JUDGMENT

Hamid Sultan Abu Backer JCA:

[1] The appellant/plaintiff appealed against the decision of the learned High Court Judge who dismissed the appellant's claim against the 5th defendant/ respondent who on record was a Director as well as a signatory to the Joint and Several Guarantee and Indemnity Agreement (Guarantee) executed by the respondent.

[2] The main line of defence of the respondent was that (i) he was not a Director of the company and in consequence, all documents related to his directorship were forged; (ii) he did not sign the Guarantee.

[3] In a 17-page judgment, the learned trial judge had set out the relevant facts and reasons for his decision. On the face of record, it was a speaking judgment but upon hearing the submission of the appellant, we took the view that the learned trial judge had erred in law as well as fact in coming to the conclusion to deny the judgment to the plaintiff. In the instant case, the learned trial judge failed to take into consideration the following, namely:

(a) the respondent did not respond to the appellant's notice of demand related to a claim of RM3,638,518.87;

(b) the respondent did not make a police report when his case is that the appellant's documents were forged;

(c) the respondent failed to challenge the appellant's solicitor who witnessed the Guarantee;

(d) there was no appreciation of the rule in Browne v. Dunn [1893] 6 R 67;

(e) the expert witness who gave evidence for the respondent did not deal with the Guarantee at all and the signatures he was referring to were in relation to share transfer forms and not the Guarantee;

(f) confusion of matters relating to Form 49 and signatures therein;

(g) the letter by the respondent dated 14 September 2011 signed by the respondent as the Director of the 1st defendant, and attaching 12 cheques as instalments for payment of debt for the facilities granted to the 1st defendant, was an admission of liability as well as destroyed the respondent's defence as well as it affirmed that the respondent was not a witness of truth. The said letter dated 14 September 2011 reads as follows:

[4] We heard the appeal on 21 June 2016 and allowed the appeal with costs of RM30,000.00. My learned sister Umi Kalthum Abdul Majid JCA and brother Varghese George Varughese JCA have read the judgment and approved the same.

Brief Facts

[5] The learned trial judge had meticulously set out the facts and the reasons. To save courts time, we do not wish to repeat save to say that this judgment must be read together with the judgment of the learned trial judge. [2015] MLRHU 1117.

[6] The facts relate to facility agreement and the principal debtor was Champion Growth Sdn Bhd (the 1st defendant) and the 2nd to the 5th defendants were guarantors. Judgment had been entered in respect of the 1st to 4th defendants. The appeal was in respect of the respondent who was the 5th defendant.

[7] The issues to be tried before the High Court, inter alia, were:

(a) Whether the 5th defendant had executed the Guarantee?;

(b) Whether the 5th defendant is liable to the plaintiff as guarantor?

The respondent's defence had been summarised by the learned trial judge as follows:

"5th Defendant's Defence

(1) That he did not have any knowledge of the transaction as his signature was forged in a document, ie Form 49 of the Companies Act, that made the 5th defendant, a Director of the 1st defendant.

(2) The 5th defendant had given a statement that he was not any time a Director or Shareholder of the 1st defendant and his signature was forged to benefit the 1st defendant. The 5th defendant also maintains that he had never signed any Guarantee documentation with the plaintiff.

(3) The 5th defendant believes that his signature was forged by one person named Tan Peng Hin ('Frank') [K/P No: 600128-04-5347], the 1st defendant company's Chief Executive Officer's ('CEO'). Further, that the said Frank had in his possession the 5th defendant's identification card ('NRIC').

(4) The 5th