Judgment

M.T. Chang FJ

(delivering the judgment of the Court)

1. This appeal is from the dismissal by the High Court at Ipoh (Abdoolcader J) of a claim for specific performance of an oral agreement of sale of a house which the appellant was at all relevant times occupying as a tenant of the first and second respondents (the houseowners).

2. The issues raised were clearly issues of pure facts and indeed, the appellant’s then counsel in framing the issues in the case admitted so. In his view, with which the defendants’ counsel and the court agreed, the appellant must establish, on a balance of probabilities, the existence of an oral agreement of sale which is legally binding on the parties and since the premises had been sold, whether the third defendant, the subsequent purchaser of the premises, had notice of prior sale to the appellant. Counsel conceded that if he failed to establish the existence of the oral agreement of sale, the appellant would lose his whole case.

3. The allegations on which the appellant based his claim were given in his statement of claim as the payment of a deposit of $1000 during 1973, in consideration of the houseowners’ agreement to sell the premises to him for $46,000. He did not allege any date set for completion. In consideration of this promise, he expended some $50,000 on the premises for the business of a restaurant and coffee-shop. In May 1976, he learnt from the third respondent that the house-owners were about to sell the premises to him. He then advised the intended purchaser of his prior claim. When the houseowners notified him of this sale in August 1976, he took action. He claimed he was ready able and willing to complete, but he did not say when.

4. His statement of claim stood unamended at all times. No further and better particulars were sought from him, but in taking advantage of the vagueness of his statement of claim to roam at large, he fell into the not unusual error of departing seriously from his pleadings, when he came to give evidence, with serious consequences to his credibility.

5. If we do not now refer to the evidence in any detail, it is only because the trial judge had done so in as detailed and critical examination of the entire case as it has been our pleasure to read. But briefly, the trial judge found that the appellant had repeatedly changed his evidence as to tie dates of the tenancy or of the offer to sell the premises to him, whether the oral agreement to sell the premises to him was made with the houseowners or with one Ah Pin and whether the renovations to the premises were made before or after the agreement to sell. The trial judge also noted the uncertainty about the receipt for the deposit of $1000 alleged to have been paid and observed that this receipt now said to have been conveniently lost was never mentioned in the appellant’s affidavit of documents as having been previously in his possession. The trial judge thought, in our view, entirely correctly, that the onus of establishing the part played by Ah Pin which the appellant relied on in proof of the oral agreement of sale was on the appellant and his failure to call Ah Pin raised an adverse inference against him, under the provisions of s 114(g) Evidence Act 1950. As too, his failure to obtain the evidence de bene esse or on commission of one Mohamed whom he said was present when he was asked by the first respondent whether he wished to buy the premises and he had replied he did and who had gone to India. The appellant also conceded that he had at no time the means to complete.

6. The trial judge heard the appellant and his witnesses with patience and after a detailed analysis of their evidence, he was of the opinion that the appellant was as evasive and unreliable a witness as one could find and his two witnesses were no better.

7. By contrast, he found the houseowners reliable witnesses and he accepted their evidence as well as that of the third respondent, that no offer was ever made to sell the premises to the appellant, no authority was given for the renovations and no advice was given to the appellant of the proposed sale to the third respondent.

8. The submissions to him were only on the evidence, with one exception, a reference to s 26 of the Specific Relief Act, 1950 and Ong Chat Pang v Valliappa [1971] 1 MLJ 224 which is a case dealing with the principle of a bona fide purchaser for value without notice of an earlier contract and which, coming from counsel for the appellant, could only be relevant if he had first established the prior contract. The trial judge treated the case, therefore, as he was advised by counsel to do so, almost entirely as a case involving evidence and the proof of facts. On the whole of the evidence, he was of the opinion that the appellant had failed to establish any oral agreement of sale or the payment of the deposit of $1000. His findings are therefore of pure facts.

