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IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(COMMERCIAL DIVISION)
SUIT NO: 24NCC-130-04/2013
HAMIZAT BIN YAHYA
v.
MOHD NORFAIZAL NORDIN
GROUNDS OF JUDGMENT
The Plaintiff’s claim against the Defendant is for a declaration that
the transfer of shares of the Plaintiff in a company known as Dimensi
Hasil Sdn. Bhd. (‘Dimensi’) to the Defendant be declared void and
the shares restored to the Plaintiff as the lawful owner. The Order as
prayed are as follows,
“ a)
Bahawa Defendan adalah dilarang daripada melupuskan saham
yang dimilikinya sehingga keputusan kes ini.
b)
Satu deklarasi bahawa Borang 32A yang bertarikh 9.11.2010
adalah tidak sah dan/atau batal.
c)
Satu Perintah bahawa saham yang dimiliki oleh Defendan
sebanyak 300,000 unit bernilai RM300,000.00 (60% daripada
keseluruhan saham Dimensi Hasil Sdn Bhd) dipulangkan semula
kepada Plaintif serta merta;
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d)
Satu Perintah bahawa pihak berkuasa Suruhanjaya Syarikat
Malaysia yang berkaitan harus melakukan segala apa yang
perlu untuk memberi kesan dan menguatkuasakan dengan
mendaftarkan Perintah ini;
e)
Kos permohonan ini ditanggung oleh Defendan-Defendan atas
kadar indeminiti penuh; dan
f)
Relif lain sedemikian yang Mahkamah yang Mulia ini anggap wajar
dan adil.”.
The Affidavits filed and considered are as follows:a)
Affidavit in Support Hamizat Bin Yahya affirmed on
17.4.2013.
b)
Affidavit in Reply of Jawapan Mohd Norfaizal Bin Nordin
affirmed on 5.7.2013.
c)
Affidavit in Reply of Ashari Bin Md Sarip affirmed on
5.7.2013.
d)
Affidavit in Reply of Anisah Binti Salamon @ Haji
Salamun affirmed on 5.7.2013.
e)
Affidavit in Reply by Norliza Binti Omar affirmed on
8.7.2013.
Preliminary Issues
During Case Management This Court gave directions to the Counsels
on 24.6.2013 as follows:
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(i)
The Defendant to file Affidavit in Reply by the 8.7.2013;
(ii)
Plaintiff to file Response by the 15.7.2013;
(iii)
Written Submissions to be filed by both parties by
25.7.2013; and
(iv)
Hearing fixed on 30.7.2013.
However on the date of hearing 30.7.2013 the Plaintiff applied to the
Court to put in an additional Written Submission to respond to the
Defendant’s Written Submission. This Court then gave directions that
the additional Written Submission be filed by the 19.7.2013 and a
new date for decision was fixed, 27.9.2013.
Despite the specific directions given by this Court the Plaintiff filed
a further there (3) Affidavits all of which were filed out of time on
22.7.2013 and without leave of the Court. The Defendant filed
one Affidavit on 26.7.2013 which was also similarly out of time
and without leave of the Court. The aforesaid Affidavits were not
considered by this Court.
Brief Facts
The Plaintiff purchased one unit of share for a sum of RM1.00 in
Dimensi from one, Norfaezah binti Nordin and 299,999.00 units of
shares from one Azlina binti Hussin (‘Azlina’). It is the Plaintiff
contention that he had fully paid for the shares from Azlina. The
Plaintiff subsequently sold his shares to the Defendant for a sum of
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RM300,000 and according to the Plaintiff the Defendant has not paid
for the shares.
The Plaintiff‘s submission
It is the contention of the Plaintiff that there is a clear admission by
the Defendant that the transfer of shares from Azlina to the Plaintiff is
valid based on the following reasons:(i)
The Defendant’s suit against Mohd Khairul Anuar bin
Maksom vide suit no 22NCVC-31-03/2013.
(ii)
The Agreed facts filed in that suit.
It is further contended that the Plaintiff is not the nominee of
the Defendant as averred in an Affidavit filed by one Anisah binti
Salamon vide suit no. 24NCC-307-09/2012. It is further submitted the
Defendant has not paid for the said shares.
The learned Counsel for the Plaintiff however did not submit at the
application of section 162 of the Companies Act 1965(CA). No legal
basis was to declare the Form 32A is invalid and to restrain the
Defendant from disposing the shares.
