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[1989] Part 5 Case 11 [HCM] |
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www.ipsofactoJ.com/archive/index.htm
[1989] Part 5 Case 11 [HCM] |
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HIGH COURT OF MALAYA |
Saw
- vs -
Cheong
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Coram EDGAR JOSEPH JR J |
6 JUNE 1989 |
Judgment
Edgar Joseph Jr J
This is a purchaser’s action for specific performance of an agreement of sale and purchase contained in and constituted by a memorandum in writing dated 2 April 1964 (‘the agreement’) wherein the first defendant representing himself to be the owner of a dwelling house known as 11–A, Taman Perak, Penang, and the land on which it stands (‘the disputed property’) had agreed to sell the same to the plaintiff at a price of $22,000.
It would be useful if, without further ado, I reproduce the agreement, which incidentally, was made out in the personal handwriting of the first defendant, the script being both perfectly legible and firmly written, perhaps understandably so, since he is a retired English school teacher. It was as follows:
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I, Cheong Yew Weng received from Madam Saw Gaik Beow the sum of dollars one thousand seven hundred only ($1,700) as initial payment for the purchase of house No 11A Taman Perak off Persiaran Perak, which I have purchased from the Borneo Building Society and which is made in my name and I will acknowledge future payments of any amount periodically until the full cost of the house which is dollars twenty-two thousand only ($22,000) is fully paid up, then the above house will be transferred to the said Saw Gaik Beow. Signed, Cheong Yew Weng One copy of the above statement to each. |
At the foot of the agreement, were a number of endorsements, all in the personal handwriting of the first defendant, as follows:
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Received the under-mentioned payments from Mdm Saw Gaik Beow Payments
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Pausing there for a moment, three observations deserve mention:
first, the transfer of the disputed property was subject to payment of the balance of $20,300 but no date was specified as to when this was to be;
second, although the first defendant represented that the disputed property was in his own name, in fact, unbeknown to the plaintiff then, the registered proprietors thereof were the second and third defendants, the son and daughter of the first defendant, respectively;
third, at the time of execution of the agreement and indeed even now, the disputed property is subject to a charge in favour of the Malaysia Borneo Building Society, Penang, (‘the MBBS’) to secure repayment of a loan at interest repayable by instalments of $128 pm.
In these circumstances, the second and third defendants have taken the position that as they neither knew nor approved of the agreement at the time of its execution by the first defendant nor, for that matter, as they never subsequently ratified the same, is it in any way binding upon them? As for the first defendant, he has taken the position that although he did sign the agreement, he did not give his free consent to the transaction, because he was exposed to such influence from the plaintiff, his spiritual adviser, as to deprive him of the free use of his judgment.
It is as well, if at this stage, I introduce the parties in this suit. The plaintiff, who neither reads nor writes English, is a fortune teller by occupation but denies that she is also a temple medium as alleged by the defence. In 1964, she was 45 years of age. She is of average intelligence and mental alertness having regard to her station in life. The first defendant is a retired normal-trained English school teacher having been attached to the Methodist Boy’s School, Penang, and speaks fluent English. In 1964 he was 55 years of age. He struck me as intelligent and mentally alert having regard to his station in life with good powers of recall. He was also a careful witness who answered questions — especially under cross-examination — with due deliberation and in a perfectly composed manner. He impressed me as an individual with a strong personality and not one who was going to be brow-beaten or led by the nose however hectoring the cross-examination was going to be.
The second defendant, a son of the first defendant, is a clerk attached to the National Electicity Board, Penang, and was, in 1964, 30 years of age and attached to the City Council, Penang, as a clerk. I consider him to be a witness of average intelligence and mental alertness having regard to his station in life.
The third defendant, a daughter of the first defendant, is a teacher and was, in 1964, 27 years of age. Although she was present in court she did not give evidence and so I had no means of assessing her personality or her intellectual content.
Both the second and third defendants are unmarried and, at all material times to this suit, have lived with the first defendant under the same roof. They were obviously a very closely-knit Straits-born middle class Chinese family and it was apparent that the second and third defendants were children with a strong sense of filial piety towards their father, the first defendant. It seemed to me that all three were completely devoted to each other.
