Escolar Documentos
Profissional Documentos
Cultura Documentos
PERAYU-PERAYU
DAN
MOHD YUSOFF BIN MOHD KASSIM
RESPONDEN
Defendan Pertama
Defendan Kedua
Defendan Ketiga
Defendan Keempat
KORUM:
ALIZATUL KHAIR BINTI OSMAN KHAIRUDDIN, HMR
ROHANA BINTI YUSUF, HMR
PRASAD SANDOSHAM ABRAHAM, HMR
Keputusan: 28 Oktober 2014
1
GROUNDS OF JUDGMENT
We heard this appeal on 28th October 2014 wherein we had
[1]
allowed the appeal, dismissed the cross appeal and set aside the order
of the High Court. We append below our grounds for so doing. For the
purposes of this judgment we shall refer to the appellant as the 1st
defendant and the plaintiff as the appellant.
[2]
MATERIAL FACTS
i.
ii.
iii.
This was the land known as Geran 61146, Lot 2243, Mukim
Kuala Pilah, Negeri Sembilan, Darul Khusus (the said Land);
iv.
The plaintiff had asked to sight the said Land and after the
plaintiff had sighted the Land, the plaintiff was thereafter
brought to the office of Tetuan Halim Ismail (the 2nd defendant).
There, the plaintiff had issued a cheque for RM41,000.00;
2
v.
vi.
vii.
viii.
ix.
The said Land was eventually sold to another party i.e. the 3rd
defendant for a consideration of RM1,127,500.00.
[3]
(a)
In the alternative,
(b)
declaration
that
the
sale
and
transfer
of
the
(c)
(d)
(e)
[4]
[5]
The learned judge found that the plaintiff has proven its case
[6]
The court did not make any order on the declaratory reliefs prayed
for as the plaintiff had indicated at the outset of the trial that given the
circumstances of the case. These reliefs are no longer viable.
5
THE APPEAL
[7]
cheat the plaintiff in attempting to sell the said Land without being
owners of the said Land and that the 1st defendant had later transferred
the said Land to the 3rd defendant.
[8]
the case of the plaintiff? The 1st defendants counsel drew our attention
to the case of SCK Group Bhd & Anor v Sunny Liew Siew Peng &
Anor [2010] 9 CLJ 389, a decision of this court wherein the court held
that the tort of conspiracy to defraud attracted a standard of proof
beyond reasonable doubt where the court held:
And we refer to the judgment of His Lordship Justice Low Hop Bing (as
he then was) at para 13, 14 and 15 of the judgment and we quote:
Conspiracy To Defraud: Burden And Standard Of Proof
[13] The plaintiffs, who desire the court to give judgment as to the legal
right or liability, dependent on the existence of facts which he asserts in
6
relation to the tort of conspiracy to defraud the plaintiffs, bear the burden
of proving their case. Section 101(1) and (2) of the Evidence Act 1950
merit reproduction as follows:
101 Burden of proof
(1) Whoever desires any court to give judgment as to any legal right or
liability, dependent on the existence of facts which he asserts, must prove
that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said
that the burden of proof lies on that person.
(See eg, MBF Finance Bhd v. Sim Peng Bee & Anor [2003] 1 CLJ 690;
Tenaga Nasional Bhd (formerly Lembaga Letrik Negara Tanah Melayu) v.
Perwaja Steel Sdn Bhd (formerly Perwaja Terengganu Sdn Bhd) [1995] 4
CLJ 670, Nuri Asia Sdn Bhd v. Fosis Corporation Sdn Bhd[2006] 5 CLJ
307; and Koh Jui Hiong & Ors v. Ki Tak Sang & Ors [2009] 10 CLJ 205).
[14] The tort of conspiracy is not constituted by the conspiratorial
agreement alone. For conspiracy to take place, there must also be an
unlawful object, or, if not in itself unlawful, it must be brought about by
unlawful means: See Davies v. Thomas [1920] 2 Ch 189 per Warrington
LJ, and Seah Siang Mong v. Ong Ban Chai & Another Case [1998] 1 CLJ
Supp 295 HC per Ghazali J (now FCJ). There must be a co-existence of
an agreement with an overt act causing damage to the plaintiffs. Hence,
this tort is complete only if the agreement is carried into effect, thereby
causing damage to the plaintiffs. In order to succeed in a claim based on
the tort of conspiracy, the plaintiffs must establish:
(1) an agreement between two or more persons;
(2) for the purpose of injuring the plaintiff; and
(3) acts done in the execution of that agreement resulted in damage to the
plaintiff: Marrinan v. Vibart [1962] 1 All ER 869, 871 per Salmon J; and
7
[9]
Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd [2015] 7 CLJ 584
wherein the Federal Court ruled that in all civil cases where the plea is
one of fraud the standard of proof was on a balance of probabilities. We
also note that the Federal Court held that their judgment only applied to
the instant appeal before them and to future cases and should not be
utilised to set aside or review past decisions involving fraud in civil
claims. Therefore as our case in the present appeal arose in 2013 the
applicable standard of proof in this case beyond reasonable doubt (see
SCK Group Bhd & Anor (Supra)).
8
[12] Looking at the statement of claim and in particular para 33, 34 and
35 (see page 56 to 57 of the Appeal Record Vol. 1) it is clear that the
plaintiffs plea was that the 1st defendant and the said Rashdan bin Latif
(hereinafter referred to as Rashdan) had conspired to defraud the
9
plaintiff. However we note that Rashdan was not made a party to the suit
initiated by the plaintiff against the 1st defendant. It is our view that
parties to a conspiracy are jointly and severally liable for all loss flowing
from the conspiracy and should be named as parties, unless the names
of all the conspirators are not known. In which case, the plaintiff could
plead 1st defendant and another person whose name is presently
unknown to the plaintiff. Since Rashdan had not been made a party
and the alleged agreement to conspire is between him and the 1st
defendant, how could it be said that there was an agreement between
Rashdan and the 1st defendant to defraud the plaintiff. (See Bullen &
Leake & Jacobs Precedents of Pleadings at page 222).
[13] We note that in any event Rashdan was never called as a witness
by the plaintiff despite contemporaneous documents implicating him. In
that event where he did not attend as a witness, whether there existed
an agreement between the 1st defendant and Rashdan has not been
established beyond reasonable doubt. The plaintiff in 2012 well after he
had entered into a Sale and Purchase Agreement with the 1st defendant
and after he discovered the 1st defendant had transferred the said Land
to himself, lodged a police report (see page 492 of the Appeal Record
Vol. 2, exhibit P19). We observed that nowhere in the police report is
there a reference to the allegation of conspiracy nor is the name of
10
S:
J:
Ya, ini adalah statement saya, dan saya perlu nak terangkan
sedikit.
[14] The predominant purpose of the agreement (if at all) was for the
purpose of injuring the plaintiff and this has to be established. The
learned judge in considering all the evidence on a balance of
probabilities erred in not making a specific finding that the predominant
purpose of the conspiracy was to injure the plaintiff. Apart from this
ingredient not being pleaded specifically, there has been in our view no
11
On this
Signed
[DATUK DR. PRASAD SANDOSHAM ABRAHAM]
Judge
Court of Appeal Malaysia
Putrajaya
12
13