did not address the issue of limitation in his written judgment even though limitation was raised in Third Party B’s written submission in the court below.

[22] The plaintiff’s third party notice dated 18.3.2014 for indemnity is premised on the tort of negligence and/or breach of contract. Section 6 of the Limitation Act provides that actions of contract and tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. What is vigorously disputed is when the cause of action accrued. Third Party B contends that the cause of action accrued in 2005 and 2007 on the date when the 2005 and 2007 guarantees in question were allegedly signed by the 3rd defendant and duly attested to by Third Party B; as such limitation set in on 2013. On the other hand, the plaintiff’s argument is that the cause of action accrued when the 3rd defendant served his defence and counterclaim on the plaintiff on 11.5.2012; and that as such, limitation set in on 11.5.2018.

[23] We think that it is quite settled that the cause of action was complete when the damage was suffered and the guarantees were purportedly executed by the 3rd defendant. However, whether actual damage has been established and if so, when, is a question of fact. Once that fact has been established then all the elements necessary to support the plaintiff’s claim would be in existence in order to say that the cause of action had accrued; and prior to that point of time, there would only be prospective loss and not actual damage which is necessary to support a claim for economic loss. Put another way, prior to the establishment of the fact that actual damage has been suffered, only a contingent liability existed and as such was not an actionable damage until the contingency occurred. No actual damage would be incurred until the contingency was fulfilled and the loss became actual, and until that happen the loss was prospective and might never be incurred.

[24] In this case, in 2005 or 2007 the plaintiff could not have discovered whatever negligence on the part of Third Party B by the exercise of any reasonable diligence. There was nothing to give rise to any doubt or suspicion as Third Party B had advised the plaintiff to disburse the loan sums to the 1st defendant on the basis that the guarantees had been duly signed by the 3rd defendant. At the earliest, the plaintiff should have suspected possible negligence in the execution of the guarantees was when the 3rd defendant filed and served his defence and counterclaim in May 2012. Then and only then could it be said that the plaintiff should have discovered that the authenticity of the 3rd defendant’s signatures on guarantees were seriously disputed. Accordingly, until the service of the 3rd defendant’s defence and counterclaim on the plaintiff it could not be said that all the facts have happened which are material to be proved to entitle the plaintiff to succeed in its third party claim. Indeed, it is quite settled that a cause of action normally accrues when (i) there is in existence a person who can sue and another who can be sued, and (ii) all the facts have happened which are material to be proved to entitle the plaintiff to succeed. Thus, in our view the period of limitation does not begin to run until there is a complete cause of action, and a cause of action is not complete when all the facts have not happened which are material to be proved to entitle the plaintiff to succeed (Lim Kean v Choo Koon [1970] 1 MLJ 158; Credit Corporation (M) Bhd v Fong Tak Sin [1991] 1 MLJ 409 (SC)).

[25] We have carefully considered the authorities cited by counsel and are of the view that the position of this Court in Ambank (M) Bhd v Kamariyah binti Hamdan & Anor (supra) is to be preferred. Our view is also fortified by Pang Yeow Chow v Advance Specialist Treatment Engineering Sdn Bhd (supra) where Hamid Sultan Abu Backer JCA speaking for the Court of Appeal said in para. [24]: “The test really is whether or not the respondent could have initiated an action within the limitation period”.

[Whether the plaintiff can approbate and reprobate?]

[26] On this issue, we agree with the submission of learned counsel for the plaintiff. In this instance, the plaintiff sued the 3rd defendant in reliance on Third Party B’s representation as to the genuineness of the 3rd defendant’s signatures on the guarantees. Having relied on the same to their detriment, we think that the plaintiff is entitled to seek relief against Third Party B for indemnity. As such, the question of the plaintiff blowing hot and cold does not arise.

[Whether the learned judge’s finding of negligence against Third Party A and B is sustainable?]