It was common ground that the defendants came to know the plaintiff when they consulted her but there was an acute conflict of evidence as to why they did so.
The plaintiff’s version was that she first came to know the three defendants when they called at her house at Paya Terbong and consulted her to have their fortunes read. This was a few years prior to 1964. Thereafter, she said the defendants visited her on numerous occasions for this purpose ending in the events which resulted in the execution of the agreement which I shall be examining in detail later on in this judgment.
The first defendant’s version, on the other hand, was that sometime in 1963, he and one of his sons named Moe Choy (since deceased) were both sick but did not know what they were suffering from. Doctors qualified in Western medicine had treated them but without success. So they both went to the plaintiff s house in Paya Terbong and consulted her and were treated by her with some success.
I shall next touch on the events which occurred at these consultations as well as subsequent events, as to some of which, there was an acute conflict of evidence.
According to the plaintiff, sometime in March 1964, the first defendant visited her at home and himself suggested that she buy a house in the town area as this would save him the trouble of travelling all the way to Paya Terbong each time he wished to consult the plaintiff. But the plaintiff replied that she had no money, to which the first defendant replied that she need not worry as if he sold her a house she could pay whenever able. On hearing this, the plaintiff said that she accepted the offer. The first defendant then proceeded to say that he had two houses in the same row in Taman Perak and mentioned a price of $22,000. The plaintiff remarked that the price was high. But the first defendant replied that the plaintiff could pay him slowly and left.
Shortly thereafter, on 2 April 1964 the first defendant called at her house again and said that he wished to sell the disputed property and suggested that she called at his house later the same day and brought with her an initial payment of $1,700. The plaintiff agreed and did keep the appointment, being accompanied by her friend Goh Mun Jooi (DW2) (whom she later married) and bringing along with her a sum of $1,700 which she duly handed over to the first defendant who gave her an acknowledgment recorded in his own handwriting in an exercise book (p 1 AB1) being the agreement. The first defendant also made a corresponding entry in another exercise book which he retained for himself.
The plaintiff emphasized that at this meeting with the first defendant the other two defendants were also present. Indeed, the four of them, that is to say, the plaintiff and the three defendants were all seated at a table and discussed the mode of payment of the balance, the purchase price having been previously agreed at $22,000. It was agreed that the balance should be paid by monthly payment of such sums as the plaintiff could afford.
After the agreement was signed by the first defendant, Goh explained its contents to the plaintiff. This, as I have indicated, was in the first defendant’s house and in the presence of the first, the second and the third defendants. However, at this point of time, the plaintiff had not seen the disputed property.
Later, in the first week of May 1964 the plaintiff met the first defendant at the disputed property and the latter handed her the keys to it. This was the first time the plaintiff saw the disputed property. The plaintiff then cleaned the disputed property and a few days after that moved into it.
On 21 May 1964 the plaintiff made a further payment of $300 to the first defendant towards the purchase price and thereafter she made 27 separate payments amounting to $3,193.90, each of which the first defendant duly acknowledged in the exercise book, P2, in his personal handwriting. At the same time, the first defendant made corresponding entries in his own exercise book which the plaintiff thumb-printed.
In addition, the plaintiff said that at the request of the first defendant, she also paid the quit rents and assessment rates on the disputed property and the instalments towards principal and interest due under the charge executed in favour of the MBBS. In all, the plaintiff had paid an aggregate sum of $12,751.80, towards the purchase of the disputed property and confirmed that the summary, P5, which reflected the payments made, was correct in every detail. She added that she held all the receipts for payment of the assessments, quit rents and instalments of principal and interest.
When, sometime in mid 1972, the plaintiff wished to settle the balance of the purchase price she thought that the first defendant was avoiding her. At this time, the plaintiff said that she had come to know that the disputed property was registered in the names of the second and the third defendants and she therefore queried the first defendant about this. The latter replied that she was not to worry because ‘a coconut tree would not bear durians’ which expression the plaintiff took to mean that the second and the third defendants would definitely do as instructed by their father. On hearing this, the plaintiff said she felt reassured.
