AZMI BIN HAJI JAAFAR NEOLITHIC SDN BHD

BL-A52NCvC-23-03/2023 Kand. 63 21/06/2024 23:49:52 IN THE SESSIONS COURT AT KLANG IN THE STATE OF SELANGOR CIVIL SUIT NO. BL- A52NCvC-23-03/2023 DATO’ AZMI BIN HAJI JAAFAR ..PLAINTIFF (No. K/P: 510115-02-5153) AND NEOLITHIC SDN BHD [Company No. [201301009979] (1039821-K)] ..DEFENDANT GROUNDS OF JUDGMENT (ENCLOSURE 28) [NOTICE OF APPLICATION FOR SUMMARY JUDGMENT UNDER ORDER 14 OF THE RULES OF COURT 2012] INTRODUCTION [1] This appeal stems from the decision of this Court dated 21.03.2024 in allowing the Plaintiff’s application for summary judgment under Order 14 of the Rules of Court 2012. [2] Aggrieved with the order made, the Defendant/appellant filed the instant appeal. For convenience, the parties will be referred to as they were in this Court. CAUSE PAPERS [3] Below are the cause papers involved: (i) Writ of Summons dated 23.3.2023 [Enclosure 1]; (ii) Statement of Claim dated 23.3.2023 [Enclosure 2]; BL-A52NCvC-23-03/2023 1|Page S/N wfmZ4yXQ8UunsVKnnYpvRw **Note : Serial number will be used to verify the originality of this document via eFILING portal (iii) Statement of Defence dated 7.11.2023 [Enclosure 31]; (iv) Reply to Defendant’s Defence dated 21.11.2023 [Enclosure 37]; (v) Notice of Application dated 11.12.2023 [Enclosure 38]; (vi) Affidavit in Support affirmed by Dato’ Azmi Bin Haji Jaafar on 11.12.2023 [Enclosure 39]; (vii) Affidavit in Reply affirmed by Jaffa Roger Dawkins on 27.12.2023 [Enclosure 40]. (viii)Affidavit in Reply affirmed by Dato’ Azmi Bin Haji Jaafar on 10.01.2024 [Enclosure 41]. FACTUAL BACKGROUND (The parties will be referred to as they were in this Court) [4] The plaintiff is the registered owner of the land held under GM1330, Lot No. 5474, Tempat Sungai Kembong, Mukim Klang, Daerah Klang, Negeri Selangor (“the Premise”). [5] The Defendant is a company incorporated on 26.3.2013 under the Malaysian Companies Commission with its nature of business includes dealers, supply, market, and ranch of agriculture in cow and to produce, buying, selling, trading, dealing in cow, dairy cattle, veal, import and export of cow and of all kinds. [6] On 5.3.2020, the parties had entered into a tenancy agreement for a term of 2 years starting from 7.10.2019 until 6.9.2021. [7] Upon expiration, parties then entered into a new tenancy agreement dated 28.6.2022, which extends from 7.10.2021 until 6.10.2023 (“the said Tenancy Agreement”). [8] The relevant clauses under the said tenancy agreement are as follows: - Clause 3.1(i) : Tenant to promptly pay to the Landlord sum of RM 10,500-00 on or before 5th day of each month and succeeding month to the Landlord BL-A52NCvC-23-03/2023 2|Page S/N wfmZ4yXQ8UunsVKnnYpvRw **Note : Serial number will be used to verify the originality of this document via eFILING portal Clause 3.1(vii) : Tenant to promptly pay and discharge all charges due for the supply of electricity and water (including sewerage) to the Demised Premises and telephone, internet and other utilities services (if used by the Tenant) or hereinafter levied by the relevant authorities during the term of this tenancy Clause 3.1(xiv) : Tenant to indemnify and keep indemnified the Landlord, his heirs, personal representatives, successors-in-title, estate and permitted assigns and its officers, servants, agents or otherwise against summons, actions, proceedings, claims and demands, costs, damages and expenses incurred (including but not limited to solicitors fees on a solicitors and client basis) which may be levied brought or made against the Landlord taking proceedings arising from or by reason of any act, omission, negligence, default, error or use of the Demised Premises by the Tenant Clause 5 : If the rent hereby reserved or any part thereof shall at any time be unpaid for fourteen (14) days after the same becomes due…the Landlord may forfeit the said Deposit and may at any time enter upon the Demised Premises or any part thereof as if this tenancy had not been granted Clause 6.1 : Either party may determine the Tenancy hereby created before its natural expiration by giving to other prior written notice in writing of his intention to do so at least two (2) months before the intended date of termination [9] The defendant has failed to pay the rental sums for the months of November 2021 until 29.12.2022. Plaintiff via letter dated 18.5.2022 has agreed to waive the 4 months rental payment and further demanded rental payments starting from April 2022 until further subsequent month with a monthly rental to be paid on/or before the 5th day of each month. [10] Upon not receiving any payment, Plaintiff then served a letter dated 6.9.2022 to demand the outstanding rental payments and further notify Defendant of Plaintiff’s entitlement to