ABDA Airfreight Sdn Bhd

- vs -

Malaysia Airline System Bhd

Judgment[a]

Abdul Malik Ishak, J

1. The plaintiff, ABDA Airfreight Sdn Bhd, was and is at all material times, a freight forwarding and cargo handling company ("ABDA"), while the defendant, was and is our national flag carrier ("MAS").

2. By way of a sales agency agreement dated September 28, 1995, ABDA entered into an agreement with MAS which appeared to be mutually beneficial. The agreement between ABDA and MAS was in regard to the "Uplift of Unaccompanied Baggage" dated November 22, 1995 ("agreement"[1]). This agreement was short-lived. Three months thereafter, the agreement was brought to an end by MAS, notwithstanding the fact that both parties mutually enjoyed the benefits that had accrued. The termination took place on March 16, 1996.

3. The learned counsel for MAS, Mr. Saranjit Singh, aptly described the demise of the agreement as timely "before extensive and irreparable damage could have been inflicted onto our National Airline and to our national pride in general."

   (A) ABDA Baggage Service

4. Under the agreement, ABDA proposed and invited MAS to become partners of a special product known as "ABDA Baggage Service". This special product was distinct and independent from the services envisaged under the sales agency agreement.[2]

5. Pure and simple, the ABDA Baggage Service involved the carriage of passengers' excess baggage as "unaccompanied baggage" from the port of departure but discharged, unloaded and off-loaded at the port of destination as "accompanied baggage." It was a scheme that was so well designed that even MAS was convinced that it was a good business venture. But alas, there were many pitfalls that jolted MAS to the realities of the harsh business world. For starters, the actual status of the baggage was altered by an act of deliberate suppression and withholding of two very important documents:

   1. the air way bill and

   2. the cargo manifest.

   These two crucial and key documents gave the baggage the status of "unaccompanied baggage" and, consequently, considered as "cargo" for all intents and purposes. The suppression of these two documents brought with it dire consequences.

   (B) The Problems With ABDA Baggage Service

6. The life span of the agreement was slightly more than two months. Towards the end of February 1996 problems surfaced. MAS handling agents in Madras namely, Air India, began raising queries as to why containers carrying baggage recorded in a cargo manifest and registered as "cargo" in the compartment planning message (CPM) were being discharged at the passenger arrival hall instead of at the cargo complex where cargo including "unaccompanied baggage" ought to be discharged. Indian customs officers were curious and they began questioning the propriety of using ABDA baggage tags on baggage rather than using MAS baggage tags. It must be borne in mind that MAS baggage tags for accompanied baggage form part and parcel of MAS airline ticket after the passengers have checked in. The incessant queries by the Indian customs officers excited MAS officials in Madras. That started a chain link reaction. The MAS officials in Madras, without further ado and acting prudently, alerted Kuala Lumpur officials of these irregularities. It appeared that these irregularities contravened the Indian customs laws and regulations.

7. Acting prudently, MAS swiftly suspended operations under the agreement in order to conduct further investigations. ABDA through one gentleman by the name of Mr. Jainula Abutheen Abdul Kapur ("Jainula") was, in due course, informed of the pressing problems that needed to be addressed urgently. These problems were centred on:

   1. the propriety of discharging "unaccompanied baggage" at the passenger arrival hall in Madras;

   2. the use of ABDA baggage tags which were virtually similar to the baggage tags used by MAS; and

   3. the check in counter of "ABDA Baggage Sdn Bhd" - an associate company of ABDA, at the departure lounge of the Subang International airport had caused undue confusion.

8. ABDA dragged its feet and the problems remained unresolved. MAS had no choice but to terminate forthwith the agreement on March 16, 1996.

   2. THE LEGAL ACTION

9. ABDA filed a writ of summons and sought

   1. special damages to the tune of RM365,224.88;

   2. general damages consequent upon the damage to its image and reputation;

   3. interest at the rate of 8% per year from the date of filing of the writ to the date of full settlement;

   4. costs; and

   5. any other relief which this Honourable court deems fit and fair.

10. In its statement of defence, MAS pleaded, inter alia, the following lines of defence:

    (1)	the delivery by the Plaintiff (ABDA) of the unaccompanied baggage as cargo through the passenger terminal at the destinations would and is violative of customs regulation(s) and that the plaintiff had not obtained the requisite clearances from the relevant authorities for the same;
    (2)	that the "baggage tags" used by the plaintiff (ABDA) on the said cargo which were delivered at the passenger terminal were visually similar to (the) baggage tags placed by the defendant (MAS) on accompanied baggage of its passengers who are disembarking at the said destinations and that this would be confusing and misleading to the passengers and the relevant authorities;
    (3)	that at the unaccompanied baggage counter of the plaintiff (ABDA) and its associate "ABDA Baggage Sdn Bhd" at the airport passenger terminal, the logo of the defendant's company (MAS) was improperly and unauthorisedly displayed which could mislead the public into believing that the plaintiff (ABDA) and its associate company "ABDA Baggage Sdn Bhd" were the agents of the defendant (MAS) for dealing in unaccompanied baggage, which was not the case; and
    (4)	the abovementioned matters were brought to the notice of the plaintiff's company (ABDA) who did not provide any suitable explanation nor take any steps to rectify the same.

11. With regard to the third line of defence, the photograph at p 43 of the bundle of documents (marked as Exh "D12") is a sight to behold. That photograph conveyed the message that ABDA and its associate company by the name "ABDA Baggage Sdn Bhd" were the agents of MAS in dealing with unaccompanied baggage. This message was hotly disputed by MAS.

    3. CERTAIN BASIC EVIDENCE

12. Certain basic pieces of evidence must be put in the forefront and emphasis should be made on them. For brevity, they may be listed in the following fashions.

    I

13. It was entirely ABDA's idea to transport and uplift excess baggage as "unaccompanied baggage" to be carried by MAS from Kuala Lumpur to Madras where the collection would be made at the arrival hall conveyer belt. Jainula's witness statement tells a tale of its own. Question 9 of his statement was worded in this way:

    What is the difference between the services provided by the plaintiff with respect to unaccompanied baggage compared with other freight forwarders?

