Tables turned in a defamation lawsuit when the Court of Appeal restored the action previously struck out by the High Court.
Decided on June 24, Justice Michael Peter Burrell heard the application on June 15 made by appellants Mahadeer Mohamed and company Nasreen Jaya Sdn Bhd against respondents Ubayathullah Haja Mohideen, Zainah binti Haji Muhammad, Awangku Muhammad Dinie Hazwan bin Pengiran Haji Sahari and company Sri Azlina Sdn Bhd.
The dispute originated between the appellants and respondents concerning the ownership and management of Nasreen Jaya premises.
Mahadeer claimed that when he went back to India in 2017, he was prevented from returning to Brunei by Zainah’s activities for two years longer than he wished to be away.
Over the period, it is further alleged, by way of forgeries and deceit, Mahadeer’s interest in the shop business was eradicated, causing him financial loss and hardship.
The action was struck out by the High Court on October 31, 2022 which held that a police report made by Zainah was protected by absolute privilege and thus disclosed no reasonable cause of action.
However, the Court of Appeal overturned the decision, citing “whether or not a document is protected by privilege, absolute or qualified, will depend on the particular circumstances of its making”.
The Appellate Court, where Chief Justice Dato Seri Paduka Steven Chong and Justice Conrad Seagroatt sat in alongside Justice Burrell, decided that “absolute privilege is typically appropriate where the statement made is a part of an investigation into a particular crime intending, ultimately, to lead to an arrest”.
The court added that “taken in context the statement by (Zainah) was one of a series of allegations made by the respondents designed to defraud the appellant of his livelihood”; and the statement “is part of the factual matrix which does not attract privilege, absolute or otherwise, and is a matter for the judge to consider when hearing the whole of the evidence.
The Court of Appeal also disagreed with the High Court’s decision that the action brought by Nasreen Jaya against Ubayathullah and Zainah (among other parties) should be stayed on the basis of an objection by the respondents that counsel appointed to act for Nasreen Jaya did not have proper authority.
The Court of Appeal lifted the stay and allowed Nasreen Jaya’s action to proceed following the appellant’s successful application on June 6 to adduce evidence clarifying that the procedure for the removal of Nasreen Jaya’s directors and the appointment of counsel to act in this action had been complied with.
The Appeals Court added “regardless of the respondent’s technical objection, Mahadeer’s ability to continue his action, including giving evidence on behalf of Nasreen Jaya (whether a party or not) was unaffected” and the respondent’s objection was “unnecessarily obstructive and inappropriate.
“In all these circumstances this court is persuaded that the stay of the action may now be lifted and the issue proceed to trial”.
The Court of Appeal concluded by allowing the application and ordered the respondents to pay their costs.
The appellant was represented by lawyers On Hung Zheng and Andrew Jonathan Wong from the law firm CCW Partnership.
Respondents were represented by lawyers Eugene Loh, Anlan Hee and Lim Li Chyi of Messrs Yusof Halim and Partners. – Fadley Faisal