proceed with any reliefs exercisable. BL-A52NCvC-23-03/2023 3|Page S/N wfmZ4yXQ8UunsVKnnYpvRw **Note : Serial number will be used to verify the originality of this document via eFILING portal [11] The Plaintiff then via its solicitors had on 29.12.2022 served a letter informing the Defendant that the said Tenancy Agreement has now been terminated and thus no longer enforceable under the law (“Termination Letter”). The Defendant is indebted to pay the Plaintiff the amount of outstanding rental payments with double rental for the period of wrongful holding over by the Defendant. [12] Subsequently, the Plaintiff on 23.3.2023, filed the present suit seeking for, among others, delivery of vacant possession of the Premise, payment for the outstanding rental sum due and owing, and for payment of double rental from the Defendant. [13] On 17.04.2023, the Court entered judgment in default against the Defendant upon failure of the Defendant to enter an appearance. [14] Dissatisfied, the Defendant filed an application to set aside the judgment in default. [15] On 30.10.2023, the Court set aside the judgment in default. [16] On 11.12.2023, the Plaintiff filed an application for summary judgment.(encl. 38). [17] On 15.03.2024, the Court allowed Plaintiff’s application for summary judgment. [18] Dissatisfied, the Defendant appealed to the High Court. Grounds of the Application [19] Plaintiff urged that this Court to summarily decide the matter in Plaintiff’s favour. The Plaintiff submitted that the Defendant has failed to pay the outstanding rental and the Plaintiff is also entitled to the payment of double rental. The Defence and the Defendant’s affidavit in reply do not disclose any triable issues to be tried. Issues to be Tried [20] In opposing the Plaintiff’s application, the Defendant has raised the issues to be tried as follows: BL-A52NCvC-23-03/2023 4|Page S/N wfmZ4yXQ8UunsVKnnYpvRw **Note : Serial number will be used to verify the originality of this document via eFILING portal (i) the tenancy agreement between the parties is void on grounds of illegality as it contravenes the Malay reserved lands law; (ii) the Defedant has made payments. (iii) the termination notice dated 29.12.2022 is invalid as it contravenes clause 6 of the tenancy agreement. The termination notice is pre-mature. (iv) since the Plaintiff's claims are based on declaration and vacant possession it is a mixed claim which can only be determined via full trial and not summary judgment. The Law [21] It is trite law that merely raising issues that fail to show a triable defence on the merits would not suffice. In this situation, the plaintiff should not be deprived from invoking the summary process to obtain judgment instead of having to go through the lengthy trial process when the claim is manifestly plain and clear. This entrenched principle was reiterated in the Supreme Court case of Bank Negara Malaysia v. Mohd Ismail & Ors. [1992] 1 CLJ 14 (Rep); [1992] 1 CLJ 627; [1992] 1 MLJ 400 where it was held: "In our view, basic to the application of all those legal propositions, is the requirement under O. 14 for the court to be satisfied on affidavit evidence that the defence has not only raised an issue but also that the said issue is triable. The determination of whether an issue is or is not triable must necessarily depend on the facts or the law arising from each case as disclosed in the affidavit evidence before the court.". Decision Issue 1 : The tenancy agreement between the parties is void on grounds of illegality as it contravenes the Malay reserved lands law; [22] The Defendant submitted that the tenancy agreement between parties dated is void as it contravenes the Malay reserved lands law. There is a restriction on any dealing involving Malay Reserved Land. Primarily, any transaction must be between Malay people only. In this dispute, the agreement is between Plaintiff, a BL-A52NCvC-23-03/2023 5|Page S/N wfmZ4yXQ8UunsVKnnYpvRw **Note : Serial number will be used to verify the originality of this document via eFILING portal Malay individual, and Defendant, a mixed shareholder of Malay and non-Malay. Illegality in a contract is prohibited in Malaysia and the state of Selangor laws prohibit any dealing of Malay Reserved Land to a non-Malay. [23] In reply, the Plaintiff submitted that the premise and land were used for the purpose of “agriculture” which is allowed under s.5 , 115 (1)(a) and 115(4)of the National Land Coe 1965 Section 5 of the National Land Code 1965 (“NLC ”) states that: - "agriculture" includes the cultivation of any crop (including trees cultivated for the purpose of their produce), market gardening, the breeding and keeping of honey- bees, livestock and reptiles, and aquaculture” [24] In