    His answer was framed in this way:

    Under a special arrangement between the respective airlines and the plaintiff (ABDA) our clients' unaccompanied baggage (are) sent on the same flight in which the clients/passengers travel and delivery is through the arrival hall conveyor belt at the airport destination unlike other freight forwarders unaccompanied baggage (are) usually sent on different flights and delivery is through the cargo terminal at the airport of destination. In this respect the service provided by the plaintiff (ABDA) is unique.

14. The notes of evidence indicated to all intents and purposes that ABDA proposed the arrangement of uplifting excess baggage as unaccompanied baggage. Mr. Ong Jyh Jong ("Ong") took the stand for MAS. In his witness statement he explained to the court:

    Sometime towards the end of October 1995, the plaintiffs managing director Mr. Zainal Abidin wrote me a letter thanking me for the renewal of the Agency and proposed a special service which he termed as "ABDA BAGGAGE SERVICE" wherein ABDA would collect excess baggage belonging to passengers on board MH at least a day before the departure, put it in a container and have the same placed on board the aircraft as unaccompanied baggage and upon arrival at the port of destination, arrange for the baggage to be cleared at the passenger arrival hall instead of the cargo terminal.

15. It is pertinent to note that Zainal Abidin's letter was in fact dated October 25, 1995. That letter surely makes for an interesting reading and I shall revert to it from time to time.

    II

16. It can readily be seen in two letters emanating from ABDA - one addressed to Ong dated October 25, 1995 and the other addressed to Tuan Hj Mohamed lbrahim Bahari dated November 30, 1995 - that the purported purpose and objective in transporting or uplifting excess baggage as "unaccompanied baggage" at Kuala Lumpur was simply to:

    1. avoid the delay and hassle at Madras cargo customs; and

    2. utilize the low cargo tariff rates to transport excess baggage as "unaccompanied baggage" rather than as excess baggage where the rates are higher.

    III

17. The mechanisms to put in motion ABDA's proposals were discussed between the officers from ABDA and MAS. Towards this end, operational charts were prepared. The arrangements between the parties may be summarised as follows:

    1. ABDA would collect all excess baggage belonging to customers who are boarding MAS flight a day before take off and load them in containers purchased by ABDA. ABDA will issue to their customers baggage tags styled as ABDA baggage tags. All these excess baggage are then loaded in the containers as unaccompanied baggage.

    2. ABDA will cut out an airway bill stipulating the container load together with the corresponding separate cargo manifest evidencing the airway bill containing the "unaccompanied baggage".[3]

       In Ong's witness statement question 12 was worded in this way:

       ..... could you please explain to the court the workings or the operation of this arrangement as agreed between the parties?

       And the answer was worded in this way:

       (i)	Firstly ABDA will collect all excess baggage from its customers on board MH flight at least a day before take off and load these baggage in a container arranged by themselves as Unaccompanied Baggage.
       (ii)	ABDA will then pay MAS a minimum charge of RM1100 which is the rate for the pivot weight of 550 kg per container, whether or not the weight of the container is 550 kg. Any excess weight above 550 kg will be charged RM2.00 per kg.
       (iii)	(a)	Thereafter ABDA will prepare an Airway Bill listing all their customers' baggage together with a corresponding separate Cargo Manifest evidencing the Airway Bill containing the unaccompanied baggage.
       	(b)	These documents will be presented by ABDA to the Malaysian Cargo Customs for examination and approval of the listed and specified Cargo.
       (iv)	These containers are then sent through Loadsheet control where the containers are then sealed and marked as "Category O" to indicate that the container is assigned for this special service. This step is also monitored by ABDA.
       (v)	At the Port of Destination for example in Madras, our handling agents will deliver the container, upon off-loading of the particular container to the Passenger Arrival Hall instead of the Cargo Terminal.

    3. The airway bill and the cargo manifest will be presented by ABDA to the Malaysian cargo customs for examination; and upon approval thereof ABDA will pay the usual cargo rates.

    4. The loadsheet department created a special category "O" for "unaccompanied baggage". The container that carried the unaccompanied baggage was declared to the Malaysian cargo custom as such but it will be referred merely as "baggage" in the compartment planning message (CPM) and marked as category "O" against the "unaccompanied baggage". The cargo handlers in Madras will refer to the CPM in order to identify the goods in question. Penial Kantharay Lazarus ("Penial") an airport manager of MAS attached to Chennai Airport, Madras, India took the stand. Under cross-examination, Penial testified to the following:

       Q	I suggest to you that because it has been listed under category 'O' by MAS, the unique arrangement by the plaintiff caused MAS to categorise it as 'O'.
       A	Yes, YA but the CPM has got some standard codes namely 'C' for cargo, 'B' for baggage, 'M' for Mail which the CPM copied to all our handling agents. Category 'O' which something that they would not know. It is unique to MAS. But we have to explain to the handling agent why it is marked as 'O'. CPM meant Compartment Planning Message.
       Q	In your witness statement ...., you stated that you did not know the meaning of category 'O' and I ask you now? If you did not know of category 'O', did you clarify with your area manager or even with the plaintiffs managing director i.e. Jainula?
       A	No, I did not contact Jainula, but I contacted the area manager who explained that category 'O' meant for other baggage.

       Ong wrote a memorandum to the area managers of South India, North India and Pakistan. That memorandum was dated November 22, 1995 and it was worded in this way:

       ABDA AIRFREIGHT UPLIFT OF UNACCOMPANIED BAGGAGE KUL-MAA/DEL/KHI MH and ABDA Airfreight have drawn-up a contract to uplift unaccompanied baggage as cargo. Under the arrangement, the containers are sealed and listed under category 'O' in the CPM (Compartment Planning Message). You are required to request our handling agent to discharge the container(s) to the passenger arrival conveyor belt instead of (to) the cargo terminal. MH will not be liable (for) any loss or damage (to) these shipments. Any mishandling should be directed to ABDA Airfreight representative at your respective station. En. Zainal Abidin the Managing Director of ABDA Airfreight will be visiting your station to discuss the operation matters in greater detail. Please extend your cooperation to him to ensure the handling is smooth and efficient. Should you have any enquiries, please refer to Cargo Manager (Orient) for clarification. Regards.

       It would be a correct assertion to make that there was no known category "O" in the airline industry and it was for the purpose of the agreement that category "O" was created by MAS.

    5. The airway bill and the cargo manifest shall not form part of the documentation that would follow the "unaccompanied baggage". These documents will not be sent to Madras at all.