However, the second and the third defendants did not agree to execute a transfer of the disputed property to the plaintiff and so the plaintiff consulted her solicitors who sent a formal notice in writing, dated 11 January 1976 being exh P8, addressed to the first defendant, calling upon him to nominate a date for execution of the transfer of the disputed property. There was no satisfactory response to this and hence the plaintiff caused to be issued the writ herein but only as late as 8 December 1978.
I must now turn to the defence version. Now, according to the first defendant who claimed that he was a devout and superstitious Buddhist, sometime in 1963, he first consulted the plaintiff about his own and his son Cheong Moe Choy’s health problems, the cause of which he did not know. On this occasion, the first defendant said that the plaintiff went into a trance and, speaking in a strange voice, she told him and his son Moe Choy that the latter was in great danger as he had offended a spirit but that his (the first defendant’s) condition was not serious.
The plaintiff then gave the first defendant and his son a glass containing ‘holy water’ and a talisman to be burnt and its ashes to be dissolved in water and drunk, which they did, and as a result, it was said that they both felt a marked improvement. Not unnaturally, the plaintiff won the trust and confidence of the first defendant, and this led to his regularly seeking the spiritual advice and guidance of the plaintiff in dealing with problems which arose further testified that sometime towards the end of 1963 he consulted the plaintiff about his children’s intended purchase of the disputed property; in particular, he sought the advice of the plaintiff about the ‘Hong Sui’ or geomancy of the disputed property. The plaintiff then prayed after which she told the first defendant that the disputed property was good.
However, a few moments later, the first defendant went on to allege - though this was denied by the plaintiff - that the god of ‘Sam Poh’, of which the plaintiff was an ardent devotee, liked the disputed property, and so the plaintiff wished to acquire it for her practice in town. Accordingly, the plaintiff urged the first defendant - and this too was denied by the plaintiff - to persuade the second and the third defendants to sell the disputed property to her and, if he succeeded in this, the first defendant and his family would be blessed with good health and prosperity; if not, the first defendant would suffer ‘dire consequences’. The first defendant replied that he would have to think about it.
On a subsequent visit to the plaintiff’s house, probably on 2 April 1964 the plaintiff ‘expressed great keeness’ in wanting to buy the disputed property and took out $1,700 in cash and handed it over to the first defendant for safekeeping. She added that once her family estate was sold she would have plenty of money and would then buy the disputed property. The first defendant then asked the plaintiff for a piece of paper on which to write a receipt but the plaintiff replied that would not do so she was illiterate and did not understand English. Instead, the plaintiff produced two exercise books and a piece of paper on which was written something in English and asked the first defendant to copy onto the exercise books the contents of the paper which had been written by her very close friend.
Upon reading the contents of the paper, the first defendant told the plaintiff that he was not the owner and could not therefore sell the disputed property but the plaintiff replied that he was not to be afraid and was only to help her. The plaintiff added that once she was in funds the first defendant was to persuade his children to sell the disputed property to her. The plaintiff threatened that if the first defendant did this good deed he would receive many blessings but if he did not he would be responsible for ‘all dire consequences’. In the circumstances, the first defendant claimed that feeling that he had no choice he did as requested and signed on one of the exercise books (identified by him as P2) but did not date it. The plaintiff retained the exercise book P2 but gave the first defendant the other exercise book. The first defendant said that he had given this other exercise book to his former solicitor Mr. Rajasingam but that the latter had not returned it to him although requested to do so in writing — see the letter dated 13 October 1981 being exh AB3 p 30. However, Mr. Rajasingam had replied to this letter stating that all documents had been taken back by the first defendant (see p 33 AB3) though the latter denied this.
The first defendant maintained that he had signed the exercise book, P2, not in his house as alleged by the plaintiff, but in the plaintiff’s house and, further, that when he did so, only the plaintiff was present, thereby denying the plaintiff’s version that Goh (PW2) was also present. On returning home that day, the first defendant said that he told no one, either about the exercise book or the money — not even to his children.