Decision
The Plaintiff seek to restrain the Defendant from disposing the shares
until the decision is made in the case filed in the Muar High Court No.
22NCVC-31-03/2013 (“the Muar Suit”). The Affidavit filed by the
Plaintiff did give any reason that except that the Defendant has not
paid for the alleged transfer of shares.
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No other evidence were exhibited as proof of such transaction or the
terms of the transfer. In his Written Submission the learned Counsel
for the Plaintiff did not give any legal basis for this relief. The Affidavit
in Support of the Plaintiff contains bare assertions without any
documentary evidence.
The Plaintiff also prayed for a declaration that the Form 32A dated
9.11.2010 is invalid. In the Plaintiff’s affidavit he admitted having
signed the Form 32A. In the present case, the Court will determine
whether the facts are complex and disputed; or clear and free from
difficulty or material doubt. The Court will also consider whether there
is doubt as to the bona fide of the transaction or whether the case
involves complicated question of law and fact. If the answer is in the
affirmative, then, the application herein must fail and be dismissed.
The Plaintiff did not adduce any evidence in order for this Court to
declare the Form 32A as invalid. The Plaintiff failed to exhibit a copy
of the Register of Members of Dimensi. Dimensi is also not made a
party to this action. The SSM search as exhibited in the Defendant’s
Affidavit affirmed by Norliza Omar dated 8.7.2013 the company
secretary of Dimensi, the shareholders of the company are as
follows,
i)
Siti Aisiah binti Ramely;
ii)
Mohd Khairul Anuar bin Maksom;
ii)
Wong Li Peng; and
iv)
Azlina Hussin (deceased).
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In her Affidavit she also states as follows,
“ Pada
09.11.2010
saya
telah
diberitahu
bahawa
Plaintif
ingin
memindahkan milik saham dia dan meletak jawatan sebagai Pengarah
Syarikat Dimensi Hasil Sdn Bhd. Saya telah menyediakan semua
dokumen untuk urusan ini dan saya sertakan surat Plaintif bertarikh
09.11.2010 untuk meletak jawatan sebagai Pengarah Syarikat, resolusi
syarikat 09.11.2010, Borang 49 bertarikh 09.11.2010 dan borang
pindahmilik saham bertarikh 09.11.2010 yang semuanya ditandakan
sebagai eksibit “C”.
Dengan itu Plaintif bukan lagi seorang pemegang saham atau pengarah
syarikat Dimensi Hasil Sdn. Bhd.”.
Section 162(1) CA provides,
“ (a)
the name of any person is without sufficient cause entered in or
omitted from the register; or
(b)
default is made or unnecessary delay take place in entering in
the register the fact of any person having ceased to be a member,
the person aggrieved or any member or the company may apply to
the Court for rectification of the register and the Court may refuse
the application or may order for rectification of
the register and
payment by the company of any damages sustained by any party
to the application.”.
Raja Azlan Shah J (as he then was) in Re Len Chee Omnibus Co.
Ltd. Chin Sow Lan v. Lee Che Omnibus Co. Ltd. & Ors [1969] 2
MLJ 202 stated that the Court has a discretion to give a summary
remedy under section 162 CA but would not normally entertain such
an application if the facts are complex and disputed. In this case
the Court dismissed an application to rectify under the said section
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as the application was not made within a reasonable time after the
Applicant became aware of the facts entitling her to the relief.
In Sabah Penang Development Sdn. Bhd. v. Yeng Hing
Enterprise Sdn. Bhd. [1996] 1 BLJ 512; [1996] 4 MLJ 589 the
Court in dismissing the Applicant’s motion under section 162 CA said
that the jurisdiction of the Court to grant the summary remedy to
rectify the register of members of a company under section 162 the
Act is general but the exercise of it is discretionary. The discretion
will only be exercised in favour of the Applicant where the case is
clear and free from difficulty or material doubt. Where the case is
complicated and there is doubt as to the bona fide of the transaction,
or where the case involves complicated questions of law and fact, the
Court will refuse to order rectification on a motion but will leave the
Applicant to seek rectification by way of an action.
The Court of Appeal in Pioneer Motor Service Co. v. Chin Cheng
Hong Sdn. Bhd. [2003] 3 CLJ 214; [2003] 3 MLJ 513 said that it is
clear from section 162(1) CA that the power to order rectification is
discretionary, because even if a situation giving cause for rectification
exists, the Court may refuse the application. In Lim Cheong Kern v.