    6. When the container that held the "unaccompanied baggage" reached Madras airport, the container would be opened and it would reveal the "unaccompanied baggage" carrying the ABDA baggage tags but with no airway bill nor cargo manifest because these documents were left behind in Kuala Lumpur. The camouflage was necessary in order to reflect, represent and to give the impression that the container containing the "unaccompanied baggage" should be discharged at the passenger arrival hall at Madras airport rather than at the cargo terminal.

    4. THE TRUE INTENT AND PURPORT OF THE AGREEMENT

18. As I said, it was an agreement dated November 22, 1995 for the purpose of the upliftment of "unaccompanied baggage". The agreement encompassed and adopted in toto the operational conditions.

19. As alluded to earlier, Zainal Abidin's letter dated October 25, 1995 will be referred to from time to time. I must at once say that this letter was very essential and, indeed, important. It gave the perspective of the agreement between ABDA and MAS. A correspondence of this nature must surely be receivable as evidence to show the factual matrix of the whole case. That letter was certainly admissible as evidence and it was addressed to Ong and it was worded in this way:

    PROPOSAL TO PROMOTE DAILY CARGO MOVEMENT KUL/ MADRAS WITH EXCLUSIVE RIGHT FOR ABDA AIRFREIGHT SDN. BHD. With due respect, firstly, please accept our Million Tonne of THANKS and gratitude for the reinstatement of ABDA Airfreight as MAS Cargo Sales Agent. With your new leadership and guidance we are indeed already progressing towards greater achievement in all aspect(s) for (our) mutual benefit. ..... Apart from the above on going business, we are very keen to promote daily cargo movement for sector Kuala Lumpur to Madras. Due to poor belly space utilization on the KUL/MAA pax flights, ABDA Airfreight would like to propose a business partnership in promoting a special "ABDA BAGGAGE SERVICE" to improve the utilization. As we all know promoting Excess Baggage and Unaccompanied Baggage on this sector is most difficult due to the high cost and momental task and hassle at Madras Customs. To overcome this, as well as to rescue a share of this lucrative business, our "ABDA BAGGAGE SERVICE PROGRAM" will undoubtedly encourage passengers to carry more goods during their travel at a very nominal fee. Besides the normal 20 kgs baggage allowance, we shall collect the rest of the baggage at least a day before their departure. ABDA Airfreight would buy up containers for this purpose. All preparation in preparing these containers would be our responsibility. However, with the co-operation of MAS in Madras we anticipate these type(s) of cargoes would be easily and expeditiously cleared through the local customs. We are extremely confident to uplift approximately 5-10 tons of such freight per flight after our six months probationary period. To make this (a) SUCCESS we are committed to advertise through the local media and radio in Malaysia and Singapore. An estimated sum of approximately RM100,000 is set aside for this purpose. We shall also work very closely with the respective MAS Travel Agencies who are active in Madras sector. Hence, these service(s) are only for MAS passengers, (and) it will certainly attract other major airline passengers to travel to Madras only on MAS. In return for our heavy investment and the time taken to develop this product, we humbly request for the EXCLUSIVE RIGHT for the period of at least two years with an extension for another year. We're prepared to pay MAS RM 2.00 per kilo for the first six period of six months (probationary period) and RM3.00 per kilo (which is your market rate) for the rest of the period. We sincerely hope this proposal will meet your kind consideration and approval. Should you need any further clarification, please do contact us. We look forward to your reply as soon as possible to enable us to launch the product by 01 January 1996. Looking forward to a mutually beneficial and fruitful business relationship. Thanking you.

20. This immediately brings to mind the case of Citibank NA v Ooi Boon Leong [1981] 1 MLJ 282, FC, a decision of Raja Azlan Shah CJ (Malaya). There His Lordship aptly said at p 283 of the report:

    It has nowhere been contended that there are other documents and inferentially the guarantee sued on was the legal document containing the terms between the parties and it was executed by the respondents after acceptance by them. It must therefore be a matter for argument whether the said letter is admissible in evidence to determine the existence and the application of the terms of the guarantee having regard to the provisions of ss 91 and 92 of the Evidence Act 1950. We are of the view that the said letter does not fall within the category of negotiations as to be caught by the prohibitory provisions of the Evidence Act but gives factual background which is certainly admissible. As Lord Wilberforce said in Prenn v Simmonds [1971] 3 All ER 237, 241: In my opinion, then evidence of negotiations ... ought not to be received, and evidence should be restricted to evidence of the factual background known to the parties at or before the date of the contract, including evidence of the 'genesis' and objectively the 'aim' of the transaction.

21. Echoing the same sentiments was the case of Keng Huat Film Co Sdn Bhd v Makhanlall (Properties) Pte Ltd [1984] 1 MLJ 243, FC. In that case, Mohamed Azmi FJ at p 247 aptly said that "evidence of surrounding circumstances and factual background have always been admissible."

    (A) The Terminologies

22. The terms "accompanied baggage" and "unaccompanied baggage" have been bandied around by the parties in the course of the trial. It would therefore be ideal, at this juncture, to explain these two terminologies.

    (1) Accompanied baggage

23. It is baggage which must travel with the passenger under a "baggage .. check" and it is widely known among airline travellers as an airline baggage tag. These baggage are called "checked baggage" and the "travel documents" for such baggage will be the "passenger ticket" and the "baggage check". A booklet entitled "General Conditions of Carriage of Malaysian Airline System Bhd for Passengers and Baggage and Cargo" compiled with effect from April 1, 1979 contained pertinent definitions of certain terminologies. In it the following words were defined:

    Baggage	means such articles, effects and other personal property of a passenger as are necessary or appropriate for wear, use, comfort or convenience in connection with his trip. Unless otherwise specified, it shall include both checked and unchecked baggage of the passenger.
    Baggage Check	means those portions of the ticket which provide for the carriage of passenger's checked baggage.
    Baggage Tag	means a document issued by Carrier solely for identification of checked baggage, the baggage (strap) tag portion of which is attached by Carrier to a particular article of checked baggage and the baggage (identification) tag portion of which is given to the passenger.
    Checked Baggage	means baggage of which Carrier takes sole custody and for which Carrier has issued a baggage check.
    Ticket	means the document entitled 'Passenger Ticket and Baggage Check' issued by or on behalf of the Carrier and includes the Conditions of Contract and Notices and the flight and Passenger coupons contained therein.
    Unchecked Baggage	means any baggage of the passenger other than checked baggage.