On his own admission, the first defendant said that subsequent to signing the exercise book P2 he did not visit the plaintiff again but that since the plaintiff had not come up with a larger sum of money as promised he pressed her saying: ‘You have not fulfilled your promise.’ To which it was said the plaintiff replied that she needed more time to sell off the family estate. In the meanwhile, the first defendant alleged that the plaintiff had asked that the disputed property be rented out to her. At this point the first defendant replied that he would have to consult his children and having done so it was agreed on both sides that the rental be $128. 10pm and, in addition, the plaintiff was to pay the quit rent and assessment rates.
At first, the plaintiff paid the alleged rental to the first defendant and this was duly acknowledged by him on P2 up to December 1966 but, thereafter, because the plaintiff was not able to come up with the money to buy the disputed property, the first defendant claimed that he ‘stopped taking rent’.
I must now proceed to an evaluation of the evidence.
I have already observed, when making my introductory remarks regarding the parties, that the defendants struck me as a closely-knit family who were completely devoted to each other. I would add that they have also lived under the same roof for very many years. I am convinced that they were the sort of family who would have confided in each other regarding any matter of importance and of common interest, for example, a matter concerning the sale of a house belong to any of them. To say, therefore, that in signing the agreement, the first defendant did so without the authority express or implied of the second and the third defendants is to tell me something which strains credibility to such an extent that I must hold that such an assertion is false and untrue. To put it bluntly, I am more than satisfied that all three defendants were not only lying on this important aspect of the case but also not very clever at telling lies.
There were also several other unsatisfactory features in the case for the defence and I need no more than refer to the more obvious ones.
Firstly, when cross-examined by counsel for the second and the third defendants, the first defendant claimed that his children (the second and the third defendants) first came to know of the agreement only when the writ herein was served upon them - that would be in December 1978, whereas, when cross-examined by counsel for the plaintiff, he changed his tune and claimed that they first came to know of it as early as 5 January 1972 when, following a report by the plaintiff, the police picked up all three defendants for questioning.
Secondly, the first defendant claimed that he received the $1,700 from the plaintiff for safekeeping and that the agreement which he signed was intended as a receipt. Quite apart from the fact that nowhere in the agreement is there mention made of the money having been received for safekeeping, if the first defendant’s version were true, it is not possible to account for the necessity of his retaining a copy of the agreement. But had the $1,700 been taken as a deposit to account of the purchase price, then such an act would have been natural.
Thirdly, the first defendant had testified in examination- in-chief, that when sometime after he had signed the agreement, the plaintiff did not come up with a large sum of money as promised, his reaction — to quote his own words — was: ‘So, I pressed her. I said: ‘You have not fulfilled your promise’. She asked for more time to sell off the family estate. Since she was anxious to move to town she asked me to let the house out to her. I told her I would have to consult my children.’
The first defendant’s conduct was hardly that of a victim of the plaintiff’s undue influence.
Fourthly, as to the subsequent payments received, the first defendant claimed that this was by way of rent, but of course, nowhere in the agreement was mention made of this fact. Instead, we find provisions appropriate to a sale. Bearing in mind that the first defendant is an educated person and the agreement was in his personal handwriting, is impossible to give the slightest credence to this explanation. Furthermore, if these payments were intended as rent, then I would expect them to be disclosed in the Income Tax Returns of the second and the third defendants but there was no evidence that this had been done.
Fifthly, the first defendant claimed that he had written the agreement on the instigation of the plaintiff and did so by merely copying out the writing appearing in a piece of paper handed to him by the plaintiff, alleging that he was then a victim of her undue influence. But the firm and clear handwriting of the first defendant appearing in the agreement is hardly consistent with such a state of affairs.
Sixthly, why if the defence version is true that when the first defendant ‘executed the agreement he was the victim of undue influence exerted by the plaintiff were not steps taken, at least at a later stage, to repudiate it? Be it noted that the instalment payments which were thereafter made, continued for a very considerable period of time, ending more than six years later on 7 December 1971, yet, no attempt whatever had been made at repudiation. Surely, assuming for one moment and purely for the sake of argument, that the agreement was executed as a result of undue influence, such influence could not have persisted for so many years.
