AHMAD FAIZAL BIN AHMAD ZAMZAMI TELEKOM MALAYSIA BERHAD

AHMAD FAIZAL BIN AHMAD ZAMZAMI TELEKOM MALAYSIA BERHAD

The Court of Appeal held that the High Court erred in exonerating D1 and D2: D3’s wrongful acts were so closely connected with his role as Maintenance Supervisor that it was fair and just to impute vicarious liability and contractual indemnity under Clause 43.2 to D1 and D2. The Court affirmed D6’s liability at 20% for his limited but knowing participation. Consequently Appeal 112 was allowed (judgment entered against D1 and D2) and Appeal 102 was dismissed.

Citation
B-02(NCvC)(W)-102-01/2023 (Mahkamah Rayuan)
Parties
Plaintiff/appellant (appeal 112): Telekom Malaysia Berhad; Sixth Defendant/appellant (appeal 102): Ahmad Faizal bin Ahmad Zamzami; First Defendant: Mohd Shukor Bin Ahmad; Second Defendant: Syukur Communication Sdn Bhd; Third Defendant: Kaharuddin Bin Yusoff; Fourth Defendant: Fariul Fadzil Bin Abdul Rahim; Fifth Defendant: Mohd Saleh Bin Isthnin
Court
NCvC
Jurisdiction
Malaysia
Judgment Date
14 August 2024
Case Number
B-02(NCvC)(W)-102-01/2023 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal From High Court Judgment After Full Trial / Court of Appeal Judgment on Appeals B 02(ncvc)(w) 102 01/2023 and B 02(ncvc)(w) 112 01/2023 (decided)
Outcome
Appeal 112 allowed (in part) against D1 and D2; Appeal 102 dismissed
Legal Topics
Vicarious Liability, Contributory Negligence, Indemnity Under Contract, Scope of Employment, Exemplary Damages, Disciplinary Proceedings
Source Language
Malay/English
Tort Contract Employment Law Commercial Fraud Property/conversion Vicarious Liability Contributory Negligence Indemnity Under Contract +3 more

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Parties

Telekom Malaysia Berhad

Plaintiff/appellant (appeal 112)

Ahmad Faizal bin Ahmad Zamzami

Sixth Defendant/appellant (appeal 102)

Mohd Shukor Bin Ahmad

First Defendant

Syukur Communication Sdn Bhd

Second Defendant

Kaharuddin Bin Yusoff

Third Defendant

Fariul Fadzil Bin Abdul Rahim

Fourth Defendant

Mohd Saleh Bin Isthnin

Fifth Defendant

Procedural Posture

Civil Appeal From High Court Judgment After Full Trial / Court of Appeal Judgment on Appeals B 02(ncvc)(w) 102 01/2023 and B 02(ncvc)(w) 112 01/2023 (decided)

Legal Issues

  1. 1 Whether the copper cables were wrongfully removed (fraud/ conversion)
  2. 2 Whether the 1st and 2nd Defendants (D1/D2) are vicariously liable for acts of their employee (D3)
  3. 3 Whether D1/D2 are contractually liable to indemnify under Clause 43.2 of the Contract

Ratio Decidendi

The Court of Appeal held that the High Court erred in exonerating D1 and D2: D3’s wrongful acts were so closely connected with his role as Maintenance Supervisor that it was fair and just to impute vicarious liability and contractual indemnity under Clause 43.2 to D1 and D2. The Court affirmed D6’s liability at 20% for his limited but knowing participation. Consequently Appeal 112 was allowed (judgment entered against D1 and D2) and Appeal 102 was dismissed.

Court Disposition

Appeal 112 allowed (in part) against D1 and D2; Appeal 102 dismissed

Orders

  • Appeal 102 dismissed; costs assessed at RM20,000.00 (subject to allocator) payable by appellant (D6)
  • Appeal 112 allowed; High Court order dismissing claim against D1 and D2 set aside