[27] We have perused the learned judge’s written judgment and appeal record and are satisfied that the learned judge’s finding is supported by cogent evidence. The learned judge examined and evaluated the evidence of the attesting solicitors and found them wanting. In fact, the evidence of the attesting solicitors were equivocal when they were examined under cross-examination. The manner in which they carried out their duty, which they admitted were non-delegable, is a fact which supports the learned judge’s finding of negligence against Third Party A and B. On the totality of the evidence, we are not satisfied that the findings of the learned judge was plainly wrong. As such we are not inclined to disturb the findings of the learned judge.

[Whether the alleged forgery of the 3rd defendant’s signatures on the impugned documents has been established?]

[28] After hearing of counsels’ submission, the Court had drawn counsel’s attention to the recent Federal Court decision in Letchumanan Chettiar Alagappan @ L. Allagappan & Anor v Secure Plantation Sdn Bhd [2017] 3 MLRA 501; [2017] 5 CLJ 418 (FC). The parties were invited to address the Court on the implications, if any, on the burden and standard of proof in forgery cases in civil proceedings. Learned counsel for the plaintiff submitted that Letchumanan (supra) had essentially reaffirmed the trite legal position on the standard of proof for forgery cases in civil proceedings is on a balance of probabilities. Learned counsel for the 3rd defendant highlighted the similarities and differences between Letchumanan (supra) to augment his argument that the decision in Letchumanan (supra) is in all fours favourable to the 3rd defendant.

[29] In our view, the Federal Court decision in Letchumanan (supra) is significant as it reiterated the important principles relating to the burden of proof on a party asserting a document’s validity. The following principles may be distilled from the salutary judgment of Jeffrey Tan Kok Wha FCJ speaking for the Federal Court:

There is an essential distinction between burden of proof and onus of proof. The burden of proof lies upon the person who has to prove a fact and it never shifts but the onus of proof shifts;

The burden of proof in s 101 of the Evidence Act 1950 (‘the legal burden’) is the burden to establish a case which rests throughout on the party who asserts the affirmative of the issue;

The burden of proof in s 102 of the Evidence Act (‘the evidential burden’) is the burden to adduce evidence, to make out or rebut the claim. The burden of proof in s 102 shifts from one side to the other according to the weight of the evidence;

The plaintiff has both the burden of proof as well as the initial onus of proof;

The plaintiff is bound in the first instance to show a prima facie case;

When the plaintiff gives such evidence as will support a prima facie case, the onus shifts on to the defendant, to adduce rebutting evidence to meet the case made out by the plaintiff;

In a civil case, the onus of proving the genuineness of a deed is cast upon the party who produces it and asserts its validity. If there be conflicting evidence as to the genuineness, either by reason of alleged forgery or otherwise, the party asserting the deed must satisfy the court that it is genuine; and

There is no law which says that a claim automatically succeeds if the defence fails. A claim succeeds only if a prima facie claim is made out or the cause of action is admitted, and there is no defence.

[30] Letchumanan’s case, in so far as it relates to our appeal, essentially involves a case of fabricated power of attorney resulting in the fraudulent, and therefore wrongful transfer of land to the respondent-plaintiff, who claimed to be a bona fide purchaser. The thrust of the decision of the Federal Court is that the legal burden and initial onus of establishing that the deed of conveyance of the subject land (or transfer) was genuine, lies at all times with the person asserting its genuineness, namely the bona fide purchaser (who was the plaintiff and relied on such deed or transfer to maintain title to the subject land). As such the Federal Court concluded that the respondent, namely the bona fide purchaser bore the legal burden and initial onus to establish that the power of attorney purportedly given by the vendor-appellant to a third party was genuine too. Only then could the deed be construed as being genuine. It did not lie on the vendor appellant.

[31] Be that as it may, at para. 60 of the Federal Court judgment, the following lines appear:

"It was not like Alwie Handoyo v Tjiong Very Sumito [2013] 4 SLR 308, where the guarantor alleged that the guarantee was a fabrication, and the onus was upon the guarantor to prove fabrication.”