addition, clause 3.1(iii) of the said tenancy agreement between parties has specifically mentioned the permissible use of the said demise premise for agricultural purposes including livestock, breeding, and slaughtering livestock. In the event, that if it is used for other purposes, the Defendant would be at fault. [25] The Plaintiff submitted that the contention of the Defendant that the tenancy agreement is void because Defendant's company is not wholly owned by Malays is illogical because the Defendant has not taken any steps to raise such arguments and continued occupying the premises without paying rental upon allegedly knowing that the entire exercise is illegal. As such, it is an afterthought and not an issue to be tried. [26] Upon perusing the cause papers and submission by both parties, this Court agrees with the Plaintiff's submission that this is not an issue to be tried for the following reasons: (i) The demise premise has been used for agricultural purposes under the National Land Code 1965 and clause 3(iii) of the said tenancy agreement has clearly specified the purpose of tenancy according to the NLC. ; BL-A52NCvC-23-03/2023 6|Page S/N wfmZ4yXQ8UunsVKnnYpvRw **Note : Serial number will be used to verify the originality of this document via eFILING portal (ii) Any usage outside the scope permitted under clause 3 (iii) will be a breach of contract where the Defendant would be at fault and not the Plaintiff; (iii) The Defendant has not raised any issue of the Defendant company being not wholly owned by Malay as a restriction under the Malay reservation land law throughout the tenancy period for both the first tenancy agreement dated 5.03.2020 and the second tenancy agreement dated 28.06.2022 . No such argument was raised by the Defendant. (iv) Further , upon perusing correspondences between parties such as the Plaintiff’s letter dated 18.05.2022 and 29.12.2022, the Defendant also has not replied and raised the same. (vii) It is trite that the failure of Defendant to raise a complaint or disagreement with the claim or the manner of conduct between parties in agreement would constitute estoppel. This should have been raised at the earliest possible opportunity. In this regard, this Court referred to the Court of Appeal case of Yong Sze Fatt v. Pengkalan Securities Sdn. Bhd [2010] 1 CLJ 484; [2009] 1 LNS 334; [2010] 1 MLJ 85, in holding that the defendant's conduct amounted to estoppel said: "In our judgment, if the defendant had really nothing to do with the account or the trading of the shares by his employer through the account... the defendant as a reasonable man would no doubt have at the earliest opportunity raised a complaint, protest or query with the plaintiff in relation to the contract notes, contra statements and letter of demand sent to his home address. He had not done so. It is now too late in the day to deny liability after the commencement of the suit, a fortiori, in this appeal. The defendant's conduct certainly calls for the application of the doctrine of estoppel.". (viii) Further, under indoor management rule, the Plaintiff does not have a duty to to conduct an investigation as to the capacity of the Defendant in dealing with him. He is entitled to assume that all acts of the Defendant were regularly and properly performed. As such, the Defendant submission that the tenancy agreement is viod because the BL-A52NCvC-23-03/2023 7|Page S/N wfmZ4yXQ8UunsVKnnYpvRw **Note : Serial number will be used to verify the originality of this document via eFILING portal Defendant is not wholly owned by Malay is baseless and unsustainable. (refer to the Federal Court case of Pekan Nenas Industries Sdn Bhd v. Chang Ching Chuen & Ors [1998] 1 CLJ 793; [1998] 1 MLJ 465 ). [27] On this note, this Court finds that the conduct of Defendant raising illegality of the said tenancy agreement while continued occupying the premises without paying rental upon allegedly knowing that the entire exercise is illegal is uncalled for. The Defendant has “approbate” and “reprobate” and taking inconsistent stand in its position. [28] It is trite under the doctrine of election, which is to some extent related to the estoppel principle and the principle that one cannot approbate and reprobate, has commonly been invoked to prevent parties from adopting inconsistent positions in prosecuting causes of action , claiming remedies or defending an action. [29] This Court referred to the Court of Appeal case of Amsiah Rahim v Borneo Samudera Sdn Bhd [2024] CLJU 924 which held: “[29] His Lordship cited the following passage from the judgment of Scrutton L.J. in Verschures Creameries Ltd Hull and Netherlands Steamship Co Ltd [1921] 2 KB 608 at p. 611 which reads as follows: A plaintiff is not permitted to 