Plaintiff must prove claims on a balance of probabilities, and failure to provide credible evidence substantiating allegations can lead to dismissal of claims.

[1] These suits arise out of two term loans ('D1 and D2') granted by the plaintiff ('P') bank to the defendants. They are for non-payment of instalments by D1 and D2 allegedly in breach of the loan agreements entered into between the parties.

Summary Of Facts

[2] Upon the request of D1 and D2, P vide letters of offer ('L/O') dated 3 October 1997 and 3 December 1997 offered D1 and D2 two term loans (T/L (1) and (2)) each amounting to RM300,000 at the prescribed rate of interest. In respect of T/L (1) D2 executed a charge over land in favour of P while T/L (2) was secured by a similar charge executed by D1. Upon the alleged failure of D1 and D2 to settle overdue instalments under the two T/L, two separate notices of demand ('NOD') and withdrawal of loan facility were issued by P's solicitors to them. These writs dated 12 July 2007 and 1 August 2007 were issued against them when they failed to comply with the notices.

Preliminary Objection By P's Counsel (P/C)

[3] The objection raised was against PW1's competency to testify on behalf of D1 and D2 by virtue of a Power of Attorney ('P/A') issued to him by D1 and D2 and duly registered at the Muar High Court (exh. D36). Admissibility of D36 was objected to on the ground that it was registered only in year 2009 whereas this suit commenced in year 2007 and as such, DW1's evidence had to be wholly rejected. He was said to not have had personal knowledge of facts occurring before year 2009. No provision of law or authority was shown to the effect that a witness who appears under a valid P/A issued by a party to the suit is not competent to testify unless it was registered prior to commencement of the suit. As to the question of personal knowledge of facts at the material time, this was a question of fact to be determined from the evidence given by DW1 and not to be peremptorily decided before hearing it. Counsel referred to s 32 of the Evidence Act 1950 and the leading case of Subramaniam v. PP , which decided that evidence of statements made to a witness by a person who himself is not produced as a witness may or may not be hearsay depending on the object of the evidence. In the instant case, DW1's evidence as a whole did not appear to consist of statements made by D1 and D2 but of facts from his personal knowledge. Counsel also cited the case of Ch'ng Ping Teong v. M & A Securities Sdn Bhd; [2007] 6 MLJ 29 ; [2007] 5 CLJ 465 regarding the stringent conditions for s 32 to be invoked to admit statements by persons who are dead, cannot be found, etc.

[4] I held P/C's argument that DW1 could testify only by recourse to s 32 to be flawed as this section had no application in this instance because DW1's evidence was not based on statements given by the defendants. Hence, the question of compliance with the conditions in s 32 did not arise. Similarly, for the same reason, the hearsay rule had no application for DW1's evidence to be rejected. The sufficiency and credibility of and weight to be attached to his evidence were different matters to be considered at the trial. The evidence could not be rejected even before it is given on the ground that he was neither a defendant nor a party to the loan transaction and was testifying in the capacity of an attorney.

[5] Common Issues To Be Tried (495 And 565/2007)

(a) Whether the