The burden of proof rests with the Appellant to establish the execution of a document, which was not met due to its improper admission as evidence.

[1] This is an appeal by the Appellant who was the Plaintiff at the Sessions Court against the decision of the Sessions Court delivered on 24 May 2024 dismissing the Appellant's claim against the Respondent with costs.

[2] The principal issues in this appeal concern:

(i) The admissibility of the Guarantee and Indemnity (ID4) as evidence;

(ii) Whether the Respondent had knowledge of the Tenancy Agreement;

(iii) Whether the Respondent in fact executed ID4;

Factual Matrix

[3] From the Appeal Records, the material facts are as follows:

(a) The Plaintiff entered into the Tenancy Agreement dated 26 June 2020 with Hygenia R&D Sdn Bhd (First Defendant at the Sessions Court) for premises at No 9 Jalan Perusahaan 3, Taman Industri Selesa Jaya 2, 43300 Balakong, Selangor.

(b) The First Defendant defaulted on rental payments that amounted to RM112,929.55.

(c) The Plaintiff sought to hold the Respondent liable as guarantor based on ID4 - a purported Letter of Guarantee and Indemnity dated 26 June 2020.

(d) The Respondent denied executing ID4, claiming his signature was forged.

(e) The Guarantee and Indemnity remained marked as ID4 throughout trial and was never converted to an exhibit.

The Evidence

[4] For the Appellant, the critical evidence before the Sessions Court was that PW4 (the solicitor) testified he "would have" witnessed the Respondent's signature on ID4 at his office but could not definitively confirm this. PW5 (the estate agent) confirmed emails about ID4 were never addressed to or brought to the Respondent's attention. PW1 confirmed the Tenancy Agreement was between the Plaintiff and the First Defendant only.

[5] The Respondent's Evidence is that he first saw ID4 when his solicitors requested copies on 22 September 2021. He then promptly lodged a police report on 8 October 2021 alleging forgery of his signature. There was a comparison of his signatures, whereby the Respondent attempted to invoke under s 47 of the Evidence Act 1950 by (i) adducing his signature comparisons marked as Lampiran A and Lampiran B (pp 111-116 of Appeal Record encl 6), and (ii) using his witness statement signature dated 14 December 2023 (p 46 Appeal Record Enclosure 10). The Respondent had also consistently denied having executed ID4 during his cross-examination. The Respondent did not have any nexus with the First Defendant. He was neither its director nor shareholder.

[6] The documentary evidence not to be cast aside were also a Memorandum of Understanding and Joint Venture Agreement of dealings which were between Hygenia Sdn Bhd (not First Defendant) and other parties. Most significantly, the Guarantee and Indemnity remained as ID4 throughout trial.

This Court's Analysis And Findings

[7] The central issue is whether the Sessions Court erred in dismissing the Appellant's claim. An examination was undertaken by this Court of three key aspects.

1. Admissibility of ID4

[8] The Appellant contended that the Sessions Court erred in failing to admit ID4 as an exhibit. The document was crucial to the Appellant's claim as it purportedly imposed liability on the Respondent. The Evidence Act 1950 , particularly s 73A, provides that a document is admissible if:

(a) The maker of the document had personal knowledge;

(b) The maker was called as a witness;

(c) The document was produced in its original form.

[9] The importance of proper admission of documents is highlighted in PP v. Datuk Haji Harun Haji Idris & Ors ; , where documents marked for identification "cannot form part of the record" and related testimony should be disregarded. Similarly, in Azabar Holdings Sdn Bhd (In Liquidation) v. Kumarappan @ Thannirmalai Km Palaniappan & Anor ; [2021