SULIMAN BIN ABDULLAH 1. MOHAMED KHALED BIN NORDIN 2. KERAJAAN NEGERI JOHOR 3. PUJB RETAIL SDN BHD

[JA-21NCvC-13-03/2020] 7 October 2020 ----------------------------------------------------------------------------------------------------------------------------- -------- IN THE HIGH COURT OF MALAYA AT JOHOR BAHRU IN THE STATE OF JOHOR DARUL TAKZIM, MALAYSIA CIVIL SUIT NO: JA-21NCvC-13-03/2020 BETWEEN SULIMAN BIN ABDULLAH … PLAINTIFF AND 1. MOHAMED KHALED BIN NORDIN 2. KERAJAAN NEGERI JOHOR 3. PUJB RETAIL SDN BHD … DEFENDANTS (No Syarikat: 1102748-H) GROUNDS OF JUDGMENT Introduction [1] This is the First Defendant’s application (“this Application”) in Enclosure 11 to strike out the Plaintiff’s Writ and Statement of Claim dated 12 February 2020 pursuant to Order 18 rule 19 of the Rules of Court 2012 (“Rules of Court”). ------------------------------------------------------------------------------------------------------------------------- ------------ EVROL MARIETTE PETERS JC 1 [JA-21NCvC-13-03/2020] 7 October 2020 ----------------------------------------------------------------------------------------------------------------------------- -------- [2] This Application was allowed based on the following reasons. The background facts [3] The Plaintiff is an individual, whilst the First Defendant was the Chief Minister of Johor at the material time, and the Second Defendant is the State Government of Johor. The Third Defendant is a state fully-owned company. [4] On 25 April 2015, the First Defendant officiated and launched a Programme known as JohorMart (“the Programme”), the purpose of which was intended to encourage entrepreneurship amongst Bumiputera in the grocery business. [5] The Third Defendant and Majlis Amanah Rakyat (“MARA”) were also involved in this Programme. The Plaintiff participated in the Programme by entering into an Operator Agreement with the Third Defendant dated 4 September 2016, investing a sum of MYR250,000 as business capital, and subsequently entering into a tenancy agreement with a landlord of a shop house at a monthly rental of MYR4,000. [6] Although the Plaintiff’s JohorMart grocery store was finally opened on 1 April 2017, due to certain challenges, which the Plaintiff attributed to the Third Defendant, the Plaintiff suffered losses. Efforts to restructure the business plan of the Programme were in vain, and as a result thereof, the Plaintiff issued a letter to the Perbadanan Usahawan Johor Sdn Bhd (a shareholder of the Third ------------------------------------------------------------------------------------------------------------------------- ------------ EVROL MARIETTE PETERS JC 2 [JA-21NCvC-13-03/2020] 7 October 2020 ----------------------------------------------------------------------------------------------------------------------------- -------- Defendant), to surrender the JohorMart grocery store. [7] On 10 February 2020, the Plaintiff instituted this action. The applicable law [8] The starting point of reference in this Application is Order 18 rule 19(1) of the Rules of Court, which reads as follows: Order 18 – Pleadings Rule 19. Striking out pleadings and endorsements (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that – (a) it discloses no reasonable cause of action or defence, as the case may be; (b) it is scandalous, frivolous or vexatious: (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. [9] The law on striking out is trite and has been encapsulated by the Supreme Court in Bandar Builder Sdn Bhd & Ors v. United ------------------------------------------------------------------------------------------------------------------------- ------------ EVROL MARIETTE PETERS JC 3 [JA-21NCvC-13-03/2020] 7 October 2020 ----------------------------------------------------------------------------------------------------------------------------- -------- Malayan Banking Corporation Bhd [1993] 4 CLJ 7, [1993] 3 MLJ 36, where it was distilled by Mohamed Dzaiddin SCJ (as he then was) in the following passage: The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney- General of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] 3 Ch. 274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 (which is in pari materia with our O. 33 r. 2 Rules of the High Court) (Hubbuck v. Wilkinson) (supra). The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable. [Emphasis added]. [10] I am guided also by the Federal Court in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1, where it was stated by Ramly Ali FCJ: The principles for striking out pleadings pursuant to O.18 r.19 of the ROC are well settled. It is only in a plain and obvious case that recourse should be had to