Seventhly, it is also of interest to note that the first defendant’s solicitors’ first reaction to the plaintiff’s solicitors’ letters of 11 January 1972 (exh P8) calling for a date for completion, was by letter dated 28 January 1972 (exh P9 AB3) categorically denying the allegations therein relating to the agreement and contending that the disputed property had merely been let out to the plaintiff on a month to month basis. Significantly, not a word was mentioned about the first defendant having signed the agreement as a result of undue influence exerted by the plaintiff upon him. Nor, for that matter, did the defence attempt to call the solicitor who wrote the letter exh P9 to explain this glaring omission.
Accordingly, I am satisfied that the plaintiffs evidence that the agreement was signed at the first defendants’ home at 1, Taman Perak, Penang, in the presence of the second and third defendants and her husband Mr. Goh (PW2) is true. I also accept the plaintiff’s evidence that before the agreement was signed by the first defendant, all the parties to this action, including the second and the third defendants, sat at a table and discussed its terms and were of one and the same mind; in other words, to use a familiar Latin tag, there was consensus ad idem. For the sake of completeness, I would go further and find that the agreement reflects and confirms what had been orally agreed by all the defendants. The agreement is thus binding upon the second and the third defendants even though they did not sign it, for it was signed by the first defendant as their duly authorized agent.
Why the second and third defendants did not sign the agreement since the disputed property was registered in their names and they were present at the time of its execution is a matter for speculation. But, it may be explained by the fact that the first defendant was the head of the family and by his dominant position in relation to the second and the third defendants. In any case, I would emphasize that I believe the plaintiffs version as to the circumstances under which the agreement came to be signed by the first defendant.
These findings must of necessity undermine the case advanced on behalf of the first defendant that he was induced into receiving the initial payment of $1,700 and signing the agreement by reason of undue influence exercised by the plaintiff over him so as to render the transaction void. I would go further and say that these findings put paid to the first defendant’s defence that he did not give his free consent because he was exposed to such influence from the plaintiff, his so-called spiritual adviser.
I think this would be a convenient point for me to deal with the law on undue influence as defined in s 16 of the Contracts Act (Rev 1974). The provisions of that section are as follows:
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A contract is said to be induced by ‘undue influence’ where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. |
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In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another
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Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. Nothing in this subsection shall affect the provisions of s 11 of the Evidence Act 1950. |
Now, s 16 of our Contracts Act is in pari materia with the identically numbered section of the Indian Contracts Act.
In Poosathurai v Kannappa Chettiar AIR 1920 PC 65, Lord Shaw, speaking for their Lordships of the Board indicated that there was no difference on the subject of undue influence between the Indian Contracts Act 1872 and the English law. Accordingly, the general principles of equity as illustrated by English authorities would afford considerable assistance in resolving problems concerning undue influence in our courts.
In National Westminster Bank v Morgan [1985] 1 All ER 821, the House of Lords held at p 827 h to i that:
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Whatever the legal character of the transaction, the authorities show that it must constitute a disadvantage sufficiently serious to require evidence to rebut the presumption that in the circumstances of the relationship between the parties it was procured by the exercise of undue influence. In my judgment, therefore, the Court of Appeal erred in law in holding that the presumption of undue influence can arise from the evidence of the relationship of the parties without also evidence that the transaction itself was wrongful in that it constituted an advantage taken of the person subjected to the influence which, failing proof to the contrary, was explicable only on the basis that undue influence had been exercised to procure it. |
Lord Scarman referred to the principle justifying the court in setting aside a transaction for undue influence enunciated by Lindley LJ in Allcard v Skinner as not ‘a vague policy’ but specifically the victimization of one party by another. This is how Lindley LJ put it:
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The principle must be examined. What then is the principle? Is it that it is right and expedient to save persons from the consequences of their own folly? Or is it that it is right and expedient to save them from being victimized by other people? In my opinion the doctrine of undue influence is founded on the second of these two principles. Courts of equity have never set aside gifts on the ground of the folly, imprudence, or want of foresight on the part of donors. The courts have always repudiated any such jurisdiction. Huguenin v Baseley (1807) 14 Ves 273, (1803–13) All ER 1 is itself a clear authority to this effect. It would obviously be to encourage folly, recklessness, extravagance and vice if persons could get back property which they foolishly made away with, whether by giving it to charitable institutions or by bestowing it on less worthy objects. On the other hand, to protect people from being forced, tricked or misled in any way by others into parting with their property is one of the most legitimate objects of all laws; and the equitable doctrine of undue influence has grown out of and been developed by the necessity of grappling with insidious forms of spiritual tyranny and with the infinite varieties of fraud. |
The House then proceeded to follow the Privy Council cases of Bank of Montreal v Stuart [1911] AC 120 and Poosathurai v Kannappa Chettiar [1919] LR 47 Ind App 1 and concluded at p 829 f to h:
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The wrongfulness of the transaction must, therefore, be shown: it must be one in which an unfair advantage has been taken of another. The doctrine is not limited to transactions of gift. A commercial relationship can become a relationship in which one party assumes a role of dominating influence over the other. In Poosathurai’s case the Board recognized that a sale at an undervalue could be a transaction which a court could set aside as unconscionable if it was shown or could be presumed to have been procured by the exercise of undue influence. Similarly, a relationship of banker and customer may become one in which the banker acquires a dominating influence. If he does and a manifestly disadvantageous transaction is proved, there would then be room for the court to presume that it resulted from the exercise of undue influence. |
And, concluding with a word of warning, Lord Scarman speaking for the House said:
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There is no precisely defined law setting limits to the equitable jurisdiction of a court to relieve against undue influence. This is the world of doctrine, not of neat and tidy rules. The courts of equity have developed a body of learning enabling relief to be granted where the law has to treat the transaction as unimpeachable unless it can be held to have been procured by undue influence. It is the unimpeachability at law of a disadvantageous transaction which is the starting point from which the court advances to consider whether the transaction is the product merely of one’s own folly or of the undue influence exercised by another. A court in the exercise of this equitable jurisdiction is a court of conscience. Definition is a poor instrument when used to determine whether a transaction is or is not unconscionable; this is a question which depends on the particular facts of the case. |
Accordingly, it is, I think, not an unfair summary of the legal position to say that it is only in exceptional circumstances that the equitable remedy of setting aside a transaction on grounds of undue influence will be granted. So even if a bargain may appear to be harsh, courts are not inclined to intervene unless it can also be demonstrated that the transaction was to the manifest disadvantage of the person subjected to the dominating influence. The foundation of the principle to grant equitable relief of this kind is not inequality of bargaining power but the prevention of victimization by one party of another.
Lastly, the doctrine is not limited in its application to gifts but extends to commercial transactions as well; it could be a ‘hard and inequitable’ agreement (see Ormes v Beadle [1860] 2 Giff 166; 66 ER 70 at p 74) or ‘unconscionable’ in that it was a sale at an undervalue (see Poosathurai v Kannappa Chertiar [1919] LR 47 Ind App 1 at pp 3-4).
Applying the principles enunciated above, to my findings of fact aforesaid, I am completely convinced that the transaction concerned was not unfair to the defendants. Upon my interpretation of the facts, there was no evidence that the transaction itself was ‘wrongful in that it constituted an advantage taken of the person subjected to the influence, which failing proof to the contrary, was explicable only on the basis that undue influence had been exercised to procure it.’
Looking back, quite apart from the question of manifest disadvantage, a party relying on the plea of undue influence would have to show that (a) the other party had the capacity to influence him, (b) the influence was exercised, (c) its exercise was undue and (d) that its exercise brought about the transaction (see Bank of Credit & Commerce v Aboody [1989] 2 WLR 759). Upon the evidence before me, I have already stated why I am also convinced that none of these conditions was satisfied by the defence. Accordingly the plea of undue influence fails and I next consider the defence of limitation.
In the present case, I have already observed that the agreement was silent as to the date by which the balance of the purchase price had to be paid. But, the evidence disclosed that as at 7 December 1971 the plaintiff had paid a total sum of $12,751.80 leaving a balance of $9,248.20 and that on that date a last instalment payment of $128 had been made to the MBBS. Moreover, the plaintiff had been given vacant possession of the disputed property. The plaintiff’s then solicitors, by a letter dated 11 January 1972 with copies to the second and third defendants, called upon the first defendant to give an early date when the balance of the purchase price could be paid and a transfer, free of the charge in favour of the MBBS executed. However, the second and the third defendants refused to do so.
