Ramly Ali J:

[1] These grounds of judgment are in respect of the plaintiff's claim against the 2nd defendant (vide encl. 1).

[2] The plaintiff had filed this suit on 1 June 2007 stating:

(a) that the plaintiff was at all material times a non-executive director of the 1st defendant;

(b) that the 2nd defendant is a de facto director of the 1st defendant;

(c) that the 1st and 2nd defendant had vide letter dated 28 August 2006 misrepresented to the plaintiff that the actual balance owing for the Employee Provident Fund ("EPF") as at the date of the said letter was RM160;

(d) that the 1st and 2nd defendant had not taken the appropriate steps/measures to pay the EPF contributions for the employees of the 1st defendant; and

(e) as a result of the said misrepresentation the plaintiff's good name and reputation had been tarnished.

The plaintiff now comes before this court seeking declarations, amongst others and in particular, against the 1st and 2nd defendant for damages as a result for the misrepresentation and for failure to pay EPF contributions for the employees of the 1st defendant.

[3] The basis of the plaintiff's claim herein is that, at all material times he was just a non-executive director of the 1st defendant and as such he was not responsible to pay EPF contributions for the employees of the 1st defendant.

Is The Plaintiff A Director Or Non-executive Director Of The 1st Defendant

[4] Based on the whole evidence, the court is satisfied that the plaintiff was in fact an in law a director of the 1st defendant in accordance with the definition of the word "director" in s. 4 as well as s. 122 of the Companies Act 1965 (CA).

[5] Under s. 4, "director" includes any person occupying the position of director of a corporation by whatever name called and includes a person in accordance with whose directions or instructions the directors of a corporation are accustomed to act and an alternate or substitute director.

[6]Section 122(1), provides inter alia that every company shall have at least two directors who each has his principal or only place of residence within Malaysia. A director of company shall be a natural person of full age.

[7] In coming to the above conclusion, that the plaintiff was at all material times a director (not a non-executive director) of the 1st defendant, the court refers to the followings:

(a) Resolution dated 11 April 2003 appointing the plaintiff as a director and not as a non-executive director;

(b) From 49 (in accordance with the CA, 1965 being register of directors) dated 4 April 2003;

(c) Clause 75 of 1st defendant's Memorandum and Articles of Association;

(d) Letters dated 21 February 2003 & 14 March 2003 by the plaintiff firm of solicitors whom the plaintiff is a partner seeking to convene an Extraordinary General Meeting for the appointment of directors;

(e) Notice to convene an Extraordinary General Meeting dated 20 March 2003 to appoint the plaintiff as a director and not as non-executive director; and

(f) There is no contract or form of document that the plaintiff is a non-executive director.

[8] From the above mentioned documentary evidence it is axiomatic that the plaintiff had voluntarily offered himself to be a director of the 1st defendant and had even procured steps to push/expedite for an Extraordinary General Meeting so as to enable the plaintiff to be appointed to the board of directors. There is not a shred of evidence adduced by the plaintiff to show that the plaintiff was appointed as a non-executive director in the 1st defendant company to protect the interest of the 2nd defendant.

[9] This court should take judicial notice that the plaintiff had even filed a civil suit against the 2nd defendant for non-payment of Director's Fees and other expenses in his capacity as a director of the 1st defendant company vide Kuala Lumpur High Court Suit No. S7-22-913-2007. Hence if the plaintiff is to be remunerated in his capacity as a director, then it is only fair and reasonable for hi