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2011 MarsdenLR 3478
HIGH COURT MALAYA, ALOR SETAR
LAI BAN GUAN – Appellant
Versus
CHAN PHAIK BOI & ORS – Respondent
[Guaman Sibil No: 22-65-2007]
The court affirmed that forgery of signatures renders corporate documents invalid, and claims of conspiracy require clear evidence of agreement among parties to harm another.
Headnote:(A) Companies Act and Evidence Act 1950 - Trustworthiness of signatures - Forgery allegations - Court resolved that the plaintiff proved his signature was forged on documents leading to his removal as director with no valid resignation. The court reiterated principles surrounding corporate governance and company secretary duties. (Paras 6, 12, 20, 26)
(B) Conspiracy - Requirements for conspiracy claim proof - Court found no agreement between plaintiffs and defendants to conspire as forgeries could have been the act of an individual. (Paras 13, 26)
Facts of the case:
The plaintiff claimed that his signature was forged on three documents resulting in his removal as director of a company. The defendant argued otherwise, leading to a dispute over the validity of these resignations and conspiracy. (Paras 1-3)
Findings of Court:
The court ruled that the signatures had been forged, rendering the documents invalid. The conspiracy claim against certain defendants was dismissed due to lack of evidence of collusion. (Paras 26, 27)
Issues: The primary issues included the determination of the authenticity of signatures and whether there existed any conspiracy among the defendants to forge the documents. (Paras 6, 13)
Ratio Decidendi: The court held that the plaintiff successfully established the forgery of his signature through expert evidence; additionally, the absence of agreement among defendants negated the conspiracy claim. (Paras 12, 13, 26)
Result: Plaintiff's claims were partially allowed; claims for conspiracy were dismissed, with costs awarded to the appropriate parties.
| Table of Content |
|---|
| 1. company director's share forgery claim. (Para 1 , 1 , 2) |
| 2. pleadings and date of signatures. (Para 3 , 4 , 5) |
| 3. standard of proof in forgery cases. (Para 6 , 10) |
| 4. conspiracy elements and requirements. (Para 13 , 14) |
| 5. negligence and role of company secretaries. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22) |
1. Plaintiff says at all material time he was a director of second defendant company (D2) and held 33,333 shares. The other director is his father the third defendant (D3) who held 66,667 shares. D2 has a share capital of RM100,000.00 divided into 100,000 ordinary shares of RM1.00 each. Plaintiff claims his signature was forged on 3 documents which led to his removal as director and loss of his shares in D2 with first defendant (D1) becoming the director and holding 33,332 shares and seventh defendant (D7) 1 share. Plaintiff seeks a declaration the purported resignation and transfer of shares to D1 are null and void and of no effect. He also seeks damages against D1 and D3 for conspiracy and against fourth defendant (D4), fifth defendant (D5) and sixth defendant (D6) for conspiracy or negligence. D4, D5 and D6 were the company secretaries at the relevant material time.
Resignation and transfer of shares
2. The documents on resignation and transfer of shares which plaintiff claims his signature was forged are:-
(a) director's circular resolution dated 26-9-2006 appointing D1 as director of D2 (P12 (1)) where the resolution was signed by plaintiff and D3;
(b) letter of resignation dated 26-9-2006 (P12 (2)) where plaintiff purports to tender his resignation with immediate effect; and
(c) 2 transfer forms (Form 32A) (P12 (4) and (5) for the transfer of 33,332 shares and 1 share;
collectively to be referred to as the 3 documents.
3. It is plaintiff contention that D1-3 having denied the allegation of forgery in the amended defence and pleading in paragraph 10 with reference to a police report lodged by D3 the documents were signed on 26-9-2006 cannot now be allowed to depart from their pleadings. The aforesaid police report dated 7-11-2006 which is D5 specifically refers to plaintiff signing the documents on 26-9-2006 at 2.15pm at D2's office. The evidence of both D1 and D3 in court are that plaintiff signed the 3 documents in their presence in D2's office on 19-9-2006. It is further D3's evidence he subsequently lodged another police report dated 24-10-2010 (D56) referring to his earlier police report of 7-11-2006 he was mistaken (tersilap ) on the date of 26-9-2006 and it should be 19-9-2006. The mistake arose because he was old and ill arising from a stroke he suffered in 2006. In cross examination D3 said D56 was lodged on his lawyer's advice and he could remember 19-9-2006 was the correct date.
4. It is trite law parties are bound by their pleadings. Having in their defence asserted plaintiff had signed the 3 documents on 26-9-2006 D1-D3 cannot now contend otherwise and say the 3 documents were signed on 19-9-2006. Refer to the court of Appeal case of AmBank (M) Bhd v. Abdul Aziz bin Hassan & Ors, [2010] 7 CLJ 663 ; [2010] 3 MLJ 784 where it was said at page 792 that "pleadings operate to define and delimit with clarity and precision the real matters in controversy between the parties so that their respective cases can be prepared with ease and the court too can expeditiously adjudicate them. No litigant should be taken by surprise or be led astray due to faulty pleadings.". Refer also to Cheong Heng Loong Goldsmiths (KL) Sdn Bhd v. Capital Insurance; [2004] 1 MLJ 353 ; [2004] 1 CLJ 357 ; [2004] 1 AMR 333 where it was stated at page 369 "he must stand or fall on his pleaded case. He cannot simultaneously put forward an unpleaded case".
5. As D1-D3 had pleaded in their defence the 3 documents were signed on 26-9-2006 they cannot now say otherwise. As the 3 documents were allegedly signed on 26-9-2006, plaintiff had proved he could not possibly have done so when his evidence and that of his employer (PW3) shows he was