The effect of this example appears to exclude from the general treatise on the burden of proof and the onus of proof, cases of bank guarantees where the guarantor alleges fabrication or forgery.

[Distinction between documents required by law to be attested and documents not required by law to be attested]

[32] In our view, it is important to appreciate that under the Evidence Act 1950 (EA 1950) there is a distinction between proof of documents required by law to be attested and proof of documents not required by law to be attested. If a document is required by law to be attested, the primary evidence of execution of the document is the testimony of an attesting witness to the document: s 68 of the EA 1950. A power of attorney is a document required by law to be attested pursuant to the Powers of Attorney Act 1949. However, pursuant to s 85 of the EA 1950 every document purporting to be a power of attorney, and to have been executed before and authenticated by a Notary Public or Commissioner for Oaths, or any Court, Judge, Magistrate shall be presumed to have been so executed and authenticated. Examples of other documents required by law to be attested include wills under the Wills Act 1959, prescribed statutory forms under the National Land Code and prescribed statutory forms under the Companies Act 2016.

[33] In contrast, an attested document which is not required by law to be attested may be proved without examining attesting witness (s 72 of the EA 1950; Sarkar on Evidence Fourteenth Edition Vol. 1 1051). The contents of such documents may be proved by primary or secondary evidence pursuant to ss 62 and 63 of the EA 1950.

[34] In the light of the foregoing, the Federal Court’s decision in Letchumanan (supra) is a reaffirmation of the statutory rules of evidence relating to the proof of execution and proof of contents of documents. In Letchumanan (supra), the presumption that the power of attorney was so executed and authenticated was rebutted as the Federal Court at para. [66] of the judgment found that the impugned power of attorney was a forgery on the basis of fifteen substantial facts that were proven at the trial of the action.

[35] It can be appreciated that there is also another distinction between ss 68 and 72 of the EA 1950. Section 68 refers to “proving its execution” whereas s 72 refers to proof of document. In our considered view, s 68 relating to documents required by law to be attested deals with the evidentiary requirement of proving its execution by calling one attesting witness; whereas in the case of documents under s 72 there is no such requirement. The document may be proved once it is produced for the inspection of the court pursuant to s 62 of the EA 1950.

[36] In the context of this appeal, the plaintiff’s claim against the 3rd defendant as a surety is predicated on the guarantees. The guarantees in question are attested documents which are not required by law to be attested. In producing these letters of guarantee in court the plaintiff has satisfied the evidential burden of proving the contents of the same. Since the 3rd defendant asserts that the signatures are forgeries, which is to put the genuineness in issue, the burden lies on the 3rd defendant of proving that the signatures on the guarantees are not his. The trial judge had found that the 3rd defendant had proved on a balance of probabilities that the signatures on the impugned documents were forged. As alluded to in the preceding paragraphs, the evidence of the attesting solicitors were at best equivocal and corroborated the 3rd defendant’s allegation that the signatures on the documents had been forged. Since the 3rd defendant had proved that his signatures on the impugned documents were forged, the plaintiff’s claim cannot succeed.

CONCLUSION

[37] By reason of the foregoing, the plaintiff’s appeal [Appeal No. 2193] is dismissed with costs. The order of the learned judge allowing the plaintiff’s claim against Third Party A and B in respect of items (b) and (c) of the third party notice is set aside. The order of the learned judge allowing the plaintiff’s claim against Third Party A and B for indemnity is affirmed. Accordingly, Appeal No. 2151 and Appeal No. 2152 are allowed in part with no order as to costs.

sgd

Vernon Ong
Judge
Court of Appeal
Malaysia

Dated: 26th March 2018

COUNSEL

Civil Appeal No: M-02(NCVC)(W)-2151-11/2016

For the Appellant: Kenneth Gomez, Messrs Sabarudin Othman & Ho

For the Respondent: Wong Fook Meng (Tan Siok Khoon and Joshua Lim with him), Messrs Chee Siah Le Kee & Partners

