murmurs:
respondent stonewalled
The legal fraternity awai...: respondent stonewalled The legal fraternity awaits eagerly the written judgment of the Court of Appeal which overturned the High Co...
Wednesday, January 16, 2013
respondent stonewalled
The legal fraternity awaits eagerly the written judgment of the Court of Appeal which overturned the High Court ruling that the National Land Finance Cooperative Society was liable in a land development project.
Eagerly, simply because from the outset it looked very much an open and shut case wherein the key defence witnesses listed in the witness list failed to testify or rebut corroborated evidence given by the claimant.
Surprisingly the Appeal Court dismissed the evidence given in court by the prime witness for the claimant, Westingmont Sdn Bhd saying the evidence was simply hearsay.
Legal experts think that the appeal court was wrong not only in dismissing the evidence as hearsay but also in interfering with the findings of the trial judge.
The appeal court is not a forum to settle dispute. That was already done by the lower court. Its prime function is to determine if the trial judge exercised his powers with his jurisdiction, and or to deliberate points of law.
By dismissing a key witness’ evidence the appeal court has not only usurped the powers of the trial judge who was a better person to decide after spending considerable time weighing both sides of the argument.
In dismissing a piece of unchallenged evidence the appeal court has opened the floodgates.
This may give aggrieved parties consideration for further appeal to challenge this unprecedented ruling.
Had the appeal court judges probed further they could have understood why the trial judge admitted the claimant’s statement as evidence.
The trial judge Datuk Abdul Aziz went on to invoke Sec 114G of the Evidence Act to admit a crucial piece of evidence against the defendant, given by the claimant’s witness, which was not disputed at all
In short all the statements of Gopala Krishnan, the key witness for Westingmont against the key witness for NLFCS Tan Sri Somasudran, the executive chairman of NLFCS went unchallenged simply because the latter did not come to court to defence himself.
Though there were other witnesses not listed in the defence witness list came to the rescue of Somasundram but these witnesses’ evidence were not corroborated.
If the defence had a solid case they would have not hesitated to produce Somasundram. Not that he was away fighting a war or cannot be contacted. He was there at anyone’s disposal, in his cozy office in Tun Sambantan Building
Facing a daunting task the defence threw a red herring when they listed Somasundran as a witness in the witness list and deliberately or otherwise failed to produce him, thus denying the claimant a chance at putting him on the stand.
Some say the claimant could have tried a different approach by hauling Somasundran to court by way of subpoena.
But inorder to do this the defence counsel must notify the court and the plaintiff’s counsel that they would not be calling Somasundran who was listed in their witness list.
It is learnt from the plaintiff’s lawyers that the defence neither notified the court or the plaintiff’s counsel.
Now it should be asked if it was utterly necessary for the plaintiff to subpeona a defence key witness when the latter could turn hostile?
Thus it is common sense that an evidence under oath be accepted and its authenticity remains until proven otherwise, shifting the evidential burden from the plaintiff to the defendant.
It is surprising that during the submission the appeal court asked the respondent’s counsel why they did not call Somasundran. The court should have known better that the burden is on the appellant to call their witnesses who were listed in the witness list at the start the trial in the high court.
Besides, any evidence made in court must be taken seriously by the judges as the person giving the evidence is under oath and dismissing evidence without solid reasons can be taken as not honouring court proceeding.
The appeal court also contended that the respondent had not requested “enough” for a piece of document which was supposedly in the possession of the appellant.
There are two points to consider here. One is the word “enough” which is very subjective. So to tell one that he or she has not done enough one ought to define what “enough” in that context is.
The other is the appellant’s claim that the respondent did not request for the title to a piece of land which the respondent was supposed to develop.
That claim is ambiguous and steeped in half truth as the one making the claim must first have that piece of document in their possession.
By making such a claim they imply that the title was in their possession and that the respondent had not asked for it.
Now for argument sake say the respondent had asked for it. Were the appellant in a position to handover the document? This was a clever way of misleading the appeal court which probably did not go through thoroughly the notes of evidence.