9. In such circumstances, it ought not to be and it is not the practice of this court as an appellate court, to differ. We must heed what Lord Russell of Killowen said in Oh Hiam v Tham Kong [1980] 2 MLJ 159:

   .... The Federal Court .... sought to analyse the Notes of Evidence, arriving at a diametrically opposite view to that taken by the trial judge on which evidence should be accepted. This approach in an appellate court is on general principle very rarely acceptable, as has more than once been said by the Board, notably recently in Chow Yee Wah v Choo Ah Pat [1978] 2 MLJ 41 .

   We did so, among others, in S Soonaratnam v S Ramalingam [1981] 1 MLJ 24.

10. It is perhaps in the realisation that we will refuse to differ from the trial judge, especially where there is, as in this case, an abundance of evidence on a critical analysis thereof, for the findings, that Mr JR Devadas, who appeared as counsel at the appeal, prefaced his appeal with a motion to amend the statement of claim. We heard Mr Devadas at length but very obviously, the terms of the amendment merely sought to comply with the rules of pleadings and to avoid the criticism of the evidence departing from the pleadings but they could not and did not explain the numerous variations and resilements in the appellant’s oral evidence which branded him in the view of the trial judge as a totally unreliable witness. The appellant could not therefore hope to succeed on these amendments, if allowed, and for this reason, the motion must be and was refused: Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 following Curran v William Neill & Sons (St Helens) Ltd [1961] 3 All ER 108. We observed, not without interest that Mr Devadas pleaded, in as many words, for a new trial. That was obviously the real purpose for the amendments sought, but nothing is clearer than that the appellant should not be given a further chance to prevaricate.

11. We had no difficulty in dismissing the appeal and we did so, without calling on counsel for the respondents to reply. The appellant was ordered to pay the costs of the appeal.

Judgment below

Abdoolcader J

12. The plaintiff claims in these proceedings specific performance of an oral agreement allegedly entered into with the first and second defendants for the sale to him of the premises known as 1 Alma Bakar Road, Batu Gajah (‘the premises’), and further and in the alternative damages against them, and as against the third defendant he seeks an order to cancel the transfer of the premises executed in his favour by the first and second defendants.

13. At the outset counsel on both sides agreed that two issues arise for determination, namely,

    1. whether there was a legally binding contract between the plaintiff and the first and second defendants, and

    2. whether the third defendant had notice of this alleged agreement and, if so, at what stage.

    It was common ground that if the plaintiff loses on the first issue then he must fail in toto, and that if he succeeds thereon but loses on the second issue then he is only to be entitled to damages. Both sides agreed that both issues involve pure questions of fact and indeed counsel for the plaintiff in his submission conceded that the whole case depends on the court accepting the oral evidence of the plaintiff and his two witnesses. No doubt because pure questions of fact were involved counsel for the plaintiff in his opening address stated that both sides had agreed to leave the question of damages until after the determination of the two issues in question, and he therefore did not propose to adduce evidence in respect of damages until then.

14. At the conclusion of the case, in assessing the evidence adduced and making findings of fact, I delivered an extemporaneous judgment at some length and dismissed the plaintiff’s claim with costs. The plaintiff, who I presume has the benefit of competent advice, has now lodged an appeal against that decision and I now therefore reduce into writing the oral judgment which I delivered in court and would add immediately that every word of what appears hereafter repeats what I said in my oral judgment.

15. Before I proceed to consider the evidence, I must deal with the question of what I consider to be serious departures from the plaintiff’s pleading in relation to the evidence adduced. I should perhaps in this connection refer to the very recent decision of the House of Lords in Farrell v Secretary of State for Defence [1980] 1 WLR 172, 180 in which Lord Edmund-Davies said (at page 180) that to shrug off a criticism as ‘a mere pleading point’ is bad law and bad practice, for the primary purpose of pleadings remains, and it can still prove of vital importance, which is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it.

