JUDGMENT

Ahmad Kamal Md Shahid J:

Introduction

[1] The appellant filed an application by way of Originating Summons (OS) (Encl. 1) dated 2 May 2023 under O 55A of the Rules of 2012 (ROC) appealing to this Court against the award by Co-operative Tribunal Malaysia, the 1st Respondent given on 28 March 2023 (the Award).

[2] After the hearing, I partially allowed the appellant's OS and made the following order:

2.1. Encl. 1 is allowed in part, where Paragraphs (i) to (iv) of the Award Tribunal Koperasi No Rujukan T-271-2022 awarded in Kuala Lumpur dated 28 March 2023 by the 1st Respondent (Appendix A) is upheld, whereas Paragraphs (v) to (vii) of the Award are set aside.

2.2 All the damages awarded by the 1st Respondent amounting to RM138,000.00 to the 2nd Respondent, which has been paid by the appellant to the 2nd Respondent's Solicitor as a "Stakeholder", shall be returned to the appellant within 14 days from the date of this Order; and

2.3 The 2nd Respondent shall pay costs amounting to RM3,000.00 to the appellant, subject to the allocator fees.

Background Facts

[3] The appellant is a Co-operative registered under the Co-operative Societies Act 1993. The 2nd Respondent was a Member and officer of the appellant, where he was appointed as the Treasurer from 30 June 2018 to 17 December 2021.

[4] On 8 December 2020, the Malaysian Anti-Corruption Agency (MACC) served the "Perintah Untuk Mengemukakan Dokumen" (Order) directly on the appellant regarding an investigation on the 2nd respondent under s 30(1)(b) of the Malaysian Anti-Corruption Commission Act 2009 (MACC Act 2009).

[5] The appellant then called the 2nd Respondent for an inquiry at its office on the Order and the MACC investigation. The 2nd Respondent orally agreed to obtain and forward to the appellant a letter from the MACC addressed directly to the appellant, clearing the 2nd Respondent from the MACC investigations (clearance letter).

[6] The appellant, in a letter dated 11 December 2020 to the MACC forwarded the documents requested by the MACC to assist the 2nd Respondent in obtaining the clearance letter.

[7] On 16 March 2021, the appellant submitted a letter together with the Investigation Report and the appellant's Management Recommendation to MACC by the order of the MACC to submit documents dated 22 February 2021. The 2nd Respondent believes that this action by the appellant was done with the intention to clear the appellant's name after finding out that the tender offer and the 2nd Respondent's travel claim are in order and based on the current prevailing trends.

[8] The appellant did not receive the clearance letter from the MACC for more than one (1) year.

[9] On 2 December 2021, the 2nd Respondent submitted the nomination form under "Borang Pencalonan Anggota Lembaga - Kategori Perwakilan Anggota Individu".

[10] On 15 December 2021, the appellant received an unsigned letter inter alia urging the Board of the appellant to take action to suspend the 2nd Respondent until the result of the investigation by the MACC was made known to the Board of the appellant.

[11] The majority of the board of directors (board members) of the appellant were satisfied that by the service of the Order directly on the appellant and the failure to obtain the clearance letter, the 2nd Respondent had acted in a manner which was detrimental and prejudicial to the interest of the appellant thereby invoking art 40(2)(b) in the bye-laws of the appellant.

[12] On 16 December 2021, the 2nd Respondent was given two (2) options, that is, either to withdraw from contesting in the election during the 58th Annual General Meeting (58th AGM) scheduled for 18 December 2021 or be suspended pursuant to the said Article in the bye-law. The 2nd Respondent agreed to submit the letter withdrawing from contesting.

[13] On 17 December 2021, however, the 2nd Respondent failed to forward the letter, withdrawing from contesting and further informing the board that members could take any action deemed fit.

[14] A special Board Me