Civil Appeal No: M-02(NCVC)(W)-2152-11/2016

For the Appellant: K. M. Chan (Tan Wei Wei with him), Messrs Lim Kian Leong & Co

For the Respondent: Wong Fook Meng (Tan Siok Khoon and Joshua Lim with him), Messrs Chee Siah Le Kee & Partners

Civil Appeal No: M-02(NCVC)(W)-2193-11/2016

For the Appellant: Wong Fook Meng (Tan Siok Khoon and Joshua Lim with him), Messrs Chee Siah Le Kee & Partners

For the Respondent: Sugandra Rao Naidu (Ooi Ai Jia and Lee Kuang Chow with him), Messrs Sern & Lee

Legislation referred to:

Companies Act 2016

Evidence Act 1950, Sections 62, 63, 68, 72, 85, 101, 102

Limitation Act 1953, Section 6

National Land Code

Powers of Attorney Act 1949

Rules of Court 2012, O 16, O 16 r 1(1)(a), O 16 r 1(1)(b), O 16 r 11

Wills Act 1959

Judgments referred to:

Abdul Wahdi bin Zakaria v Puspakom Sdn Bhd [2014] 4 CLJ 785 (CA)

Albert Chew v Hong Leong Finance Bhd [2001] 4 CLJ 419

AmBank (M) Bhd v Abdul Aziz bin Hassan & Ors [2010] 3 MLJ 784 (CA)

Ambank (M) Bhd v Kamariyah binti Hamdan & Anor[2013] 5 MLJ 448 (CA)

Ambank Malaysia Berhad v Tetuan Abd Gani Che Man [2014] 1 LNS 673 (CA)

Bank Bumiputra Malaysia Bhd v Tetuan Wan Marican Hamzah & Shaik & Lain-Lain [1994] 1 MLJ 124

Chase Perdana Berhad v S&P Industries (M) Bhd [2010] 1 LNS 276

Credit Corporation (M) Bhd v Fong Tak Sin [1991] 1 MLJ 409 (SC)

Firststate Pte Ltd v Raviland Pte Ltd (trading as Challenge Reticulation) [1994] 3 SLR(R) 523

Government of Malaysia v Dato Chong Kok Lim [1973] 2 MLJ 74

Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1997] 2 CLJ 104 (CA)

Hong Leong Nominees Sdn Bhd & Anor v Tommy Lim Boon Cheow & Anor ->para 11

Intan Gaya Sdn Bhd v Labuan Municipal Council [1996] MLJU 121

Kuala Lumpur Finance Bhd v KGV & Associates Sdn Bhd [1995] 1 MLJ 504

Kuwait Finance House (Malaysia) Bhd v Messrs Mohamed Ridza & Co [2014] 2 CLJ 239

Lachaman Lalchand & Assoc (Third Party) [2000] 1 CLJ 125

Letchumanan Chettiar Alagappan @ L. Allagappan & Anor v Secure Plantation Sdn Bhd [2017] 3 MLRA 501; [2017] 5 CLJ 418 (FC)

Lim Kean v Choo Koon [1970] 1 MLJ 158

Mohamed Sam bin Sailan v Sykt Asal Construction Sdn Bhd [2014] 10 MLJ 293

Myers v N&J Sherick [1974] 1 WLR 31

Pang Yeow Chow v Advance Specialist Treatment Engineering Sdn Bhd [2014] 8 CLJ 188 (CA)

Peninsular Concord Sdn Bhd v Syarikat Bekalan Air Selangor [2014] 5 AMR 586

Public Bank Bhd v Paul Cheah & Associates [2012] 1 LNS 831

Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 6 CLJ 673 (FC)

Standard Securities Ltd v Hubbard and Anor [1967] 2 All ER 622

Tan Chong & Sons Motor Company Sdn Bhd v Arumugam Packirisamy & Anor [1992] 3 CLJ 647

UMW Toyota (M) Sdn Bhd v Chow Weng Thiem [1996] 5 MLJ 678

Wardley Australia Limited & Anor v the State of Western Australia [1992] 175 CLR 514

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