16. The plaintiff pleads in his statement of claim that during the year 1973 the first and second defendants in consideration of the payment of a deposit of $1,000 agreed to sell the premises to him for a sum of $46,000. But in giving evidence on oath, in answer to a question I put to him, he said that the agreement to purchase the premises for $46,000 was made with one Ah Pin, who I shall advert to later, and that he paid the deposit of $1,000 to Ah Pin. When I referred this bit of evidence to Mr Davidson for the plaintiff in the course of his final address to me, all he could say by way of explanation was that the plaintiff was talking loosely in the language of a layman, and he did not exactly mean what he said as the first and second defendants were present when the plaintiff claims the oral agreement was entered into and Ah Pin’s authority could be assumed by their presence. There is no substance whatsover in this sort of explanation, as I had put to the plaintiff his evidence on what transpired when the alleged oral agreement was supposed to have been entered into and asked him a specific question and this was his answer to me, and the fact that he knew what he was saying is borne out by his going on to add that the first and second defendants were present but no agreement was entered into with them to purchase the premises.

17. The plaintiff then continues in his statement of claim to plead that in reliance on the said verbal agreement and in the expectation of acquiring ownership of the premises, he incurred an expenditure of some $50,000 on extensions and renovations thereto, but in his evidence he said in examination-in-chief that he made the extensions and renovations before the commencement of his tenancy of the premises on 15 July 1972. Under cross-examination he resiled and this time said that the renovations were carried out some two months after the commencement of the tenancy, and they had all been completed by about September 1972. They were therefore certainly not carried out as he pleads in reliance on the alleged oral agreement to purchase the premises which he claims was entered into according to his evidence some two or three months after the beginning of 1973. He also pleads in his statement of claim that he had warned the third defendant not to purchase the premises from the first and second defendants on 30 June 1976 but his evidence shows that the alleged conversations with the third defendant took place in May 1976. If the date was indeed 30 June 1976 as stated in his statement of claim, he could not succeed on the second issue because the transfer by the first and second defendants in favour of the third defendant was executed on 8 June 1976. At a very late stage on the day before the conclusion of these proceedings and in the course of the first defendant giving evidence, Mr Davidson applied to amend the statement of claim by substituting ‘30 June 1976’ in the statement of claim by ‘a date in May 1976’, and I allowed this in the absence of any objection by counsel for the defendants.

18. The plaintiff also pleads in his statement of claim that he is ready, willing and able to complete the purchase of the premises pursuant to the oral agreement he claims was entered into. This, of course, is a necessary prerequisite to any claim or order for specific performance and at the conclusion of his evidence- in-chief he said he still wishes to buy the premises and is in a position to do so. In the course of final submissions I was informed that the alleged balance purchase price in the sum of $45,000 had not been deposited in court. I then asked Mr Davidson whether the plaintiff was indeed ready, willing and able to complete as he claims and after some hesitation he replied that ‘the plaintiff informs me that he has the $45,000 balance purchase price available now.’ I then put this to the plaintiff through the court interpreter and he at first answered in the affirmative but then went on to say that he has $20,000 in the bank, and there is of course only his word as to this, and that he will make efforts to raise the balance of $25,000. I cannot therefore see that he has indeed shown his readiness and ability to complete as he claims in the event that he succeeds in establishing the oral agreement he relies on. Now this point alone and that also in relation to his admission that he entered into the agreement with Ah Pin and not with the first and second defendants would suffice to put him out of court, but there is much more to come.

19. Turning now to the evidence, the plaintiff’s version is that in about June 1972 which he later changed to July, he saw Ah Pin about renting the premises as he wanted to open a restaurant business. It would appear from the evidence that Ah Pin was the developer of the row of shophouses in Alma Bakar Road which includes the premises, and I think it is clear from the evidence of the first and second defendants that Ah Pin is in fact their brother-in-law Cheng Lam Peng also known as Ah Peng. Since this Ah Pin plays an important role in the negotiations and transaction the plaintiff said he entered into, I should perhaps at this stage touch upon the fact that he was not called as a witness. In answer to a question put by me the plaintiff admitted that Ah Pin is available and that he knows where he is but he had not issued a subpoena to him to attend court. Mr Davidson in his concluding address said that the reason why Ah Pin was not called was because, as he put it, ‘we assumed he would support the defendants’. I must say immediately that it was not for anyone to assume anything of the sort. It is for the court to determine the credit and credibility of a witness and in the event that he was called the plaintiff would have the full protection of the provisions of the Evidence Act, 1950 and in particular s 154 which would enable a party to apply for and obtain leave to cross-examine his own witness. In the circumstances, it would appear to me essential for the plaintiff to have called Ah Pin as a witness to discharge the burden of proof on him under ss 101, 102 and 103 of the Evidence Act and establish his case and in particular to show that Ah Pin had authority to act for and on behalf of the first and second defendants in the transaction in issue and as a result of his failure to do so without any plausible excuse or justification I cannot but apply the full force and vigour of the presumption under illustration (g) to s 114 of the Evidence Act against the plaintiff.