Friday, July 13, 2012
crime rate disputed
Though the authorities claim that the crime rates in the country have gone down many are not convinced and.I too am not all that convinced.The authorities should go to the street and find out what people think instead of just relying on statistics.They should get down from their ivory towers and go drive around instead of being chauffeured around in bullet-proof cars.Yes it is true the statistics on criminals going around shooting people have dropped but not hoodlums and snatch thieves going around relieving memnbrs of the publiv with parangs
Friday, May 11, 2012
African Club patrons arrested
Some 20 immigration enforcement personnel landed in Taman Sri Merdeka tonight around 11pm to check on patrons to the African Club which has been the scorn of nearby residents for their unruly behavior after a few rounds of alcohol. One tried to escape but was caught and handcuffed and made to sit on the street while they attended to screening other blacks. The victim injured his leg after trying to flee the authorities. All in all they netted three Africans in the operation.
Sunday, April 01, 2012
why NLFCS lost court case
Case lost because key witnesses did not come to court
The National Land Finance Cooperative Society after losing a million ringgit breach of contract suit in the high court must now explain to its shareholders why the defence was poorly represented.
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| Tan Sri Somadundaram |
According to law experts who were following the case closely the Judge Datuk Abdul Aziz had no choice but to invoke Section 114g of the Law of Evidence Act 1950 as the defence failed to produce its three material witnesses.
Now why fight a case when NLFCS is not prepared to go all the way. Is this not poor fiduciary judgement? Are they not answerable to the shareholders? But then again what do these poor rubber tappers know! Least we forget, it is the raison d'etre for the existence of NLFCS.
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| Datuk Sahadevan |
Now it seems NLFCS have to pay the plaintiff, a project management company special damages, cost and general damages which may come to around RM8 million with the interest of 8 per cent the court had ordered from the day the defendant went into an agreement with the plaintiff in 1999.
From the onset of the case the defence listed NLFCS chairman Tan Sri R.K. Somasundaram, its CEO Datuk M.Sahadevan and its former executive K.Vadivelu as key witnesses in the case.
But they never produced any of them to rebut whatever adverse claims made by the plaintiff. Why?
Under such circumstances the judge had no choice but to draw an adverse inference against the defendant whose key witnesses who were parties to the transaction with the plaintiff, both oral and written, failed to testify.
After hearing the submissions from both sides, the court had no choice but to rule in favour of the plaintiff as the defence 's attempts to shift the burden of liability to the plaintiff added up to nothing as it first and foremost failed to produce its material witnesses in court to counter the claims by the plaintiff.
Neither did the defendant made available officers from the "appropriate authority" to counter the claims of the plaintiff that he was stalled into carrying out its part of the agreement to built houses on a plot of land belonging to the defendant as the defendant had not got all the relevant papers in order , including a separate land title.
The court decision:
Justice Datuk Abdul Aziz Abdul Rahim ruled the co-operative had failed to provide the original land title as agreed upon in the terms of agreement with Westingmont Holdings Sdn Bhd, resulting in the expiry of the agreement.
"The original title was never given to the plaintiff, resulting in the housing project unable to proceed further. Furthermore, the defendant had also not acted in good faith in providing the title," he said.
Abdul Aziz ordered NLFCS to pay special damages amounting to RM305,500 and legal costs amounting to RM70,000 to the plaintiff.
He also allowed the plaintiff's claim of eight percent interest from the date of judgement until the final date of settlement.
On general damages, Abdul Aziz said it would be assessed by a registrar and set April 2 for mention.
On counter claims filed by NLFCS, Abdul Aziz allowed only two claims, including RM150,000 for loan obtained by the plaintiff to clear nearly 100 squatters from the 5.28ha land in Kampung Tukang, about three kilometres from the Sungai Petani town.
The other claim involved RM4,500 paid by the co-operative to the project managing company in carrying out the feasibility study of the project.
However, Abdul Aziz did not allow other counter claims of the defendant amounting to RM300,000, mostly on legal fees in converting the agriculture land to housing project and ex-gratia payment to the squatters.
"Most of these expenses occurred before the commencement of this project and therefore, the defendant should pay for it," he added.
The plaintiff filed the action in court last August after NLFCS informed the company that the agreement signed in 1998 to develop the plot located next to a booming township had expired.
source:
http://thestar.com.my/news/story.asp?file=/2012/3/28/nation/20120328172414&sec=nation"The original title was never given to the plaintiff, resulting in the housing project unable to proceed further. Furthermore, the defendant had also not acted in good faith in providing the title," he said.