Vacpak Realty Sdn. Bhd. [1999] 1 LNS 145; [1999] 5 MLJ 296 the
Court said that the power to rectify the register under the section is
a summary remedy. Where Courts are faced with serious dispute of
title, allegations of fraud or some further investigation pertaining the
facts may be required, the proper course will be to commence a suit
against the company. Since the matter at hand could not satisfactorily
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be explained by the available affidavits, and by reason of the complex
facts, and the prevalence of a substantial number of intricate legal
points yet to be resolved, the application was dismissed.
The Federal Court in Central Securities (Holdings) Bhd. v. Haron
bin Mohamed Zaid [1979] 1 LNS 9; [1979] 2 MLJ 244 said that:“ The power to rectify the register under the section is a summary remedy.
The Court on an application under the section may decide any question
of title of any party to have his name entered or omitted from the
register , whether such question arises between members and alleged
members or between such persons and the company. It may also decide
any incidental questions arising with the above; if expedient or
necessary. Sometimes the summary procedure under the section is not
an appropriate remedy. Thus where complicated questions of law and
fact arise it is, we think, only proper to refer the parties to a suit, because
rectification can also be had any a suit: see In re Len Chee Omnibus Co.
Ltd. [1969] 1 LNS 59; [1969] 2 MLJ 202. In Reese River Silver Mining
Co. v. Smith [1869] LR 4 HL 64, the application for rectification of the
register on the ground of fraud and misrepresentations was by way of
a suit against the company. And delay in applying for rectification will
destroy the remedy. See: In re Len Chee Omnibus Co. Ltd. (supra),
where it was held that two (2) years delay was fatal, Ansett v. Butler Air
Transport Ltd. [158] 75 WN 229, where a suit for rectification of the
share register was delayed in almost a year, it was held that the
Plaintiffs were not entitled to relief.”.
Therefore guided by the principles enunciated by the cases
mentioned above in an action for rectification of the Register of
Shares the proper party would be the company, in this case, Dimensi.
However, Dimensi is not named by the Plaintiff as a party in this suit.
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Furthermore the matter at hand could not satisfactorily be explained
by the available affidavits and since the Plaintiff has filed a suit in
the Muar High Court for the determination of the transfer of shares it
would only be prudent to await the outcome of that suit.
With regards to the action filed in the Muar suit the Defendant is
seeking a declaration that the transfer of shares from Azlina to the
Plaintiff on 20.2.2010 is valid and that the transfer of the shares to
the Defendant from the Plaintiff on 9.11.200 is also valid. The Muar
Suit is however pending in the Muar High Court. The Muar Suit and
this OS before this Court are premised on similar facts, issues and
causes of action to seek ultimate similar relief. The filing of these
actions by Plaintiff has resulted in wasted costs and time.
The Supreme Court in the case of Lesco Development Corp. Sdn.
Bhd. v. Malaysia Building Society Bhd. [1987] CLJ 160 (Rep);
[1987] 2 CLJ 290; [1998] 2 MLJ 184 decided that:
“ It is undesirable to allow a situation where two (2) different Courts would
try and determine the same issues arising between the same parties
relating to the same subject matter.”.
In his Affidavit the Plaintiff averred that he sold and transfer the
shares to the Defendant. However, the Plaintiff failed to exhibit any
documentary proof of the sale of the shares transaction and the
payments which he alleged was paid by installments. The Defendant
explained through the Affidavits that he was introduced to the Plaintiff
and that the Plaintiff had agreed to be a nominee. This was confirmed
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by the Company Secretary as well as the widower of Azlina, Ashari
Md Sarip in their respective Affidavits. No extrinsic evidence was
adduced by the Plaintiff that there was a valid transfer of shares.
Based on the above considerations the Court finds that there is no
merit in the Plaintiff’s case. Therefore the Plaintiff’s OS is dismissed
with cost.
sgd.
( HASNAH BINTI DATO’ MOHAMMED HASHIM )
Judge
High Court of Malaya
Kuala Lumpur.
11th December 2013
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Counsels:
For the Plaintiff/Appellant:
Messrs. Mann & Associates
-
Pramjit Kaur
For the Defendant/Respondent:
Messrs. Devan & Associates
-
N. Devan