20. Reverting to the evidence of the plaintiff, he said that he arranged for the tenancy of the premises from Ah Pin with effect from 15 July 1972 at a monthly rent of $280. He averred that Ah Pin was then anxious to sell the premises and not rent it out but the plaintiff told him that he would discuss the question of purchasing the premises after one year whereupon Ah Pin agreed to rent out the premises to him. He went on to say that when he first discussed the question of tenancy Ah Pin agreed to sell the premises to him for $42,000 and said that if the plaintiff did not buy the premises after one year the rent would be increased by $5. He then said that he made some alterations by way of extension and renovations to the premises before the commencement of the tenancy and obtained Ah Pin’s consent and permission from the Town Board therefor. As I have said earlier, under cross-examination he changed his story and said that the renovations were carried out after the commencement of the tenancy and completed by about September 1972, and he further agreed in cross-examination that he did not put terrazo flooring on the ground floor as he had said in his evidence-in-chief but only had marble put on the walls in compliance with the requirements of the Town Board for an eating-shop. Both the first and second defendants who owned the premises denied signing any plans for the alterations made to the premises and the plaintiff produced no evidence whatsoever from the Town Board in connection with the alterations effected nor any plans signed by the owners which must necessarily be a prerequisite for approval by the Town Board.

21. The plaintiff said that a Town Board official, Ah Pin and the first and second defendants came to the premises sometime in July 1972 after the commencement of the tenancy after he had written to the Town Board for permission. He said that the first defendant asked him whether he really wanted to buy the building and he replied in the affirmative and told him that he would buy the building after one year. He then said they discussed the price and then resiled to say the price was not discussed on that day but only sometime in 1973. The plaintiff did not say that at this meeting his witness, Mat Daud bin Ahmad (PW3), and a Mohamed who it appears is now in India but whose evidence could have been obtained de bene esseor on commission but was not, were present. But PW3 who said that in the company of Mohamed he first met the plaintiff on that day and was conveniently present at this meeting gave evidence which differed in material aspects from that of the plaintiff. PW3 said that at that time renovation was still going on in the shop whereas the plaintiff had said he was asked to point out the works to be done. PW3 also said in his evidence that the plaintiff had told the first defendant that he would buy the shop if he could break down the three rooms and the latter agreed to this but the plaintiff said nothing to this effect.

22. Adverting now to the evidence on the oral agreement allegedly made, the plaintiff said this was in 1973 but he could not remember the month and could only say that it was two or three months after the beginning of the year. He said that a discussion took place in the premises between him and Ah Pin and the first and second defendants and there were also present PW3, AK Mohamed whom I have already referred to and a Syed Mohamed who he said has since died. Briefly, his evidence was to the effect that Ah Pin and the first and second defendants asked for $48,000 as the purchase price and the plaintiff and his three friends requested a reduction, and after some discussion the first and second defendants and Ah Pin agreed to sell the premises for $46,000. He went on to say they asked for $4,000 as a deposit and he paid $1,000 in cash to Ah Pin and promised to pay the balance of $3,000 in two months’ time. Ah Pin then gave him a receipt for $1,000 and he said in answer to me that he had lost the receipt. He then went on to say that he kept the receipt in his shop in Temoh but there was a theft in his shop and he lost the receipt and that he had made a police report about the theft.