Upon these facts, counsel for the first defendant had argued, relying upon Nadefinco Ltd v Kevin Corp Sdn Bhd [1978] 2 MLJ 59 and Loh Wai Lian v Sea Housing Corp Sdn Bhd [1984] 2 MLJ 280, that the plaintiff’s cause of action accrued on 7 January 1972 that is to say, one month after the due date of the last instalment to the MBBS, that being a reasonable time allowed for successive instalment payments by the plaintiffs, having regard to the general pattern of instalments payments from 2 April 1964 to 7 December 1971.
Accordingly, as the writ herein was issued on 1 December 1978, and the period of limitation being, six years by reason of s 6 of the Limitation Act, the plaintiff’s claim was barred.
I regret I find counsel’s submission totally unacceptable. Both Nadefinco [1978] 2 MLJ 59 and Loh Wai Lian are readily distinguishable.
In the first of these cases, the action was not for recovery of land but for recovery of tribute money under a lease fortified by a guarantee. The relevant section was therefore not s 9 but s 6 of the Limitation Act and so it was held that the cause of action accrued the instant the mining company failed to pay the first instalment due and therefore the action was barred by limitation, it having been commenced more than six years after the cause of action arose.
In the second case, the purchaser of a house under a sale and purchase agreement sued the vendor developer for liquidated damages for delay in the completion of a shophouse under the sale and purchase agreement and the issue was whether the action was barred by s 6 of the Limitation Act. It was held that the trial judge was right in holding that the cause of action was founded on a breach of contract. That being so, the breach committed by the defendant was in failing to complete and to give vacant possession of the shophouse within 18 months of the date of agreement as stipulated therein. Accordingly, the action was founded on contract and not on any other right; so the cause of action accrued on the date of the breach.
Having said that I must now refer to other authorities which seems to me apposite to this case.
In Read v Brown (1888) 22 QBD 128 Lord Esher MR. defined ‘cause of action’ as the entire set of facts that give rise to an enforceable claim; the phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment.
In Reeves v Butcher [1891] 2 QB 509 Lindley LJ said:
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This expression, ‘cause of action’, has been repeatedly the subject of decision, and it has been held, particularly in Hemp v Garland, decided in 1843, that the cause of action arises at the time when the debt could first have been recovered by action. The right to bring an action may arise on various events; but it has always been held that the statute runs from the earliest time at which an action could be brought. |
It is elementary that in the case of actions founded on contract time runs from the date of breach (see Gibbs v Guild (1881) 8 QBD 296 at p 302). But, in the case of actions founded on any other right time runs from the date on which that right is infringed or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted (see Bolo v Koklan AIR 1930 PC 270).
Now, there is authority for saying that whether an action is for specific performance of an agreement or for a declaration of title to land, it is essentially an action to recover land and for purposes of limitation time runs from the date of any infringement or at least a clear and unequivocal threat to infringe that right (see Nasri v Mesah; [1971] 1 MLJ 32; Ahmad Hussin v Hajjah Mek Hussain [1973] 1 MLJ 18).
In the present case, the plaintiff had paid a substantial part of the purchase price and had gone into possession. The last instalment paid towards the purchase price was, as I have said, the sum of $128 on 7 December 1971. Then, by a letter dated 11 January 1972 the plaintiffs solicitors had written to the first defendant, with copies extended to the second and the third defendants, stating that the plaintiff was ready, able and willing to pay the balance of the purchase price and accordingly calling upon the first defendant to specify an early date when the balance could be paid and a transfer of the disputed property free of the charge in favour of the MBBS executed by the second and the third defendants in favour of the plaintiff.
However, the solicitors for the second and the third defendants replied by letter dated 28 January 1972 (exh P 15) stating that their clients were the registered proprietors of the disputed property and that they had never at any time authorized their father the first defendant to sell the disputed property as alleged or at all, and further, that they had never at any time been privy thereto. Additionally, it was said that the first defendant had merely let out the disputed property on their clients’ behalf to the plaintiff who was by then in arrear with payment of his rent.