24. It would also be germane to refer to the Carriage by Air Act 1974, (Act 148) where the First Schedule carried the following legend:

    Section 2 - BAGGAGE CHECK Article 4
    (1)	In respect of the carriage of registered baggage, a baggage check shall be delivered, which, unless combined with or incorporated in a passenger ticket which complies with the provisions of Article 3, paragraph (1), shall contain:
    	(a)	an indication of the places of departure and destination;
    	(b)	if the places of departure and destination are within the territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place;
    	(c)	a notice to the effect that, if the carriage involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers in respect of loss of or damage to baggage.
    (2)	The baggage check shall constitute prima facie evidence of the registration of the baggage and of the conditions of the contract of carriage. The absence, irregularity or loss of the baggage check does not affect the existence or the validity of the contract of carriage which shall, nonetheless, be subject to the rules of this Convention. Nevertheless, if the carrier takes charge of the baggage without a baggage check having been delivered or if the baggage check (unless combined with or incorporated in the passenger ticket which complies with the provisions of Article 3, paragraph (1)(c)) does not include the notice required by paragraph (1)(c) of this Article he shall not be entitled to avail himself of the provisions of Article 22, paragraph (2).

25. Since this case involved air travel to India, it would be ideal to reproduce the Indian version of the Carriage by Air Act, 1972. Under Chapter II of the Indian Carriage by Air Act, 1972, at Part II under category "Luggage ticket", s 4 enacts as follows:

    (1)	For the carriage of luggage, other than small personal objects of which the passenger takes charge himself, the carrier must deliver a luggage ticket.
    (2)	The luggage ticket shall be made out in duplicate, one part for the passenger and the other part for the carrier.
    (3)	The luggage ticket shall contain the following particulars:-
    	(a)	the place and date of issue;
    	(b)	the place of departure and of destination;
    	(c)	the name and address of the carrier or carriers;
    	(d)	the number of the passenger ticket;
    	(e)	a statement that delivery of the luggage will be made to the bearer of the luggage ticket;
    	(f)	the number and weight of the packages;
    	(g)	the amount of the value declared in accordance with Rule 22(2);
    	(h)	a statement that the carriage is subject to the rules relating to liability contained in this Schedule.
    (4)	The absence, irregularity or loss of the luggage ticket does not affect the existence or the validity of the contract of carriage, which shall nonetheless be subject to these rules. Nevertheless if the carrier accepts luggage without a luggage ticket having been delivered, or if the luggage ticket does not contain the particulars set out at (d), (f) and (h) of sub-rule (3), the carrier shall not be entitled to avail himself of those provisions .of this Schedule which exclude or limit his liability.

26. A witness by the name of Kallianpur Gangadharan ("Ganga"), gave a witness statement and at question and answer number 15 his evidence went like this:

    Q.

    How will one distinguish between 'Accompanied Baggage' and 'Unaccompanied Baggage'?

    A.

    'Accompanied Baggage' is checked-in baggage carried under the passengers ticket and under a 'checked-in Baggage-Tag' of the carrier. These items of 'baggage' will be identified by the carrier's Baggage-Tag. The 'Unaccompanied Baggage' is carried under an Airway Bill and should be recorded in the Cargo Manifest of the flight on which it is carried. It will not have the carrier's Baggage Tag. It will have a 'Cargo Label' which will refer to the Airway Bill Number and the number of pieces covered by that Airway Bill of which that particular piece forms a part.

27. Jainula's evidence elicited under cross-examination was worded in this way:

    Q	In accompanied baggage do you need a cargo manifest and airway bill?
    A	No
    Q	These are delivered?
    A	Passengers' arrival hall.

    (2) Unaccompanied baggage

28. Unaccompanied baggage are baggage of passengers who travel under an airway bill and that airway bill is in turn recorded in a cargo manifest. Unaccompanied baggage attain the status of cargo where different tariffs are imposed. Cargo labels would be issued for such baggage. Evidence wise reference should be made to the witness statement of Jainula. The question and answer number 5 would be pertinent:

    Q	What do you mean by unaccompanied baggage?
    A	Each passenger is entitled to a free baggage allowance of 20 kgs. For any baggage in excess of the said 20 kgs the passenger will have to pay a high premium to enable the passenger's excess baggage to be transported on the same flight as the passenger.

29. Under cross-examination, Jainula adverted to the meaning of "unaccompanied baggage." His evidence went like this:

    Q	Unaccompanied baggage. What is the meaning?
    A	Means personal belongings of a passenger and transported as cargo, not necessarily on the same flight with him and it is delivered to the cargo terminal at point of destination.
    Q	How is it normally sent? Do you issue an airway bill?
    A	Yes
    Q	This airway bill is issued by the agent?
    A	Yes
    Q	There will also be a cargo manifest prepared by carrier?
    A	Yes
    Q	How is the unaccompanied baggage delivered?
    A	To the cargo terminal.

    (B) A Sham Agreement

30. In my judgment, there was undisputed evidence that "unaccompanied baggage" would be delivered to the cargo terminal at the port of destination while "accompanied baggage" would be delivered to the passengers' arrival hall. It was also part and parcel of my judgment that the agreement between ABDA and MAS was independent and distinct from the sales agency agreement dated September 28, 1995. When read independently the agreement was nothing more than a mere sham. When read collectively and taken in its correct perspective the agreement was intended to give an appearance of creating between the parties rights and obligations which were different from the actual rights and obligations which the parties intended to create. In this connection, I must refer to the speech of Diplock LJ in Snook v London & West Riding Investments Ltd [1967] 2 QB 786 where at p 802 of the report, His Lordship had this to say of sham transactions:

    As regards the contention of the plaintiff that the transactions between himself, Auto Finance and the defendants were a 'sham,' it is, I think, necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the 'sham' which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities (see Yorkshire Railway Wagon Co v Maclure [1882] 21 ChD 309, CA and Stoneleigh Finance Ltd v Phillips [1965] 2 QB 537), that for acts or documents to be a 'sham', with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.