23. Under cross-examination, his version about how the oral agreement was arrived at took a different turn. He said that in July 1972 he had an agreement with Ah Pin to purchase the premises for $42,000 but this agreement was cancelled by the second agreement in 1973. He then said that three or four days before he paid the $1,000 deposit in 1973 he discussed with Ah Pin and the first and second defendants the sale of the premises and he had told them he would pay $18,000 as the first payment for the premises towards the purchase price of $46,000 and then resiled to say that the purchase price was not determined on that day. He then said that Ah Pin and the first and second defendants agreed to his paying $18,000 as a first payment, and three or four days later he agreed to pay $4,000 out of the $18,000 which was to be paid towards the purchase price of $46,000. He then said that when he agreed to pay $18,000 the purchase price was $48,000 and then added: ‘On that day I did not agree to the $48,000’, whatever that meant. He continued by saying, all under cross-examination, that after payment of the $1,000 there were further negotiations with Ah Pin 10 or 15 days later but there was no subsequent change in the agreed purchase price of $46,000. All this appears quite inconsistent with his evidence-in-chief on the oral agreement which he seeks to establish. And then, as I have already stated, in answer to me, he said his agreement to purchase the premises for $46,000 was made with Ah Pin and not with the first and second defendants.

24. On the question of the $1,000 deposit the plaintiff says he had paid and the receipt he obtained therefor, he said that he gave the money to Ah Pin and obtained a receipt from him. Under cross-examination, he said Ah Pin wrote the receipt which stated: ‘I received $1,000 from Alwee’ and it was signed by Ah Pin. He then had to admit that it was written in Chinese characters and the $1,000 was written in figures and he just presumed that what was written was to the effect he had earlier stated. His witness, PW3 who was again conveniently present when this transaction was supposed to have taken place when he visited the plaintiff only a second time, sought to corroborate the plaintiff’s evidence on what transpired on this occasion. He however said that the plaintiff took out some money and handed it to the first defendant and asked for a receipt whereupon the first defendant wrote out the actual receipt on a piece of paper. Under cross-examination, he was asked whether he was certain that it was the first defendant and not anyone else who had written the receipt and handed it to the plaintiff and he replied emphatically that he was indeed certain. Here then is a vital discrepancy in the evidence of the plaintiff and his own supporting witness which must necessarily throw considerable doubt on what actually occurred on that day.

25. With regard to the receipt which the plaintiff says was lost, it would appear that he was either making allegations of gross negligence against his solicitors, which, of course, is a matter between them, or he was clearly indulging in a patent lie. If indeed there was a receipt but which he no longer has, it is astounding, to say the least, that this was not disclosed when he made discovery in his affidavit of documents as indeed he should have by stating on oath that he had but does not now have in his possession this receipt by reason of its having been lost. Not only that but what is more, in his affidavit of documents filed in these proceedings he states on oath that according to the best of his knowledge, information and belief he does not have now and never had in his possession, custody or power, or in that of anyone else any other document whatsoever relating to the matter in question in this suit other than the documents set out in the schedules thereto and no mention is made of this receipt he spoke of. He does not disclose this receipt in his statement of claim nor in his application for a caveat against the property in question dated 16 July 1976 nor again in a letter he wrote on 14 August 1976 to the Registrar of Titles, Perak.

26. The police report he said he had made about the theft in his shop in Temoh as a result of which he lost the receipt was not produced. It would have been interesting to see if this report could have substantiated his story about the receipt. When I mentioned this matter of the police report not being produced in the course of delivering oral judgment at the conclusion of the case, the plaintiff interrupted through the court interpreter to say that he had handed the police report to his lawyer. That may be so, and that again is a matter between them, but I cannot see why the police report was not put in if there was one and it was of any probative value for the purposes of the plaintiff’s case. Under cross-examination, the plaintiff said he lost the receipt for $1,000 in 1975 and then retracted this to say he could not remember whether it was in 1975, although according to him he had a police report which would have specified the date of the loss if true.

