Hasan Lah JCA

(delivering judgment of the court)

INTRODUCTION

[1]The parties are referred to in their respective capacities in the High Court.

[2]By summons in chambers (encl 30), the plaintiff applied under O 20 r 5 of the Rules of the High Court 1980and/or the inherent jurisdiction of the court for leave to:

(a)substitute the then third defendant with the names of its partners; and

(b)amend the writ of summons and the statement of claim.

[3]The learned senior assistant registrar granted leave to the plaintiff to substitute the then third defendant with the names of its partners and to amend his statement of claim. The first defendant and the second to the 19th defendants filed separate appeals to the judge in chambers against the decision of the learned senior assistant registrar in allowing the amendments to the plaintiff's statement of claim. The learned judge allowed both the appeals with costs on 18 June 2007. The decision to substitute the names of the partners was not challenged before the High Court judge.

[4]The plaintiff filed appeals to this court against the decisions of the learned High Court judge. Case No W-02–677 of 2007 involved the first defendant and Case No W-02–708 of 2007 involved the second to the 19th defendants.

[5]We heard both the appeals on 14 January 2009 and on 15 January 2009, we unanimously allowed both the appeals with costs. We now give the grounds of our decision.

FACTUAL BACKGROUND

[6]On 29 May 2002, an annual general meeting of APM Automotive Holdings Bhd was held. The meeting was chaired by the plaintiff. One of the resolutions scheduled to be raised at the meeting was the resolution to reappoint the first defendant as a director of APM Automotive Holdings Bhd pursuant to Companies Act 1965('the resolution'). At the meeting, the resolution was put to a vote by a show of hands. The resolution read as follows:

Resolved that pursuant to section 129(6) of the Companies Act 1965, Dato' Tan Kim Hor be and is hereby re-appointed as a director of the company and to hold office until the next AGM.

[7]On the show of hands, there were 64 shareholders voting in person or by proxy who were in favour of the resolution and six shareholders/proxies who were against the resolution. The plaintiff, as the chairman of the meeting, declared that on the show of hands, the resolution was carried. MrLow Kok Meng, a proxy demanded for a poll. The second defendant and MrMichael Lim, a proxy, both objected to the poll on the grounds that the poll was demanded after the declaration by the chairman and that the resolution had been carried on the basis of the wordings of article 61 of the articles of association of the company. They said the declaration by the chairman was conclusive in view of article 61.

[8]The plaintiff ruled that a poll be taken. Later that afternoon, the plaintiff announced that 61% of the votes had been cast not in favour of the resolution. Accordingly, the first defendant was not reelected as a director.

[9]Immediately after the announcement of the results of the poll taken at the AGM on 29 May 2002, the following words were spoken by the second defendant on behalf of the first defendant to the press (these spoken words can be seen at para 11 of the statement of agreed facts in encl 21) and they were said to be defamatory of the plaintiff):

We believe the poll result of APM was a contestable process.

The surviving co-founder of Tan Chong has a good case to remain on the Board of APM.

My client and I are examining all our available options and will be coming up with a decision pretty soon.

Overall, the meetings have been carried out in a proper manner except for the APM resolution.

[10]On 11 October 2002, the plaintiff filed this action against the three defendants ie the first and second defendants and Lee Hishammuddin (sued as a firm) as the third defendant.

[11]For the purpose of the trial, the parties prepared the 'agreed issues to be tried' dated 1 October 2003 as seen in encl 22. There were couched in these w