31. Lim Beng Choon J also applied Snook when his Lordship decided the case of Kuppusamy v Anggamah [1992] 1 MLJ 602. At p 620 of the report. His Lordship rounded up the matter in these words:

    The court in order to determine whether a document or transaction is a sham ought to have regard to all the circumstances - both before and at the time of the execution of the document or creation of the transaction.

32. It must be recalled, in the context of the present case, that the object and intent of the agreement was to consign the excess baggage as unaccompanied baggage flying from Kuala Lumpur to Madras. The status of the excess baggage was altered to accompanied baggage upon arrival at Madras in order to avoid the discharge at the cargo terminal. This manoeuvring was done in this way:

    1. By suppressing and withholding two very important import documents, namely:

       1. airway bill, and

       2. cargo manifest

       from the Madras customs authorities.

    2. By having visually similar ABDA baggage tags with that of MAS baggage tags which led the authorities to assume that the excess baggage were "checked baggage" - meaning baggage with baggage tags; and consequently, by such deception the excess baggage were allowed to be discharged at the passenger arrival hall. It was argued by Mr. Sri Dev Nair, learned counsel for ABDA, that this problem could be "ironed out." But, with respect, since the very purpose of the agreement was to hoodwink the Indian customs authorities, there was no room at all for further negotiations. Pure and simple, the agreement was a sham. There was deception of the Indian customs authorities that could not be "ironed out" at all. There was overwhelming evidence to show that the agreement was nothing more than a mere sham.[4]

33. The sum total of all these evidences would be this: that excess baggage were consigned by ABDA under the guise of it being unaccompanied baggage but the consignment of these excess baggage were being delivered to the passenger arrival hall at Madras under the guise of it being accompanied baggage since the excess baggage were tagged with ABDA baggage tags which were visually similar to the baggage tags used by MAS. Here, when the excess baggage landed on Indian soil, no proper authorised documents were available. This was my judgment and I so hold accordingly.

    5. ABDA's OBLIGATIONS TO ENSURE COMPLIANCE WITH THE LAW

34. MAS's stand was quite clear. At paragraph 4(b) of the statement of defence, MAS categorically stated that:

    the plaintiff (referring to ABDA) shall arrange for the said cargo to be cleared at the destinations through the passenger terminal instead of the cargo terminal and in this connection, all handling of the said cargo and the obtaining of the requisite permissions and clearances from the authorities including the customs shall be undertaken by the plaintiff (referring to ABDA).

35. At paragraph 15 of the statement of defence, MAS put the blame entirely on ABDA:

    Further the defendant (referring to MAS) avers that the plaintiff (referring to ABDA) in not obtaining the requisite permission of the relevant authorities as referred to in paragraph 4 of the statement of defence, are in breach of their obligations and/or implied obligations and consequently this claim against the defendant (referring to MAS) is misconceived and untenable.

36. In simple language, MAS pleaded that ABDA had represented that they would obtain all the requisite permissions and approvals under the agreement. At any rate, it can be implied that ABDA had to fulfil these obligations under the agreement. The operational conditions[5] showed that ABDA had the unenviable task to be "wholly responsible for any discrepancy" in Madras. It was also undisputed and in fact ABDA admitted that it was the shipper and the consignor of every consignment of excess baggage uplifted as unaccompanied baggage under the agreement in Kuala Lumpur. Such admission was amply borne out in Zainal Abidin's letter dated October 25, 1995.

37. It is said that a shipper, just like ABDA, is obliged to comply with all the laws, regulations and customs of the Governments at both the ports of departure and destination. It is an obligation that must be fulfilled.

38. Under the agreement, ABDA knew and was aware that it was obliged to secure all the requisite permissions and approvals at Kuala Lumpur and Madras. Jainula was familiar with Exh "P5"[b]. In that situation, Jainula too must be aware of the contents of Exh "P5" especially under the caption: "Conditions of Carriage" - Cargo, where under Article VI under category of "Consignments In Transit", the side note carried this legend:

    Compliance with Government Requirements.

39. It is appropriate, at this juncture, to reproduce Article VI:

    1.	(a)	The shipper shall comply with all applicable laws, customs and other government regulations of any country to, from, through or over which the cargo may be carried, including those relating to the packing, carriage or delivery of the cargo, and shall furnish such information and attach such documents to the airway bill as may be necessary to comply with such laws and regulations. Carrier shall not be obliged to inquire into the correctness or sufficiency of such information or documents. Carrier shall not be liable to the shipper or any other person for loss or expense due to shipper's failure to comply with this provision.
    	(b)	No liability shall attach to Carrier if Carrier in good faith reasonably determines that what it understands to be the applicable law, government regulations, demand, order or requirement requires that it refuse and it does refuse to carry a consignment.

40. MAS's stand was quite simple. It is that it was ABDA that had breached the agreement. Under cross-examination, Tuan lbrahim Abdullah ("lbrahim"), confirmed that ABDA had breached the agreement. His testimony went like this:

    Q

    I suggest to you that the plaintiff had not breached the agreement.

    A

    No, he has breached the agreement because we (MAS) are only the carriers of passengers and their baggage as well as cargoes. In the case of cargoes it is the duty of the importers to obtain the necessary permits and approvals like that of the passengers who are responsible to ensure that they have valid travel documents and visas. The airline merely provide(s) the transport. However, our concern about asking the plaintiff to show us the approval from Madras customs was because we are equally liable for any fines and we may even have our aircraft impounded for the offence by the Madras authorities.

41. To be fair to ABDA, there was evidence to show that ABDA sought the necessary permissions and approvals from the relevant authorities in Kuala Lumpur - the port of departure. But unfortunately, ABDA did not make any attempt to comply with the Indian laws. There was no evidence to show that ABDA sought the approvals and permissions of the relevant authorities in India-the port of destination. ABDA through Mr. Sri Dev Nair sought to justify the propriety of the agreement by referring to two letters.