the summary process under this rule; and this summary process can only be adopted when it can clearly be seen that a claim on the face of it is obviously unsustainable (see Bandar Builder (supra), Hubbuck & Sons Ltd .v. Wilkinson, Heywood & Clard Ltd [1889] 1 QB 86; Attorney General of the Duchy of Lancester .v. London and North Western Railway Company [1892] 3 Ch 274). The test for striking out application under O.18 r.19 of the ROC as ------------------------------------------------------------------------------------------------------------------------- ------------ EVROL MARIETTE PETERS JC 4 [JA-21NCvC-13-03/2020] 7 October 2020 ----------------------------------------------------------------------------------------------------------------------------- -------- adopted by the Supreme Court in Bandar Builder (supra) are inter alia as follows: a) it is only in plain and obvious cases that recourse should be had to the summary process under the rule; b) this summary procedure can only be adopted when it can be clearly seen that a claim or answers is on the face of it ‘obviously unsustainable’ (emphasis added); c) it cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence; and d) If there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O.33 r.3 of the ROC; and e) The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that defenses raised are not arguable. . [11] The question that arises is what do these phrases in Order 18 Rule 19 (1) mean? ‘Scandalous’ generally refers to matters which improperly cast a derogatory light on someone, usually a party to an action with respect to moral character or uses repulsive language; ‘frivolous or vexatious’ generally refers to a groundless action, with no prospect of success, often raised to embarrass or annoy the other party to on action; and ‘abuse of the process of the court’ generally refers to situations where the court’s process is used for an unlawful object and not for the actual purpose intended for justice: per Ramly Ali JCA (as he then was) in See Thong & Anor v Saw Beng Chong [2013] 3 MLJ 235. [12] It is, therefore, the duty of the Court to scrutinise, with a fine-tooth comb, the evidence and the merits of the case to determine ------------------------------------------------------------------------------------------------------------------------- ------------ EVROL MARIETTE PETERS JC 5 [JA-21NCvC-13-03/2020] 7 October 2020 ----------------------------------------------------------------------------------------------------------------------------- -------- whether the action was bound to fail. This principle was set out by the Privy Council in Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1, and the Supreme Court in Raja Zainal Abidin bin Raja Haji Tachik & Ors v British-American Life & General Insurance Bhd [1993] 3 MLJ 16. Contentions and findings [13] The gist of the Plaintiff’s claim against the First Defendant was negligent misrepresentation and negligence, in influencing the Plaintiff to participate in the Programme, and failing to assist the Plaintiff in managing, and developing the JohorMart grocery store. Whether there was a relationship between the parties [14] Since the Plaintiff averred that there was negligent misrepresentation on the part of the Defendant, what is vital to establish at this juncture is the nature of the relationship between the parties. [15] It is undisputed that there was no contractual relationship between the Plaintiff and the First Defendant. The Plaintiff had, on his own, entered into negotiations with the Third Defendant, which the First Defendant was neither part of, nor present at any meeting between the Plaintiff and the Third Defendant. Any dealing or transaction entered into after the launch of the Programme, was beyond the control and purview of the First Defendant. There was no direct relationship with the Plaintiff and all business matters or otherwise between the Plaintiff and the Second Defendant or the Third ------------------------------------------------------------------------------------------------------------------------- ------------ EVROL MARIETTE PETERS JC 6 [JA-21NCvC-13-03/2020] 7 October 2020 ----------------------------------------------------------------------------------------------------------------------------- -------- Defendant were done directly without any direct involvement of the First Defendant. [16] The subsequent issue that needed to be addressed was whether there was a special or fiduciary relationship, where one party relies on the other, and where one is in a dominant position. This is in line with the principle in Hedley Byrne & Co Ltd v Heller & Partners [1964] AC 