Muhamad Eaddie bin Abdullah @ Awang [ Identity Card No.: 820304115629 ] Leng Tat Kong [ Identity Card No.: 780905065476 ] S Sathy Vel Naidu a/l Shunmugam [ Identity Card No.: 610430025717 ]

IN THE MAGISTRATE COURT AT KUANTAN IN THE STATE OF PAHANG [CIVIL SUIT NO: CA-A72NCvC-435-12/2019] BETWEEN Muhamad Eaddie bin Abdullah @ Awang [ Identity Card No.: 820304115629 ] Leng Tat Kong [ Identity Card No.: 780905065476 ] ...PLAINTTIFS AND S Sathy Vel Naidu a/l Shunmugam [ Identity Card No.: 610430025717 ] …DEFENDANT GROUNDS OF JUDGMENT (ENCLOSURE 32) Introduction [1] In this case, the Plaintiffs filed enclosure 32 in which the Plaintiffs sought leave to discontinue their writ action with liberty to file afresh pursuant to the Order 21 rule 3 of the Rules of Court 2012 ('ROC'). [2] The Defendant objected to the Plaintiffs’ application to discontinue and also raised an objection against the Plaintiffs being allowed the right to file afresh in the event the discontinuance of the Plaintiffs’ writ is allowed by the court. 1 [3] On 05.05 2021, this Court allowed the Plaintiffs’ application to discontinue the Writ of Summons and Statement of Claim with liberty to file afresh and ordered the Plaintiffs to pay costs of RM1,000.00 to the Defendant. The reasons for the decision of this Court are set out as below. Brief Facts [4] The Plaintiffs claimed that they had granted a RM73,000.00 loan to the Defendant to facilitate the development of a project undertaken by the latter. [5] The Defendant agreed to pay back the sum of money granted by the Plaintiffs with an additional 50% from the amount lent by the Plaintiffs to the Defendant amounting to RM109,500.00. [6] There were several payments made by the Defendant amounting to RM20,000.00 in two separate transactions in 09.03.2016 and 17.03.2016, respectively. The Defendant had fallen into default on the payment within the stipulated period, and that being the case, the Plaintiffs thereafter recalled the balance sum of RM89,500.00 from the Defendant. [7] The Plaintiffs filed a civil suit against the Defendant due of the failure of the Defendant to complete the remaining balance of RM89,500.00 to the Plaintiffs. [8] Of course there were several other applications filed by both parties in this case but to cut it short, this Court will directly discuss enclosure 32 in which the Plaintiffs’ counsel made an application to discontinue the suit 2 “with liberty to file afresh”. The Defendant’s counsel objected the application to discontinue the suit, however if it is granted the Defendant insisted that the discontinuance shall be “with no liberty to file afresh”. Reasons for the decision [9] The Defendant's objections to the Plaintiffs’ application were premised on the reasons as follows: i) The doctrine of estoppel; [10] The Defendant referred to the case of LAI YOKE NGAN V. CHIN TECK WEE & ANOR. (1997) 2 MLJ 565 where the Court states as follows: “In the context of litigation, it usually arises where a party to an action has at least two alternative and mutually exclusive courses open to him. If by words or conduct he elects to pursue one of them and thereby leads his opponent to believe that he has abandoned the other, he may, if the circumstances so warrant, be precluded from later changing course. Decisions upon the application of the doctrine to litigation are but mere illustrations of the broader proposition. Indeed this is true of all cases where the doctrine has been applied to other spheres of human activity.” [11] Accordingly, the Defendant argued that the Plaintiffs were estopped to file any civil suit against the Defendant prior to the agreement made between both parties for the first civil suit was withdrawn with the liberty to file afresh back in 2017. Meanwhile, the Plaintiffs averred that the first 3 civil suit was withdrawn because the Defendant had agreed to pay the balance sum and make a full settlement. However, albeit the withdrawal, the Defendant for the second time had failed to fulfil the terms of the settlement and had resulted the Plaintiffs to file the second (current) civil suit. [12] The Court refers to BOUSTEAD TRADING (1985) SDN. BHD. v. ARAB-MALAYSIAN MERCHANT BANK BERHAD, FCJ [1995] 4 CLJ 283 states as follows: “We would add that it is wrong to apply the maxim "estoppel may be used as a shield but not a sword" as limiting the availability of the doctrine to defendants alone. Plaintiffs too may have recourse to it. The true nature of the doctrine in this context is that stated by Lord Russell of Killowen in Dawsons Bank v. Nippon Menkwa Kabushiki Kaisha LR 62 IA 100, 108: Estoppel is not a cause of action. It may (if established) assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action, or (to put it in another way) by preventing a defendant from asserting the existence of some fact the