42. The first letter was dated April 15, 1996 and it was from the International Civil Aviation Organization ("ICAO") with an address at number 1000 Sherbrooke Street West, Suite 400, Montreal, Quebec, Canada and that letter was worded in this way:

    TO: Mr. Zainal Abidin Abdul Kapur Managing Director Abda Airfreight SDN. BHD. Selangor Darul Ehsan West Malaysia Upliftment of 'unaccompanied baggage' ICAO Annex 9, Standard 4.53 Dear Mr. Zainal Abidin, In response to your fax dated 12 April, the procedure you describe - whereby excess baggage uplifted under air waybill on the same flight as the passenger owner can be cleared in the baggage hall at destination - would be fully consistent with the letter and intent of Annex 9, Standard 4.53. It should be noted that the decision to allow such simplified baggage clearance and delivery is at the discretion of the customs authorities in the destination State. Provided an agreement can be reached with the airline and the customs authorities regarding appropriate charges and documentation, and appropriate security measures are applied, the proposed simplified procedure is supported. Sgd. (Illegible) Mary K. McMunn Chief, Facilitation Section

43. The second letter was dated April 17, 1996. This second letter was from ICAO's regional office for Asia and Pacific with an address at P.O. Box 11, Samyaek Ladprao, Bangkok 10901, Thailand and it was worded in this fashion:

    To: Mr. Zainal Abidin Managing Director ABDA AIRFREIGHT SDN. BHD., West Malaysia From: L.B. Shah, ICAOREP, Bangkok Subject: Clearance of Unaccompanied Baggage I acknowledge your fax ABDA/ICAO/O I /01 /04/96 of 12 April 1996 on the above subject. Annex 9 (FACILITATION) to the Convention on International Civil Aviation already makes provision for unaccompanied baggage to be cleared under the procedure applicable to accompanied baggage or another simplified procedure. The text of Standard 4.53 of Annex 9 reads: Unaccompanied Baggage 4.5.3 Unaccompanied baggage carried by air shall be cleared under the procedure applicable to accompanied baggage or under another simplified customs procedure distinct from that normally applicable to other cargo. Note - It is the intent of this provision, inter alia, that: unaccompanied baggage, to the extent possible be as free from declaration forms as accompanied baggage; however, clearance documents provided by airlines shall be completed by the passenger prior to shipment; the same customs concessions be granted as for accompanied baggage, subject to compliance with the regulations of the Contracting State concerned; and arrangements be made for the clearance of unaccompanied baggage in the passenger customs hall where selected accompanied baggage is cleared when necessary. 4.5.3.1 Contracting States shall make provision so that unaccompanied baggage may be cleared upon request of a person acting as an authorized representative for the owner. I hope the foregoing will be of assistance to you and wish you all the best in your new venture. Best regards, for L.B. Shah Sgd (illegible).

44. But alas, the glow of these two letters from ICAO lost its luster because these two letters were dated in the month of April 1996 and it was clearly after the agreement was terminated. At any rate ICAO's letter dated April 15, 1996 contained a proviso to the effect that "an agreement" has to be "reached with the airline and the customs authorities" which must necessarily mean in Kuala Lumpur and Madras in regard to the upliftment of "unaccompanied baggage". It is interesting to note that Jainula under cross-examination initially said that he had complied with the regulation of the contracting state, namely, Madras but later he resiled and he said that he did not discuss nor comply with any written document from India before the agreement. In a change of heart, Jainula too confirmed that the officials from Madras did not make any provision for baggage to be cleared in the manner as envisaged under the agreement.[6] But, in the context of the present case, the two letters from ICAO came too late in the day and it was of no use to ABDA at all.[7]

45. Article 16 of the First Schedule to the Carriage By Air Act 1974 states as follows:

    (1)

    The consignor must furnish such information and attach to the air waybill such documents as are necessary to meet the formalities of customs or police before the cargo can be delivered to the consignee. The consignor is liable to the carrier for any damage occasioned by the absence, insufficiency or irregularity of any such information or documents, unless the damage is due to the fault of the carrier or his servants or agents.

    (2)

    The carrier is under no obligation to enquire into the correctness or sufficiency of such information or documents.

    and it sets out the obligations of the consignor - referring, of course, to ABDA. The obligations imposed by law on ABDA are certainly onerous. MAS, on the other hand, "will not be responsible for any claims" under the agreement. It must be borne in mind that under the agreement, ABDA was the shipper/consignor of "unaccompanied baggage" while MAS was merely the carrier of the transshipment/consignment. ABDA was not MAS's agent under the agreement. As I said, MAS was specifically excluded from any liability arising under the agreement. Everything rested on ABDA. All the responsibilities under the agreement fell on ABDA.

46. In regard to the issue of advertisement as envisaged under the agreement, reference should be made once again to the letter from Zainal Abidin to Ong dated October 25, 1995 which was reproduced somewhere in this judgment. The third last paragraph of that letter alluded to advertisement through the "local media and radio in Malaysia and Singapore." But the display of the MAS logo at the airport terminal against the back drop of the words "ABDA Baggage Sdn Bhd" (photograph at p 43 of "D12": see para [11] above) was really beyond the scope of the agreement. ABDA was not the agent of MAS for purposes of advertising the company known as "ABDA Baggage Sdn Bhd". In short, usage of MAS logo to promote and advertise the name of the company known as "ABDA Baggage Sdn Bhd" violated the terms of the agreement. To confound the matter further, there was no agency agreement between "ABDA Baggage Sdn Bhd" and "MAS". In my judgment, ABDA misrepresented itself as MAS's agent under the agreement.

    6. WHAT TRANSPIRED IN MADRAS AIRPORT?

47. Jainula, Ong and lbrahim were not in India when the agreement was in operation. In fact, not a single staff from ABDA was present at the tarmac each time MAS aircraft landed in Madras. ABDA's staff too was not posted at the Madras airport terminal. Penial - MAS airport manager at Madras, knew what transpired at Madras airport between the period in question especially between January to March 1996. MAS put Ganga on the stand and he gave a running commentary of the modalities to be applied as soon as an aircraft docked at the Madras airport.

48. Ganga's credentials were quite impressive. He retired as a government servant from the government service of India. He was with the Indian customs department for approximately 34 long years. In his witness statement, he gave an extensive bird's eye view of the customs procedures when an international aircraft landed in Madras airport.[8]

49. Ganga's evidence on customs procedures went unchallenged. There was no cross-examination of Ganga on them and as such ABDA must be deemed to have accepted the customs procedures adopted by the Indian customs officials as enumerated by Ganga. The law on this point can be distilled from the case of Wong Swee Chin v PP [1981] 1 MLJ 212 where Raja Azlan Shah CJ (Malaya) in delivering the judgment of the Federal Court, said:

    On this point we need only say there is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness' testimony. But as is common with all general rules there are also exceptions as pointed out in the judgment of the Supreme Court of New Zealand in Transport Ministry v Carry [1973] 1 NZLR 120, 122 where Haslam J said at p 122:- In Phipson on Evidence, 11th Edn, paragraph 1544 the learned authors suggest examples by way of exception to the general principle that failure to cross-examine will amount to an acceptance of the witness' testimony, viz, where ... the story is itself of an incredible or romancing character, or the abstention arises from mere motives of delicacy ... or when counsel indicates that he is merely abstaining for convenience, e.g., to save time. And where several witnesses are called to the same point it is not always necessary to cross-examine them all.