465 (“Hedley Byrne”) which has been assimilated into Malaysian jurisprudence via a plethora of cases including Seow Hoon Hin v. Hartalega Holdings Berhad & Ors [2019] 1 LNS 779, Ketua Pengarah Jabatan Kerja Raya v. Strongkota Development Sdn Bhd & Another Appeal [2016] 3 CLJ 741, and Sim Thong Realty Sdn Bhd v Teh Kim Dar @ Tee Kim [2003] 3 MLJ 460. In Sim Thong Realty Sdn Bhd v Teh Kim Dar @ Tee Kim, it was stated by Gopal Sri Ram JCA: If the misrepresentation was made negligently, the remedy of the representee lies in damages in the tort of negligence under the assumption of responsibility and reliance doctrine laid down in Hedley Byrne & Co Ltd v Heller & Partners [1964] AC 465. In such a case, the representee must plead and prove a special relationship giving rise to a duty of care as well as the other elements that go to constitute the tort of negligence. So far as the relevance of the tort in relation to pre- contractual and contractual statement is concerned, we would quote with approval the following passage from Sinnadurai on the Law of Contract (3rd Ed) at p 243: Under English Law, until the decision of the House of Lords in decision Hedley Byrne & Co Ltd v Heller and Partners Ltd, innocent misrepresentation included negligent misrepresentation. However since Hedley Byrne and the coming into force of the Misrepresentation Act 1967, there appears now to be a distinction between negligent misrepresentation and innocent misrepresentation. Negligent misrepresentation is generally confined to cases where a duty is imposed to take care in making statement. Such a duty may arise under a contract, where the parties stand in a fiduciary relationship: Nocton v Ashburton [1994] AC 932 or out of a 'special relationship': Hedley Byrne. Where a special relationship exists, a negligent misstatement may not only be a breach of contractual warranty, but ------------------------------------------------------------------------------------------------------------------------- ------------ EVROL MARIETTE PETERS JC 7 [JA-21NCvC-13-03/2020] 7 October 2020 ----------------------------------------------------------------------------------------------------------------------------- -------- also an actionable tort as a breach of the duty which exists throughout pre-contractual negotiations until making of the final contract. In Selangor United rubber Estates Ltd v Cradock & Ors [1965] 1 Ch 896 the court held that where a plaintiff alleged a breach of duty arising from any given relationship, he has to specify with precision the relationship under which the duty arose: in this case it was not clear whether the plaintiff was alleging the ordinary relationship of banker and customer or some other special relationship.” [Emphasis added.] [17] The Plaintiff submitted that a fiduciary relationship existed between him and the First Defendant by virtue of the First Defendant’s position as the Chief Minister at the material time. At this juncture, reference is made Kerajaan Negeri Selangor & Ors v. Sagong bin Tasi & Ors [2005] 4 CLJ 169; [2005] 6 MLJ 289, where it was stated by Gopal Sri Ram JCA (as he then was), in the following passage: In a system of Parliamentary democracy modelled along the Westminster lines, it is Parliament which is made up of the representatives of the people that entrusts power to a public body. It does this through the process of legislation. The donee of the power - the public body - maybe a Minister of the Crown or any other public authority. The power is accordingly held in trust for the people who are, through Parliament, the ultimate donors of the power. It follows that every public authority is in fact a fiduciary of the power it wields. Sometimes the power conferred is meant to be exercised for the benefit of a section or a class of the general public, as is the case here. At other tunes it is to be exercised for the general good of the nation as a whole, that is to say, in the public interest. But it is never meant to be misused or abused. And when that happens, the courts will intervene in the discharge of their constitutional duty. [18] In this case, however, the Plaintiff’s grievance was based on a private right, and not his right as a member of the public. In my view, the distinction is important as it renders absent the ------------------------------------------------------------------------------------------------------------------------- ------------ EVROL MARIETTE PETERS JC 8 [JA-21NCvC-13-03/2020] 7 October 2020 ----------------------------------------------------------------------------------------------------------------------------- -------- necessary fiduciary relationship between