CASE REVIEW

Datin Zainun binti Ismail v Tuan Minah binti Syed Abdul Rahman & Anor
Done by
: Zulaikha Binti Azahir (2017678074)
: Nik Arisya Syamimi Binti Nik Rozhan (2017806972)
Facts of the case
◦ The plaintiff in this case sued the defendants for $13,450, interest and costs. She
claimed that the said sum was lent to the defendants each of whom had
acknowledged receipt of the same on I.O.U. chits of $6,725 each. Both I.O.U. bear the
same date, October 14, 1974. The defendants, however, denied that it was a loan.
They alleged that the plaintiff was a partner in buying and selling jewellery with the
defendants. The defendants claimed that the plaintiff's share in the capital was $5,000
in cash and that the plaintiff had persuaded the defendants to thumb-print blank I.O.U.
notes which the defendants did on the understanding that each I.O.U. would be for an
amount of $2,500 as a security for the said sum of $5,000.
The First Issue
◦ 1.Whether the I.O.U chits that contained the thumb prints of the defendants are valid
or are void ab initio due to fraud?
◦ In this current case, the defendants alleged that the plaintiff had obtained their thumb
prints on the I.O.U chits by fraudulent means. It was claimed that the plaintiff through
persuasion requested the defendants to thumb-print blank I.O.U. notes which the
defendants did on the understanding that each I.O.U. would be for an amount of
$2,500 as a security for the sum of $5,000 deposited by the plaintiff being her share in
the business.

◦ According to Mohamed Zahir J, the burden of proof on fraud is on the defence. The
general rule prescribes that fraud cannot be presumed from mere circumstances or
suspicion and the burden of proving the charge of fraud, collusion, misrepresentation
and undue influence lies upon the person who seeks to impeach the validity of any
transaction on these grounds, in which concerning the current case refers to the
defendants. This means that the defendants need to discharge the burden of proof
cast on them for fraud to be accepted as a defence.
◦ However, the court had decided that the defendants had failed to do so because of
several reasons. Firstly, the court believed that no force were used upon the
defendants during the filling of the I.O.U forms before they put their thumb print on it.
Secondly, there is no clear evidence by the defendants that the plaintiff
misrepresented to them that the I.O.U. was for $2,500 each. The nearest evidence to
this effect was by 1st defendant when she stated that the plaintiff forced her and 2nd
defendant to thumb-print the I.O.U. as they took her money in the sum of $5,000 but
later added that she thought it was for $5,000. The other statement by her was to the
effect that the plaintiff told her she had to pay the sum of $5,000. But further on, she
stated she thumb-printed because she thought the plaintiff had written $2,500 on the
I.O.U. The 2nd defendant did not disclose any evidence of misrepresentation on the
part of the plaintiff. Next, there is inconsistency in the statements of the defendants. The
time of the I.O.U being thumb-printed is on 14 October 1974 while the alleged date
that the defendants received $5,000 that is claimed to be covered by the I.O.U is on 24
October 1974. Since the money was received on 24 October, the date of the I.O.U
being established should be on a later date and not on 14 October 1974. This had
caused the judge to indicate the whole defence a fabrication.
In Conclusion
◦ The court had made the decision that the defendants had failed to discharge the onus
of proof on them.
The Second Issue
◦ Non est factum is a defence in contract law that allows a signing party to escape
performance of an agreement which is fundamentally different from what he or she
intended to execute or sign. A claim of non est factum means that the signature on the
contract was signed by mistake, without knowledge of its meaning. A successful plea
would make the contract void ab initio. In this case, the first and the second defendant
pleaded non est factum because they thought 5000 was actually the plaintiffs’s
contribution towards partnership business, they did the thumb-print on the I.O.U chits
through persuasion of the plaintiff on understanding it was for 2500 after the business
being unsuccessful. However, the court stated that the defendants might allege in the
defence of non est factum alone. This can be referred in the case of Foster v
Mackinnon “And it is invalid not merely on the ground of fraud, where fraud exists, but
on the ground that the mind of the signer did not accompany the signature, in other
words, that he never intended to sign, and therefore in contemplation of law never did
sign, the contract to which his name is appended.”
◦ The court also discussed about the plea of non est factum without any element of
fraud. the burden of proof lies on the person who alleged to have executed a
document denies execution for a certain sum but admits executing a document
believed to be for a lesser sum, the onus is on the plaintiff

◦ However, in this case there is a conflict opinion where the burden of proof can lies on
the person when he admits his signature on the document but sets up the defence
that he signed it blank.

◦ in this present case, the court do not think that the defendants are fully illiterate since
the first defendant can write and read and the second defendant knows what had
been described in the I.O.U chits.

◦ therefore, the illiteracy exception does not strictly apply to them

In Conclusion
◦ The court held that the plaintiff had successfully discharge the burden of proof.