27. Under cross-examination, the plaintiff admitted that he keeps accounts for his business and records therein all monetary transactions, that the payment of the $1,000 was entered in his accounts and that he still has the account book where this item is recorded. He went on to say that he did not verify the date of payment of the $1,000 from his account book because he had forgotten about that and added that he had informed his lawyer about this entry in the account book. The account book was not produced and it is not even mentioned in making discovery in his affidavit of documents. It is absolutely inconceivable that if his solicitors knew about this entry in the account book they would not have produced or disclosed it in his affidavit of documents. Once again, I must say that the plaintiff is either alleging crass negligence against his solicitors or is clearly lying in a blatant attempt to substantiate his case. If there was any omission in this respect, and I really cannot see how there could have been any in respect of such crucial corroborative evidence, there was ample opportunity for the account book to have been produced in court at the adjourned hearing which was necessitated by the absence of one of the plaintiff’s witnesses or even at any other stage of the proceedings by an application for this purpose in order to ensure that justice is done. I am therefore presented only with the wholly unsubstantiated allegation made on behalf of the plaintiff without the production of what I would consider to be a vital piece of documentary evidence to corroborate his claim.

28. The statutory evidential presumption I have already dealt with in relation to Ah Pin must accordingly be equally applied against the plaintiff in respect of the documents I have referred to but which were not produced by him or referred to in discovery of documents.

29. The plaintiff took no steps to enter into a written contract or lodge a caveat against the property until July 1976 some three years after the alleged payment of $1,000. He took no steps to protect his interest and on his own evidence he had to pay another $3,000 being the balance of the agreed deposit of $4,000 in two months’ time but said that he did not pay this balance, and saw Ah Pin only once about paying the balance and then said that he made another two or three attempts to make payment to Ah Pin, on each occasion in front of his shop on the roadside but he was told by Ah Pin to wait. He made no formal tender of the alleged balance to the first and second defendants. This is certainly not the conduct one would expect in the circumstances of a person claiming to be endowed with enforceable contractual rights.

30. The plaintiff through a solicitor applied for the entry of a private caveat against the property by an application dated 16 July 1976 and in setting out the grounds of his claim therein stated that at the time of renting the premises the first and second defendants who were the owners agreed to give him the first choice if they decided to sell the house, and the price was $46,000. This averment is no more than an allegation of an option without any consideration and, in answer to me, he admitted that this averment was untrue. It must be borne in mind that his application for a caveat embodying, inter alia, this averment which he now admits is false was verified by a statutory declaration in compliance with the provisions of s 323 of the National Land Code. He did not mention in his application for a caveat an alleged agreement to purchase the premises for $46,000 and that he had paid $1,000 as a deposit therefor and said that this was because he did not have the receipt. He then said that at the time of applying for the caveat he was in distress and might have forgotten to inform the lawyer about it, then retracted this and said that he did inform his lawyer that he had an agreement to purchase the premises for $46,000. Here again is another veiled allegation of negligence or whatever against another solicitor.

31. On 14 August 1976 the plaintiff, out of pique, it would appear, wrote to the Registrar of Titles, Perak, with carbon copies to the Controller (sic) of Income Tax, Ipoh, and the State Valuation Officer, Ipoh, to inform them of the sale of the premises to the third defendant for $49,000 and stating that he was surprised that the consideration stated was that amount as he had offered to purchase the premises for $70,000. He then went on to say in that letter that he understood the premises were in fact sold for $80,000, that he was most surprised to note that it was valued at $49,000 by the authorities concerned and he presumed the purchaser had paid the extra $40,000 under the counter to avoid income tax. He said under cross-examination that this letter was sent through his lawyer’s office and then went to explain that his lawyer’s office typed this letter and gave it to him, and he posted it. No mention is made in this letter of his agreement to purchase the premises for $46,000 or that he had paid $1,000 as a deposit as he alleges. He said under cross-examination that he did not offer to purchase the premises for $70,000 but that he intended to pay $70,000 but did not tell this to Ah Pin or the first and second defendants, whatever he meant by this. The transfer executed by the first and second defendants in favour of the third defendant clearly shows that the stated consideration of $49,000 was accepted and certified by the Stamp Office as the correct and adequate value. In answer to me, the plaintiff said that his lawyer’s clerk wrote this letter for him, that he is a public-spirited citizen and he wrote this letter alleging evasion of stamp duty and income tax in the hope that the defendants would get into trouble. When asked where he got the information that the third defendant had purchased the premises for $80,000 he said that he got this from some people but was unable to say who informed him.