the Plaintiff and the First Defendant in such context. Whether the First Defendant had made any misrepresentation [19] Even if there was in existence a fiduciary relationship between the Plaintiff and the First Defendant, it is for the Plaintiff to establish that a representation was made in the first place. It must be borne in mind that a representation is a statement of fact, and not statements of opinion or endorsements [20] The ‘representation’ alleged by the Plaintiff was statements purportedly made by the First Defendant, in officiating and launching the Programme, which had purportedly influenced, convinced and encouraged the participation from the Plaintiff, as it was touted as an initiative by the Johor State Government; and that such ‘representation’ had supposedly led the Plaintiff to believe that the Third Defendant had the capacity to develop the JohorMart concept grocery. [21] In my view, this argument is untenable since the purported representations were not statements of fact. The First Defendant made a speech to launch and officiate the Programme. The Plaintiff attempted to dissect the First Defendant’s speech, and to carve out words which he alleged were representations made. In my view, this amounted to cherry-picking words and excerpts out of context, and a futile exercise in splitting hairs. In fact, reading the speech as a whole, regardless of any endorsement or approval that it may have contained, by no stretch of the imagination could it ------------------------------------------------------------------------------------------------------------------------- ------------ EVROL MARIETTE PETERS JC 9 [JA-21NCvC-13-03/2020] 7 October 2020 ----------------------------------------------------------------------------------------------------------------------------- -------- amount to any kind of representation, let alone misrepresentation. [22] In any event, a misrepresentation is a representation that was untrue, when made. There was no evidence adduced by the Plaintiff that the representations when made, were indeed false. [23] In fact, I find it unfathomable that a cause of action could be founded on excerpts of a speech delivered by a Minister at a launch of a programme; and will go as far as to say that this Application must be allowed not only because the cause of action is obviously unsustainable, but also to uphold the integrity of the judicial system by declining to adjudicate on matters which are unsubstantiated. Conclusion [24] In the upshot, based on the aforesaid reasons, and after careful consideration of all the evidence before this Court, and written and oral submissions of both parties, this Application was allowed with costs in the sum of MYR2,500 (subject to allocatur fees). Dated: 7 October 2020 ..................SIGNED................. (EVROL MARIETTE PETERS) Judicial Commissioner High Court, Johor Bahru ------------------------------------------------------------------------------------------------------------------------- ------------ EVROL MARIETTE PETERS JC 10 [JA-21NCvC-13-03/2020] 7 October 2020 ----------------------------------------------------------------------------------------------------------------------------- -------- Counsel: For the Plaintiff – Mohd Fairuz bin Abdullah; Messrs Mohd Najid & Partners For the First Defendant – Zulkifli bin Jafar; Messrs Wan Emiliana Cases referred to:  Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7, [1993] 3 MLJ 36  Hedley Byrne & Co Ltd v Heller & Partners [1964] AC 465  Kerajaan Negeri Selangor & Ors v. Sagong bin Tasi & Ors [2005] 4 CLJ 169; [2005] 6 MLJ 289  Ketua Pengarah Jabatan Kerja Raya v. Strongkota Development Sdn Bhd & Another Appeal [2016] 3 CLJ 741  Raja Zainal Abidin bin Raja Haji Tachik & Ors v British-American Life & General Insurance Bhd [1993] 3 MLJ 16  See Thong & Anor v Saw Beng Chong [2013] 3 MLJ 235  Seow Hoon Hin v. Hartalega Holdings Berhad & Ors [2019] 1 LNS 779  Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1  Sim Thong Realty Sdn Bhd v Teh Kim Dar @ Tee Kim [2003] 3 MLJ 460  Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1 ------------------------------------------------------------------------------------------------------------------------- ------------ EVROL MARIETTE PETERS JC 11 [JA-21NCvC-13-03/2020] 7 October 2020 ----------------------------------------------------------------------------------------------------------------------------- -------- Legislation referred to:  Rules of Court 2012, Order 18 rule 19 ------------------------------------------------------------------------------------------------------------------------- ------------ EVROL MARIETTE PETERS JC 12