existence of which would destroy the cause of action..” [13] The concept of estoppel in conduct of litigation has no application in the present case as the Defendant has not taken a consistent position as submitted by the Plaintiffs. The withdrawal in respect of a suit filed in court is merely discontinuance of the suit and not an abandonment of any claim 4 in that suit against the Defendant unless the Plaintiffs agreed that such discontinuance will operate as a full discharge of the Defendant’s obligation. Meanwhile in this case, it’s negative. ii) The admissibility of Affidavit In Support (AIS) sworn by the Plaintiffs’ solicitor; and [14] The Defendant further asserted that the AIS for enclosure 32 should not have been deposed by the Plaintiffs’ solicitor but by the Plaintiffs themselves. On that score, the Defendant averred that without a supporting affidavit, the Plaintiffs in the present case are in no position to satisfy the Court. The Defendant cited the case of MILLION GROUP CREDIT SDN BHD V. LEE SHOO KOON & ORS [1985] CLJ REP 575; [1985] 1 CLJ 181 which is an authority for the proposition of law that where disputed questions of fact are involved, it is for the parties and not their solicitors to affirm affidavits relating thereto. [15] The Defendant further relied on the guiding principles laid down in the High Court decision in KAPLANDS SDN BHD v. LEE CHIN CHENG DENGKIL OIL PALM PLANTATIONS SDN BHD [2000] 4 CLJ 281 - The affidavit should not have been deposed by the Plaintiff's solicitor. It should have been deposed by an appropriate officer of the Plaintiff familiar with the facts. Can a solicitor depose an affidavit for and on behalf of a litigant? [16] The question is, can a solicitor depose an affidavit for and on behalf of a litigant? To answer this, this Court refers to the case of MALAYAN BANKING BERHAD V. CHATEREFIELD CORPORATION SDN BHD 5 [2001] 6 CLJ 407; [2001] 3 AMR 3686, the point of debate was whether a solicitor may depose an affidavit on behalf of a litigant. Ramly Ali JC (as he then was) took the view that: “(a) There are no express provisions of law relating to this matter, nor is there any provision of law which specifically states that an affidavit such as that in the instant case cannot be accepted by the court; (b) On the authorities, a solicitor may depose an affidavit on behalf of the litigant, provided the following conditions are fulfilled, ie: (i) The facts to be deposed must not be contentious or disputed questions of fact; (ii) The facts to be deposed must be from his knowledge; and (iii) The solicitor must have been authorised by the litigant, to depose the affidavit on his behalf.” [17] Having read the contents of the AIS, in my considered opinion, it does not descend into the arena of conflict as between the litigants but more of an explanation on the reason of why the application to discontinue should be made. In the present case, the Plaintiff's solicitor conceded that the main reason of the filing of enclosure 32 is because of the clerical error of the National Registration Identification Card “NRIC” Number of the Second Plaintiff, Mr. Leng Tat Kong from 780905-06-5476 to 780905-06- 5475. The mistake is merely on the last number of the NRIC from “6” to “5”. 6 [18] Having realised the mistake, the Plaintiffs then filed an application under Order 20 of the ROC to amend the Writ of Summons and Statement of Claim and were granted leave to amend from the Magistrate Court on 13.01.2020, but it was reversed by the High Court on 26.01.2021. The Plaintiffs then sought to withdraw the main suit with the liberty to file afresh orally, but it was opposed by the Defendant contending that it should be made through Order 21 of the ROC. [19] After perusing enclosure 32, in my considered opinion, the Plaintiffs’ solicitor is the one who has the knowledge of what transpired before, during and after the preparation of the cause papers, thus she would be the best person to depose on the said AIS. It would be against the nature of deposition if the Plaintiffs were to depose any facts without or within their personal knowledge. This Court refers to Order 41 Rule 5 of the ROC which provided as below: 5. Contents of affidavit (O. 41 r. 5) (1) Subject to Order 14, rules 2(2) and 4(2), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove. (2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information of belief with the sources and grounds hereof. 