32. I found the plaintiff to be as evasive and as unreliable a witness as one can find, and the two witnesses he called in support of his testimony were no better. Abdullah Kunjali Kutty (PW2) who runs a restaurant in Ipoh said that in about May 1976 he went all the way to the premises in Batu Gajah to meet the plaintiff to enquire whether it was true his shop building was to be sold. Under cross-examination, he said he heard from the public in Ipoh about this and as a result rushed up to Batu Gajah to make sure but could not say from which particular person he had heard this. He then went with the plaintiff to the third defendant’s shop and this evidence was to substantiate the plaintiff’s evidence of his second visit to the third defendant. He said that after seeing the third defendant he and the plaintiff went to a stall in the market where they met the first defendant. In answer to me, PW2 said that he could not remember the date when he saw the first and third defendants, that it was the first time he had seen them but only saw them again in court and can recognise them. He did not impress me as being reliable, appeared shifty in giving evidence and it just sounded far from convincing that he should make this trip or rather to use his own words ‘rushed up to Batu Gajah’ all the way from Ipoh to enquire from the plaintiff on a matter which was no concern of his and then be available as a witness to substantiate the plaintiff’s evidence of his visit to the third defendant.

33. As for PW3 who lives in Teluk Anson, he admitted that he had visited the plaintiff at the premises in Batu Gajah only on three occasions, that he did not know the plaintiff until the first visit in the company of Mohamed and that all his visits were casual and not prearranged, and that it was merely by coincidence that he happened to go to the plaintiffs shop and be conveniently present at the crucial times in 1972, when he related the discussion with the first and second defendants and two others, in 1973 when the alleged oral agreement was entered into, the purchase price determined and the deposit of $1,000 paid, and sometime in 1976 when he accompanied the plaintiff to the third defendant’s shop. When I asked him his relationship with the plaintiff it was only after some prevarication that he admitted that he is a good friend of the plaintiff. There are as I have pointed out earlier the differences in his version of what took place in 1972 from that given by the plaintiff and also in relation to the alleged oral agreement entered into in 1973 when he said that the deposit was paid to the first defendant who gave the receipt whereas the plaintiff said it was Ah Pin. I am therefore unable to accept this witness’s evidence at face value or indeed at all.

34. The first and second defendants gave evidence totally denying that they had ever agreed on any occasion to sell the premises to the plaintiff. The first defendant said that he had never seen PW3 before he appeared in court to give evidence. They denied the evidence adduced by and on behalf of the plaintiff of the discussions and negotiations they were alleged to have participated in with regard to the sale of the premises to the plaintiff. They said that they never signed any plans in connection with or authorised alterations to the premises. They knew the premises were rented out to the plaintiff and this was on the recommendation of their brother-in-law Cheng Lam Peng and for the purposes of taking a tenancy the plaintiff went to the first defendant’s tea-store and that was the only time he had ever seen him. The second defendant said that she agreed to the premises being let out to the plaintiff when told about this by the first defendant. I had no reason whatsoever to doubt their testimony and found them to be reliable witnesses; their demeanour in the witness box substantiates this. They were cross-examined somewhat half-heartedly and were not shaken or discredited in any way. In all these circumstances, I cannot find that the plaintiff has established the existence of an oral agreement with the first and second defendants as he alleges for the sale of the premises to him for $46,000 and that he has paid a deposit of $1,000 therefor. I make this finding of course, on a balance of probabilities but must add that the evidence adduced by and for the plaintiff is such that I would come to the same conclusion even if it were permissible, which it is not, to apply the test of a balance of speculative and shifting possibilities.

35. As Mr Davidson himself submitted at the outset, if the plaintiff loses on the first issue then it is quite clear that that would be the end of the matter, and it would not be necessary to proceed to discuss the second issue on the question of whether and if so at what stage the third defendant had notice of the alleged oral agreement which the plaintiff relies on for the sale of the premises to him. I will, however, for good measure briefly touch on this issue.