Abdul Aziz ordered NLFCS to pay special damages amounting to RM305,500 and legal costs amounting to RM70,000 to the plaintiff.
He also allowed the plaintiff's claim of eight percent interest from the date of judgement until the final date of settlement.
On general damages, Abdul Aziz said it would be assessed by a registrar and set April 2 for mention.
On counter claims filed by NLFCS, Abdul Aziz allowed only two claims, including RM150,000 for loan obtained by the plaintiff to clear nearly 100 squatters from the 5.28ha land in Kampung Tukang, about three kilometres from the Sungai Petani town.
The other claim involved RM4,500 paid by the co-operative to the project managing company in carrying out the feasibility study of the project.
However, Abdul Aziz did not allow other counter claims of the defendant amounting to RM300,000, mostly on legal fees in converting the agriculture land to housing project and ex-gratia payment to the squatters.
"Most of these expenses occurred before the commencement of this project and therefore, the defendant should pay for it," he added.
The plaintiff filed the action in court last August after NLFCS informed the company that the agreement signed in 1998 to develop the plot located next to a booming township had expired.
source:
Friday, March 30, 2012
News Blackout
News Blackout
The Malay Mail lost an opportunity a few days ago to go to town with a story on Indian newspaper vendors dumping 20,000 copies at Star headquarters because Star refused to pull back its subscription campaign scheduled for April,
Headlines could have read: "Vendors dump Star" or some other punchy headlines which nobody doubts they are capable of.
They send photographers to Menara Star to take photos of some 40 vendors who wanted to hand over a memorandum asking Star not to go ahead with its planned campaign.
The vendors were worried as this would essentially eat into their business as most of them who are receiving copies of the Star from these vendors might go for subscription instead.
After failing to see Ho Kay Tat they handed over the memo to one of the circulation big wigs and dispersed.
Why Malay Mail declined to use the story may be answered by looking at the present set of newbies at the stable after its editor in chief Yushaimi was kicked up stairs.They are from the Sun and Ho was once heading Sun. Put two and two and your guess will be as good as mine.
The Malay Mail lost an opportunity a few days ago to go to town with a story on Indian newspaper vendors dumping 20,000 copies at Star headquarters because Star refused to pull back its subscription campaign scheduled for April,
Headlines could have read: "Vendors dump Star" or some other punchy headlines which nobody doubts they are capable of.
They send photographers to Menara Star to take photos of some 40 vendors who wanted to hand over a memorandum asking Star not to go ahead with its planned campaign.
The vendors were worried as this would essentially eat into their business as most of them who are receiving copies of the Star from these vendors might go for subscription instead.
After failing to see Ho Kay Tat they handed over the memo to one of the circulation big wigs and dispersed.
Why Malay Mail declined to use the story may be answered by looking at the present set of newbies at the stable after its editor in chief Yushaimi was kicked up stairs.They are from the Sun and Ho was once heading Sun. Put two and two and your guess will be as good as mine.
Thursday, March 29, 2012
NLFCS loses breach of contract suit
Gopala Krishnan who is the actual owner of Westingmont wins battle with NLFCS after nearly two years. A leading law lecturer, Gopal took a hiatus from his rewarding career to become a contractor when he was offered by NLFCS boss Tan Sri Somasundram to put a mixed housing scheme on a 5.2 ha NLFCS land occupied by squatters
However, in 2009 NLFCS took away the land and sold it to KEDA Regional Authority on the instruction of then MIC boss Samy Vellu. He begged for compensation but when NLFCS refused to entertain him he filed a breach of contract suit against the cooperative. Read the rest here'']
High Court says NLFCS must pay project consultant for loses of profit and cost
THE Kuala Lumpur High Court today March 28) decided in favour of a relatively unknown project consultant against the National Land Finance Cooperative Society in a landmark breach of contract suit.
Judge Datuk Abdul Aziz Abdul Rahim awarded RM315, 000 in special damages and RM70, 000 in cost to Westingmont Holdings Sdn Bhd.