50. Unhappiness prevailed at Madras airport. Air India - the handling agents in Madras airport, were most unhappy when they were directed, towards the end of February 1996, by MAS officials to despatch containers categorised as cargo in the CPM to the passenger arrival hall instead of the cargo terminal.[9]

51. Air India, was quite riled when they were directed to discharge containers containing unaccompanied baggage to the passenger terminal hall when the containers were covered by a cargo manifest. Penial was summoned by Air India airport manager and he was shown the Indian customs standing orders and he too was queried as to the propriety of discharging unaccompanied baggage at the passenger terminal hall. Nevertheless these containers were discharged at the passenger terminal hall because there were insufficient documents for these containers to be unloaded at the cargo terminal.[10] On numerous occasions, Madras customs officers queried Penial in regard to the similarity of the baggage tags on one flight. When confronted Penial gave all sorts of excuses.[11] On being summoned by the airport manager of Air India in Madras, Penial was quite apologetic:

    A	Yes, l was summoned after the incident of cargo manifest of MH 180 surfaced and he said: What is this, on one side cargo tag on the other side baggage and I replied: I have to keep my superiors in KL informed and I asked him to give me sometime, and not to report it to the customs authorities.

52. Penial even went to the extent of pleading with Air India and the Indian customs authorities not to pursue the matter further formally.[12] Fortunately, all the objections and queries were made orally and Penial was busy contacting his superiors in order to keep them abreast of the latest development. At question 22 of Penial's witness statement, he was asked as to the steps taken by him and his reply was couched in this manner:

    A

    I was rather concerned that if this information were to be officially followed up by the Handling Agents and (the) Customs Officials, MAS would have to face serious consequences. I therefore tried to get in touch with my immediate superior Mr. Darman but I was unable to contact him and the only available senior manager who would be in a position to advise me on the steps I should take was Tuan lbrahim. I had communicated these incidents to Tuan lbrahim through the 'OUS' which is similar to an e-mail within the airline and also took the opportunity to inform him of the objections and queries from the handling agent and airport authorities.

53. That constituted the evidence of Penial which went a long way in favour of MAS.

54. But Mr. Sri Dev Nair for ABDA took exception to the evidence of Penial. It was submitted that the evidence of Penial in regard to what took place at Madras airport towards the end of February was "a farce and far fetched as nothing (had) been documented." It was also submitted that the evidence of Penial was inconsistent and that Penial was blowing "hot and cold" when he could not confirm that there were "53 flights arising out of the agreement" yet Penial, so it was submitted, could remember what the Indian customs officers had said. With respect, there was hardly any force behind these arguments. Mr. Saranjit Singh was right when he submitted that a lawyer could clearly remember what was said when the lawyer was chided by the court in the course of the trial but the lawyer could rarely remember the number of objections taken by his opposing counsel. At any rate, as far as documentation is concerned reference should be made to a message dated March 3, 1996 sent by Penial:

    DARMAN/LAZARUS CPY MURAT/T IBRAHIM/DENZIL SUBJ: UNACCOMPANIED BGGE RESTORED AS CHK-IN BGGE AT MAAAP CUD WE SEEK YR ASSISTANCE TO RQST CGO NOT TO FWD SUCH BGGE W/OUT SEPARATE MARKINGS IN EACH BGGE N ALSO THAT ALL DOCS ARE FWDD ON SAME FLT STP.

55. The response came and it was captioned in this way:

    LAZARUS/DARMAN CY FEISAL/T IBRAHIM/JJONG/YUNUS/ MURAT. SUBJ: BAGGAGE ACCEPTED AS CGO BUT DELIVERED TO ARR HALL AS CHK-IN BAG AT MAAP - ABDA ACT. FTHR TO MY MTLXS ON SUBJ N HDQ FEMH / 032332 CMA PLS NOTE THAT THE ARRGMT HAS BEEN SUSPENDED WITH IMMEDIATE EFFECT STP SHD U CONTINUE TO RECV SUCH SHIPMNT CMA PLS DO NOT SEND IT TO THE ARR HALL FOR CUSTOM CLEARANCE STP HDQFE / KULFZ: PLS ENSURE THAT THE AWBIS RAISED N SEND ON THE FLT AS THE BAGS WILL NOT BE SENT TO THE ARR HALL BUT WILL BE FWD TO CARGO CLEARANCE AREA IF ABDA INSIST ON CONTINUING THE PRACTISE STPPLS ACKN KEEP ME UPDATED ON SITUATION STP RGDS.

56. The messages alluded to above were all documented and so it was erroneous to say that there was no documentary evidence to augment the oral testimony of Penial. It was also erroneous to submit that oral evidence unsupported by documentary evidence was of no significance. In my considered view, oral evidence would in the circumstances of the present case be considered as the "best evidence." Section 59 of the Evidence Act 1950 enacts as follows;

    All facts, except the contents of documents, may be proved by oral evidence.

    and it simply enacts a sound legal principle. Evidence must necessarily include "all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry, such statements are called oral evidence." In PP v Sanassi [1971] 2 MLJ 198, 200-201, Sharma J succinctly said:

    In order to constitute 'evidence' as defined in s 3 of the Evidence Ordinance an oral statement made to the court has to be by a 'witness'. A witness can only give evidence from the witness box and not from the dock or elsewhere.

57. Mudie J in Kurup v PP [1934] MLJ 17, 19, in the same context, had this to say.

    The definition of 'evidence' and 'court' in s 3 of the Evidence Ordinance shows that evidence is the testimony of witnesses in a court or before a person legally authorized to take evidence.