36. The plaintiff stated in evidence that he saw the third defendant three times in May 1976. On the first occasion he was accompanied by PW3 and the third defendant denied he was going to purchase the premises. That is all he said but PW3 said that he heard the third defendant tell the plaintiff he would not be buying the shop as he did not have enough money. The plaintiff then said that he went again five or six days later to see the third defendant, this time accompanied by PW2, when the third defendant is alleged to have admitted that he was about to purchase the premises. The plaintiff said that the conversation was between him and the third defendant whereas PW2 testified to the effect that it was he who was doing all the talking with the third defendant. The plaintiff went on to say that he met the third defendant again that month for the third time when he went alone and told the third defendant that he had an agreement with the first and second defendants to buy the premises. He then changed his story to say that he had told the third defendant about this on both the first and second occasions as well. Under cross-examination when confronted with his plea in his statement of claim that the third defendant intimated to him that he was about to complete the purchase of the premises on 30 June 1976 all the plaintiff could say was that after the three meetings in May he met the third defendant again on 30 June 1976. It is strange that he could remember this date but could not remember the date or even the month when he is supposed to have paid the deposit of $1,000. 1 think it would be a fair inference that this evidence as to his meeting the third defendant again on 30 June 1976 was clearly put forward to meet the averment regarding that date in the statement of claim, and I have already mentioned the application to amend the statement of claim in this regard at a late stage in the proceedings.

37. The third defendant gave evidence that he had purchased the premises from the first and second defendants and made the first payment to them in the sum of $8,000 by a cheque dated 19 May 1976. The transfer in his favour was executed on 8 June 1976 by the first and second defendants and he had given two other cheques in payment of the balance purchase price, and according to the evidence of the first defendant these two other cheques were post-dated and given before the execution of the transfer. The third defendant denied the evidence of the plaintiff and his witnesses of any visits by the plaintiff to him or that he was warned by him against the purchase of the premises and said that he knew nothing at all about the plaintiff wanting to purchase the premises. Again as with the other defendants I found the third defendant to be a truthful witness and he was not in the least bit shaken in cross-examination. I do not therefore accept the evidence given by the plaintiff and his witnesses in this regard and, in any event, the point is moot as I have already found that there was no oral agreement between the plaintiff and the first and second defendants as he alleges. In the event it becomes unnecessary to consider the application in this case of the provisions of s 26 of the Specific Relief Act, 1950 and the principle enunciated in Ong Chat Pang v Valliappa Chettiar [1971] 1 MLJ 224, 227 (at page 227) with regard to the question of a bona fide purchaser for value without notice of an earlier contract.

38. I think that it is clear that what happened is that the plaintiff on coming to know that the premises had been sold to the third defendant realised that he stood to lose substantially if evicted as he had spent some moneys in making alterations to the premises for the purposes of meeting the requirements of the Town Board for an eating-shop and in an effort to overcome this difficulty he has made a frantic attempt to retain his hold on the premises by making the allegation that he has some form of agreement with the first and second defendants to purchase the premises. This is borne out by his evidence that when he went to see the third defendant on the third occasion he told the latter that his family was staying in the upstairs portion of the building and that he had no other place to go and requested him not to purchase the building, and, further, in answer to me, he said that his primary fear was eviction by the third defendant from the premises. I should perhaps also add that he went on to say that he did not take more active and earlier steps to protect his rights in the matter of the alleged agreement to purchase because he was busy in running his business – a statement which, in my view, surpasses credulity.

39. For the reasons stated, I dismissed the plaintiff’s claim with costs, discharged the order of 30 August 1976 restraining the Registrar of Titles from registering the transfer of the premises in favour of the third defendant and ordered an enquiry as to the damages suffered by the third defendant as a result of that order on the plaintiff’s undertaking as to damages.

Cases

Ong Chat Pang v Valliappa [1971] 1 MLJ 224

Oh Hiam v Tham Kong [1980] 2 MLJ 159

Chow Yee Wah v Choo Ah Pat [1978] 2 MLJ 41

S Soonaratnam v S Ramalingam [1981] 1 MLJ 24

Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229

Curran v William Neill & Sons (St Helens) Ltd [1961] 3 All ER 108

Representations

JR Devadas (Paramjit Singh with him) for the appellant.

Colin Clark for the respondent.

Notes:-

This decision is also reported at [1981] 2 MLJ 82.