7 [20] In the Court of Appeal case of TIRUMENIYAR SINGARA VELOO v. MALAYSIAN MOTOR INSURANCE POOL [2017] 8 CLJ 682, it is stated as follows: “[11] We do not think the learned judge had stated the correct principles of law on affidavits. (See Janab's Key to Civil Procedure, 5th edn, pp. 329 to 336). It is well settled that a supporting affidavit in an originating summons must be filed by the plaintiff or his power of attorney or any person who is entitled by law to do so. Order 28 r. 3C by itself does not impose the same restriction in respect of affidavit in reply by the defendant. However, the affidavit in reply if filed by any other authorised person of the defendant who does not have personal knowledge may not have probative force as per O. 41 r. 5. (See Awaludin Sham Bokhari v. Public Prosecutor [2016] 1 LNS 2; [2016] 2 AMR 20).” [21] This Court is of the considered view that the averment advanced by the Defendant cannot be applied in the present case, because the Plaintiffs’ solicitor has fulfilled all the three requirements set out in the case of MALAYAN BANKING BERHAD V. CHATEREFIELD CORPORATION SDN BHD [2001] 6 CLJ 407; [2001] 3 AMR 3686. A solicitor may depose an affidavit on behalf of the litigant, provided the following conditions are fulfilled: (i) The facts to be deposed must not be contentious or disputed questions of fact; (ii) The facts to be deposed must be from his knowledge; and (iii) The solicitor must have been authorised by the litigant, to depose the affidavit on his behalf.” 8 [22] Hence, in my considered view, the AIS is admissible as it has satisfied the guidelines set out in the case referred and also procedural requirement stipulated under Order 41 Rule 5 of the ROC. iii) The prejudice and the disadvantages suffered by the Defendant. [23] The Defendant further averred that by granting liberty to file afresh, the Court thereby erased the advantages gained by the Defendant thus constituted grave prejudice to the Defendant which could not be compensated by costs. [24] However, this Court is of the considered view that the proceeding has yet to reach a stage so advance that the Plaintiffs could not discontinue their action with the liberty to file afresh. Moreover, the Defendant is not barred from raising any defence to resist a subsequent suit by the Plaintiffs based on the same causes of action raised in this case. [25] Essentially, the facts deposed therein have yet to be tested and the legal arguments have yet to be ventilated before the Court. Hence, there was nothing before the Court to suggest that the leave to discontinue with the liberty to file afresh applied for by the Plaintiffs had caused an injustice to the Defendant. The last question the Court has to decide is whether the Plaintiffs should be punished for the mistakes committed by their solicitor? [26] This Court refers to Lord Denning in DOYLE V. OLBY (IRONMONGERS) LTD [1969] 2 ALL ER 119 said at page 1214 that: 9 “We never allow a client to suffer for the mistakes of his counsel if we can possibly help it. We will always seek to rectify it so far as we can. We will correct it whenever we are able to do so without prejudice to the other side.” [27] Similar principle was adopted by the Court of Appeal in TENAGA NASIONAL BHD V. PRORAK SDN BHD [2000] 1 MLJ 479 at page 483 when Gopal Sri Ram JCA in delivering the judgment of the Court said: “This case demonstrates the terrible harm that may be visited upon the litigant’s head because of his solicitor’s mistake. We hasten to add that the solicitor concerned is no longer on record in the proceedings before us. Whenever possible, where there is no risk of sacrifice of principle in the name of justice or at the alter of convenience, we do our best to ensure that a lay client does not suffer because of the mistake of his legal advisers. We do so in the interest of justice. When we act, we always bear in mind what Lord Denning said in Doyle v. Olby (Ironmongers) Ltd [1969] 1 All ER 119 at page 121: “We never allow a client to suffer for the mistake of his counsel if we can possibly help it. We will always seek to rectify it as far as we can. We will correct it whenever we are able to do so without injustice to the other side. Sometimes the error has seriously affected the course of the evidence, in which case we can at best order a new trial.” 10 [28] Accordingly, the Court is of the considered view that a client should not suffer from the negligence or mistake of his solicitor that would resulted depriving him of the opportunity of ventilating the merits of his case at trial. [29] As far as the facts of the present case is concerned, the Plaintiffs will be gravely prejudiced and will suffer injustice if the leave to discontinue be granted without the liberty to file afresh. Conclusion [30] For reasons adumbrated above, this Court allowed enclosure 32 with liberty to file afresh with costs of RM1,000.00 to be paid to the Defendant. DATED: 5TH JULY 2021 (NOR IZZATI BINTI ZAKARIA) Magistrate Magistrate Court Kuantan, Pahang 11 Counsel: For the Plaintiffs – Halimaton Saadiah binti Abu Samah; M/s Jasmadi Izhan & Azwani For the Defendant – Kumeraselvam A/L Sanderan; M/s Jacob Goldie S. S. Chew 12