'approbate and reprobate'. The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election- namely, that no party can accept and reject the same instrument…. The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction." [30] Based on the above reasons stated, this Court finds that the issue of illegality raised by Defendant is not a triable issue. BL-A52NCvC-23-03/2023 8|Page S/N wfmZ4yXQ8UunsVKnnYpvRw **Note : Serial number will be used to verify the originality of this document via eFILING portal Issue 2: the Defedant has made payments. [31] The Defendant submitted that the Defendant has made payments amounting to RM47,250.00 with the receipt at exhibit J-1 in their affidavit in reply. [32] This Court agrees with the Plaintiff's submission that this is not a triable issue as the Defendant has wrongly pleaded the facts which are neither reflected nor supported by exhibit. For instance, in exhibit J-1, the Defendant pleaded that there was purported payment made in 2.3.2023 whilst the exhibited receipt was for payment made in 2.3.2020. [33] Further, the purported payments made on 5.9.2019, 2.03.2023, and 3.3.2023 (exhibit J-1) are outside the period of Plaintiff’s claim. The Plaintiff’s claim is from April 2022 until December 2022. [34] Over and above, the receipt for purported payments made in 3.3.2023 was also made to Agro Qas Sdn Bhd, which in any circumstances is not the Plaintiff. [35] As such, the Defendant has failed to prove that payments for the outstanding rental claimed by the Plaintiff have been made. Hence, the outstanding rentals are still due and owing to the Plaintiff. Issue 3: the termination notice dated 29.12.2022 is invalid as it contravenes clause 6 of the tenancy agreement. The termination notice is pre-mature. [36] The defendant submitted that the tenancy agreement period will end on 6.10.2023. Clause 6 of the agreement states that any termination notice shall be made available within two (2) months of the intended termination date. 21. The termination notice dated 29.12.2022 is pre-mature and did not have an effect since Plaintiff failed to comply with the provision of the agreement. [37] In contrast, this Court agrees with the Plaintiff's submission that under clause 5.1 of the tenancy agreement, the Plaintiff is entitled to terminate and/or determine the tenancy agreement earlier than 6.10.2023 upon failure on part of the Defendant to pay the rental sum for more than 21 months and/or deliver vacant BL-A52NCvC-23-03/2023 9|Page S/N wfmZ4yXQ8UunsVKnnYpvRw **Note : Serial number will be used to verify the originality of this document via eFILING portal possession, in any event, amounts to fundamental breach of the said tenancy agreement. The non-payment of the rentals is clearly unjust and oppressive to the Plaintiff. Clause 5.1 of the said tenancy agreement stipulates: “the Landlord and the Tenant hereby expressly agree and declare that if the rent hereby reserved or any part thereof shall at any time be unpaid for FOURTEEN (14) days after the same shall become due (whether formally or legally demanded or not) or if the Tenant shall at any time fail or neglect to perform and observe any of the covenants and conditions herein contained….then in any such case it shall be lawful for the Landlord at any time thereafter to forfeit the said Deposit and the Landlord may at any time thereafter re-enter upon the Demised Premises or any part thereof in the name of the whole and henceforth hold and enjoy the same as if this tenancy had not been granted but without prejudice to any right of action or remedy of the Landlord for any antecedent breach of covenant by the Tenant…” [38] Apart from that, this Court is guided by the principle in the Court of Appeal case of Ching Yik Development Sdn Bhd v Setapak Heights Development Sdn Bhd [1997] 1 CLJ 287 : “[1b] Where the term that has been flouted is fundamental to the contract, the innocent party is entitled to treat himself as being discharged from further obligations under it. .. [3] In the instant case, the stipulation in the 1st agreement as to the payment of the purchase price was a fundamental term. The appellant's failure to pay the purchase price was fatal to his action..” [39] Further, in the case Benalec Marine Sdn Bhd v Liziz Standaco Sdn Bhd [2016] 4 MLJ 587 in referring to the case of Ban Hoo Joo Mines Ltd (supra) held as follows: “ (1) The obligation to pay monthly progress claims and such other payments as agreed was an important, significant and fundamental term of the contract. The respondent was obliged to pay the appellant and the evidence clearly showed the respondent did not do so. The respondent’s failure to pay BL-A52NCvC-23-03/2023 10 | P a g e S/N wfmZ4yXQ8UunsVKnnYpvRw **Note : Serial number