In my opinion, the cause of action in this case accrued from the date of the service of the letter P 15 refusing the demand made by the plaintiff’s solicitors, contained in their letter, P8, calling for a transfer of the disputed property. This refusal, in my view, constituted evidence of the first clear unequivocal threat to infringe the plaintiff s title (see Ng Moh v Tan Bok Kim [1969] 1 MLJ 46). As the writ in this case was issued on 8 December 1978 and the period of limitation applicable being 12 years by reason of s 9 of the Limitation Act and not six years by reason of s 6, the action was commenced well within time and the plea of limitation accordingly fails.
Before I pass on to pronouncing the orders consequent upon my conclusions aforesaid, I have some general observations to make.
It is obvious from this judgment that my decision, so far as the factual issues were concerned, turned upon my assessment of the credibility of the parties and their witnesses. However, in arriving at my findings as to credibility, I kept very much in the forefront of my mind the wise advice of Mr. MacKenna J which appears in a paper entitled ‘Discretion’ read at the University College, Dublin, on 21 February 1973, printed in the Irish jurist, vol IX, new series, p 1, namely:
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This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as, for example, those recorded in contemporary documents or spoken to by the independent witnesses .... I judge a witness to be unreliable if his evidence is in a serious respect, inconsistent with these undisputed or indisputable facts, or of course, if he contradicts himself on important points. When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to me the more probable, the plaintiffs or the defendants. |
And, in Lek v Mathews [1926] 25 L1 L Rep 525 at p 543, Atkin LJ said:
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I fully appreciate that the trial judge has advantages in seeing the witnesses. For myself, after a considerable personal experience of seeing witnesses, I think those advantages are often exaggerated. I would attach much more importance to the intrinsic value of the evidence, its relation to other facts clearly proved or admitted, than to the demeanour of the witness. I have known witnesses of truth with the demeanour of equivocation, and witnesses of untruth with the demeanour of righteousness .... The lynx-eyed judges who can discern the truth teller from the liar by looking at him is more often found in fiction or in appellate judgments than on the Bench. But I recognize that shorthand notes do not always tell the whole story as presented to the tribunal of first instance and I have taken that into account. |
In all the circumstances, I would enter judgment for the plaintiffs as follows:
that this court doth declare that the agreement made between the plaintiff of the one part and the first defendant of the other part constituted an agreement binding upon the second and the third defendants;
that upon payment of the balance of the purchase price, less real property gains tax (if any), into court within 14 days from date hereof by the plaintiff, the agreement be specifically performed and carried into execution by the second and the third defendants executing a valid and registrable transfer of the disputed property free from all encumbrances to the plaintiff or her nominee and failing their doing so, then the senior assistant registrar of this court be authorized to do so on their behalf;
that upon payment of the balance of the purchase price as aforesaid, the second and the third defendants do deliver or cause to be delivered to the plaintiff or her solicitors the issue document of title relating to the disputed property;
that the costs of this action be paid by the defendants to the plaintiff.
Cases
Kannappa Chettiar v Poosathurai [1920] AIR 1 PC 65; National Westminster Bank v Morgan [1985] 1 All ER 821; Bank of Montreal v Stuart [1911] 1 AC 120; Poosathurai v Kannappa Chettiar [1919] 1 LR 47; Ind App 1; Ormes v Beadle [1860] 2 Giff 166; Bank of Credit & Commerce v Aboody [1989] 2 WLR 9; Nadefinco Ltd v Kevin Corp Sdn Bhd [1978] 2 MLJ 59; Loh Wai Lian v Sea Housing Corp Sdn Bhd [1984] 2 MLJ 280; Read v Brown (1888) 2 QBD 128; Reeves v Butcher [1891] 2 QB 509; Gibbs v Guild (1881) 8 QBD 296; Bolo v Koklan [1930] AIR PC 270; Nasr v Mesah [1971] 1 MLJ 32; Hajjah Mek Hussain v Ahmad Hussin [1973] 1 MLJ 18; Ng Moh v Tan Bok Kim [1969] 1 MLJ 46; Lek v Mathews [1926] 25 LI L Rep 525
Legislations
Contracts Act 1974: s.16
Limitation Act: s. 6, s. 9
Representations
Darshan Singh Khairu for the plaintiff.
SF Ho for the first defendant.
BH Tan for the second and third defendants.
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