He also awarded an interest of 8 percent on all the claims from the date the plaintiff went into a housing project agreement with NLFCS in 1999.
On the plaintiff’s RM5.7million general damages claim, the judge though agreeing in principle left the quantum to be decided by the deputy registrar in the face of inconclusive documentary evidence.
The claims were not corroborated by an independent body and I want the plaintiff’s council to furnish the documents to the deputy registrar to decide on the actual quantum,” he told K. Ranjit Singh, the counsel for the plaintiff.
The judge fixed April 2 for the plaintiff’s counsel to furnish documentary proof on their general damages claim. NLFCS terminated the agreement with Westingmont after it sold its 5.2 ha of land in the former Sungai Tukang Estate in Sungai Petani, Kedah which Westingmont was entrusted with developing to KEDA Regional Development Authority for a mere RM2 million
In making the ruling, the judge agreed with the plaintiff’s submission that the actual development could only commence after all the proper approvals by the authorities were in place.
The defendant’s contention that Westingmont failed to carryout its end of the bargain by not developing the plot of land and thus was not entitled to any compensation was dismissed by the judge.
He agreed with the plaintiff’s submission that development could only begin after the initial approvals and a separate title was secured. In this case the failure to secure the preliminaries was not the responsibility of the plaintiff as per the agreement.
After failing to get adequate compensation for his loss of income and time from NLFCS, Westingmount, sued NLFCS for a total RM8 million.
The case went to court in August 2010 but was interrupted by the defendant taking the matter to the court of appeal in vain to dismiss the plaintiff’s claim as frivolous among others. NLFCS was represented by S Surandren of Palani, Aishah & Co.
Outside the court, on hearing the decision the legal consultant who owns Westingmont by way of proxy was speechless. “I have given up a successful law career and went into this mess and I am happy that justice prevailed today,” he told reporters.
However, in 2009 NLFCS took away the land and sold it to KEDA Regional Authority on the instruction of then MIC boss Samy Vellu. He begged for compensation but when NLFCS refused to entertain him he filed a breach of contract suit against the cooperative. Read the rest here'']
High Court says NLFCS must pay project consultant for loses of profit and cost
THE Kuala Lumpur High Court today March 28) decided in favour of a relatively unknown project consultant against the National Land Finance Cooperative Society in a landmark breach of contract suit.
Judge Datuk Abdul Aziz Abdul Rahim awarded RM315, 000 in special damages and RM70, 000 in cost to Westingmont Holdings Sdn Bhd.
He also awarded an interest of 8 percent on all the claims from the date the plaintiff went into a housing project agreement with NLFCS in 1999.
On the plaintiff’s RM5.7million general damages claim, the judge though agreeing in principle left the quantum to be decided by the deputy registrar in the face of inconclusive documentary evidence.
The claims were not corroborated by an independent body and I want the plaintiff’s council to furnish the documents to the deputy registrar to decide on the actual quantum,” he told K. Ranjit Singh, the counsel for the plaintiff.
 |
| AN overjoyed Gopal (l) congratulates his counsel Ranjit Singh |
The judge fixed April 2 for the plaintiff’s counsel to furnish documentary proof on their general damages claim. NLFCS terminated the agreement with Westingmont after it sold its 5.2 ha of land in the former Sungai Tukang Estate in Sungai Petani, Kedah which Westingmont was entrusted with developing to KEDA Regional Development Authority for a mere RM2 million
In making the ruling, the judge agreed with the plaintiff’s submission that the actual development could only commence after all the proper approvals by the authorities were in place.
The defendant’s contention that Westingmont failed to carryout its end of the bargain by not developing the plot of land and thus was not entitled to any compensation was dismissed by the judge.
He agreed with the plaintiff’s submission that development could only begin after the initial approvals and a separate title was secured. In this case the failure to secure the preliminaries was not the responsibility of the plaintiff as per the agreement.
After failing to get adequate compensation for his loss of income and time from NLFCS, Westingmount, sued NLFCS for a total RM8 million.
The case went to court in August 2010 but was interrupted by the defendant taking the matter to the court of appeal in vain to dismiss the plaintiff’s claim as frivolous among others. NLFCS was represented by S Surandren of Palani, Aishah & Co.