will be used to verify the originality of this document via eFILING portal what was already due was an important element on the question of repudiation of the contract.” [40] As such, based on the above , due to the non-payments of the rentals, the Plaintiff is entitled to terminate the tenancy agreement via letter dated 29.12.2022. Hence, this is not a triable issue. Issue 4: Mixed claim can only be determined via full trial [41] The Defendant submitted since the Plaintiff claim are based on declaration and vacant possession it is a mixed claim which can only be determined via full trial and not summary judgment. [42] On the other hand, the Plaintiff submitted that the Defendant’s submission is misconceived. It is clear that this Court is empowered to grant the declaratory reliefs sought by the Plaintiff as provided by Section 65 (5)(b) Subordinate Courts Act which is as clear as daylight. [43] This Court agrees with the Plaintiff that this Court has the power to grant summary judgment for claims that includes declaratory relief. The Defendant's submission that declaratory relief may only be granted upon determining the matter via full trial and/or viva voce evidence is totally misconceived. [44] It is worthy of emphasis on this point, the Court of Appeal case of Tong Kim Soo v Tirai Prospektif Sdn Bhd [2019] MLJU 946 held that the Sessions Court allowed the application for summary judgment that includes declaratory relief which was later affirmed by the Court of Appeal. The Court of Appeal held as follows: “By the said suit the Respondent sought and was granted the following reliefs: “(a)A declaration that the Contract on the tenancy has been repudiated by the Appellant and therefore terminated by the Respondent; (b)The Appellant was to deliver vacant possession of the demised premises to the Respondent forthwith; BL-A52NCvC-23-03/2023 11 | P a g e S/N wfmZ4yXQ8UunsVKnnYpvRw **Note : Serial number will be used to verify the originality of this document via eFILING portal (c)The Appellant to make payment to the Respondent of the sum of RM 111,433.60 due and owing as at 8.5.2017 being the outstanding rentals, charges and double rentals, which are liquidated damages from 15.12.2016 to 8.5.2017; (d)The Appellant to make payment of double rentals together with Goods and Services Tax at 6% per year from 9.5.2017 until the date of vacant possession of the demised premises is delivered to the Respondent. [25] The Respondent’s application for summary judgment under Order 14 ROC 2012 was heard by the Session Court judge. [27] Upon considering the Respondent’s application and the Affidavit evidence, the Session court judge came to the conclusion that the Respondent’s application was allowed.” [45] As such, based on the above, this Court is empowered to grant summary judgment for claims that include declaratory relief. Hence, this is not a triable issue. Conclusion [46] It is settled law that where a plaintiff establishes a prima-facie case he is entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him. The burden on the defendant is basically to satisfy the court that there exist triable issues that can only be resolved in a full trial and not summarily. It is trite law that merely raising issues that fail to show a triable defence on the merits would not suffice. [47] At this juncture, the court has to consider the facts carefully to ascertain whether such issues that would necessitate a trial do in fact exist. If the defendant fails to discharge the burden to prove their existence, the plaintiff should not be deprived from invoking the summary process to obtain judgment instead of having to go through a long-drawn costly process of the full trial when the claim is manifestly plain and clear. This is the philosophy behind a summary judgment procedure. (The Court of Appeal case of Woolley Development Sdn. Bhd. v. Mikien Sdn. Bhd. [2008] 2 CLJ 303 is referred). BL-A52NCvC-23-03/2023 12 | P a g e S/N wfmZ4yXQ8UunsVKnnYpvRw **Note : Serial number will be used to verify the originality of this document via eFILING portal [48] Evidently, this Court finds that none of the issues raised by Defendant could be considered triable issues sufficient to resist Plaintiff’s application for summary judgment supported by sufficient prima-facie evidence. [49] Based on all the above reasons stated, this Court allowed the Plaintiff's application for summary judgment against the Defendant (encl. 38) with the costs of RM3,000.00. Dated: 19th June 2024 …………………………………….. Zarifah Binti Zainal Abdin, Sessions Court Judge, Klang Sessions Court, Selangor BL-A52NCvC-23-03/2023 13 | P a g e S/N wfmZ4yXQ8UunsVKnnYpvRw **Note : Serial number will be used to verify the originality of this document via eFILING portal