58. There is another section in the Evidence Act, 1950 that merits mention. Section 119 provides that the evidence of a witness who is unable to speak and given in any intelligible manner, as, for example, by writing or by signs shall be deemed to be oral evidence. It is a correct statement of the law to say and I so say that oral evidence is by itself sufficient to prove a fact in the absence of documentary evidence to support it. Indeed in STU v The Comptroller of Income Tax [1962] 28 MLJ 220, 221, Tan Ah Tah J observed:

    In this case certain explanations given by the appellant to the officers of the Income Tax Department were rejected on the ground that there was no documentary evidence to support them. No doubt documentary evidence can in many cases be very cogent and convincing. The lack of it, however, should not invariably be a reason for rejecting an explanation. Not every transaction is accompanied or supported by documentary evidence. Much depends on the facts and circumstances of the case, but if the person who is giving the explanation appears to be worthy of credit, does not reveal any inconsistency and there is nothing improbable in the explanation, it can, in my view, be accepted.

59. In Bhojraj v Sita Ram [1936] PC 60, Lord Roche at p 62 remarked that:

    The real tests are how consistent the story is with itself, how it stands the test of cross-examination and how far it fits in with the rest of the evidence and the circumstances of the case. Here the plaintiffs' main evidence was consistent with itself and in many respects now stands unchallenged.

60. There was nothing inherently improbable in regard to the evidence of Penial (PP v Mohamed Ah [1962] 28 MLJ 257). In his capacity as MAS airport manager in Madras, Penial was in a better position to testify as to what actually happened at Madras airport. There was no glaring discrepancy in the evidence of Penial that was sufficient to destroy his credibility. There was however minor lack of recollection but that was not sufficient to relegate Penial's evidence to oblivion. No witness in the world can give a perfect summary of the evidence while that witness is in the witness box unless of course that witness is tutored. Some witnesses take the stand and give evidence by rote or learned by heart but nonetheless give a true story of what actually transpired. Gill J in De Silva v PP [1964] MLJ 81, 83 rightly observed that:

    Discrepancies and contradictions there will always be in any case. In considering them what the court has to decide is whether they are of such a nature as to discredit the witness entirely and render the whole of his evidence worthless or untrustworthy.

61. Charles Ho J in Mohamed Alias v PP [1983] 2 MLJ 172 laid down the correct approach in tackling discrepancies. This was what he said:

    In considering the discrepancies the court should take into account the educational background and experience of the witness and whether the witness is describing events which have taken place recently or a long time ago and the demeanour.

62. Wan Yahya J in Pie Chin v PP [1985] 1 MLJ 234, 235 had this to say of discrepancies generally:

    Discrepancies are no doubt present in this case, as they do ostensibly appear in most cases in evidence of witnesses for the prosecution as well as the defence. The transcripts of most evidence, when thoroughly tooth combed by any able lawyer, never failed to yield some form of inconsistencies, discrepancies or contradictions but these do not necessarily render the witness' entire evidence incredible. It is only when a witness's evidence on material and obvious matters in the case is so irreconcilable, ambivalent or negational that his whole evidence is to be disregarded.

63. The candour on the part of Penial can never be doubted.[13]

64. The salutary remarks of Raja Azlan Shah FJ in PP v Datuk Harun ldris (No 2) [1977] 1 MLJ 15, 19 must be put in the forefront when considering the evidence of Penial. This was what His Lordship said:

    In my opinion discrepancies there will always be, because in the circumstances in which the events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened. It may be open to criticism, or it might be better if they took down a note book and wrote down every single thing that happened and every single thing that was said. But they did not know that they are going to be witnesses at this trial. I shall be almost inclined to think that if there are no discrepancies, it might be suggested that they have concocted their accounts of what had happened or what had been said because their versions are too consistent. The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all.

65. Taken in its right perspective there was nothing inherently improbable about the evidence of Penial. He was the man of the hour. He was present at Madras airport and he was in a position to testify as to what had actually happened. He was not describing an episode about the "cow jumping over the moon" - to borrow the words of Thomson CJ in PP v Mohamed Ali (supra), but rather he was describing the events that transpired at Madras airport. He described as to what he saw and heard. It was a display of oral evidence at its best. ABDA had only one witness to its credit and that was Jainula. It must be recalled that Jainula was not at Madras airport during the pendency of the agreement. In fact, Jainula was never in India at the material time. Thus, it was not surprising that nothing was "put" to Penial in the course of his cross-examination. The flow of Penial's evidence was quite smooth. It was part and parcel of my judgment and it was my finding of fact that the evidence of Penial was inherently probable and I must accept his evidence as the gospel truth.

    7. TERMINATION OF THE AGREEMENT

66. ABDA was most unhappy that MAS terminated the agreement unilaterally and without assigning any reason for doing so. MAS, on the other end of the scale, held the view that the agreement was lawfully terminated. In my judgment, MAS was perfectly entitled to terminate the agreement without even assigning any reason. There is an array of authorities which says that if one party alleges a breach of contract for the wrong reason or for no reason at all, that party may yet justify the termination if there were at the time facts in existence which would have provided a good reason. It would be sufficient to cite the following authorities for that simple proposition of the law:-

    1. Ridgeway v Hungerford Market Co [1835] 3 A & E 171;

    2. Taylor v Oakes, Roncoroni & Co [1922] 127 LT 267, 269;

    3. British and Belington's Ltd v North Western Catcher Tea Company, Ltd [1923] AC 48, 71; and

    4. Universal Cargo Carriers Corporation v Cotati [1957] 2 QB 401, 445; [1957] 2 All ER 70, 89.

67. Bluntly put, when MAS gives no ground for the termination of the agreement, MAS, may generally speaking, rely on any ground available at the time of the termination. In British & Belington's Ltd (supra), Lord Sumner writing a separate judgment for the House of Lords had this to say (at p 71):

    I do not think that the case, as reported, lays it down that a buyer, who has repudiated a contract for a given reason which fails him, has, therefore, no other opportunity of defence either as to the whole or as to part, but must fail utterly. If he had repudiated, giving no reason at all, I suppose all reasons and all defenses in the action, partial or complete, would be open to him. His motives certainly are immaterial, and I do not see why his reasons should be crucial.

68. In Maredelanto Compania Naviera SA v Bergbau-Handel GmbH; The Mihalis Angelas [1970] 3 WLR 601, 609, Lord Denning MR. writing a separate judgment for the Court of Appeal and after examining the facts said:

    The first point arises on the clause by which the c