Outside the court, on hearing the decision the legal consultant who owns Westingmont by way of proxy was speechless. “I have given up a successful law career and went into this mess and I am happy that justice prevailed today,” he told reporters.
Friday, March 23, 2012
Tamil school adopted by Umno NGO
http://thestar.com.my/metro/story.asp?file=/2012/3/21/central/10949253
Help for Tamil school
By KHARLEEZ ZUBIN
metro@thestar.com.my
Photo by P. Nathan
THE Cheras Umno division has promised to raise funds for SJK (T) Jalan Cheras, Kuala Lumpur to help create a better environment for its pupils.
Its chairman Datuk Syed Ali Alhabshee (in blue shirt)pledged an immediate grant of RM5,000 from the Yayasan Pendidikan Cheras to the school.
He also announced that the foundation would adopt the Tamil school, making it the first in the Federal Territory to come under its school-adoption programme.
So far 36 primary schools in Kuala Lumpur have been adopted by the foundation which provides aid to deserving students.
Syed Ali, who is also chairman of the foundation, which promotes quality education at affordable cost through its own institution, Kolej Teknologi YPC-iTWEB, also pledged two computers to the school.
After more than two hours touring the school and discussing with PTA members, he promised he would bring changes to the 70-year-old school.
“I am sad to see the condition the pupils are studying in and I will study the details and find a way to get an allocation to build a better school,” he said.
Earlier, PTA chairman Dr N. Nageswararao (hair tied up in bun like kungfu master) told Syed Ali that both teachers and parents of the school were on the verge of giving up hope.
“We tried everything. We wrote several letters to the relevant ministries. But nothing happened,” he said.
The school does not have a field and proper facilities.
The roof leaks every time it rains and the ceiling is so low that pupils can touch the ceiling fan just by standing on their table.
The school, with 350 pupils and 32 teachers, is located on a 0.75ha land behind the DBKL Health Department in Cheras.
Enrolment, which once topped 500 has over time dropped as more parents sent their children to fully-aided government schools.
It has catered for children of DBKL workers and the large poor Indian community in Cheras.
“After about 50 years, the school infrastructure has hardly improved,” said Cheras MIC branch chief V. Shanmuthusamy who first alerted Syed Ali on the poor condition of the school.
Help for Tamil school
By KHARLEEZ ZUBIN
metro@thestar.com.my
Photo by P. Nathan
THE Cheras Umno division has promised to raise funds for SJK (T) Jalan Cheras, Kuala Lumpur to help create a better environment for its pupils.
Its chairman Datuk Syed Ali Alhabshee (in blue shirt)pledged an immediate grant of RM5,000 from the Yayasan Pendidikan Cheras to the school.
He also announced that the foundation would adopt the Tamil school, making it the first in the Federal Territory to come under its school-adoption programme.
So far 36 primary schools in Kuala Lumpur have been adopted by the foundation which provides aid to deserving students.
Syed Ali, who is also chairman of the foundation, which promotes quality education at affordable cost through its own institution, Kolej Teknologi YPC-iTWEB, also pledged two computers to the school.
After more than two hours touring the school and discussing with PTA members, he promised he would bring changes to the 70-year-old school.
“I am sad to see the condition the pupils are studying in and I will study the details and find a way to get an allocation to build a better school,” he said.
Earlier, PTA chairman Dr N. Nageswararao (hair tied up in bun like kungfu master) told Syed Ali that both teachers and parents of the school were on the verge of giving up hope.
“We tried everything. We wrote several letters to the relevant ministries. But nothing happened,” he said.
The school does not have a field and proper facilities.
The roof leaks every time it rains and the ceiling is so low that pupils can touch the ceiling fan just by standing on their table.
The school, with 350 pupils and 32 teachers, is located on a 0.75ha land behind the DBKL Health Department in Cheras.
Enrolment, which once topped 500 has over time dropped as more parents sent their children to fully-aided government schools.
It has catered for children of DBKL workers and the large poor Indian community in Cheras.
“After about 50 years, the school infrastructure has hardly improved,” said Cheras MIC branch chief V. Shanmuthusamy who first alerted Syed Ali on the poor condition of the school.
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