POLYFLOW PIPES SDN. BHD. vs POH LIAN CONSTRUCTION SDN. BHD.(MJLR2009a26) Abdul Aziz ,SS
CA-12-38-2008-II
1
MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING
CIVIL APPEAL NO. 12-38-2008-II
5 BETWEEN
POLYFLOW PIPES SDN. BHD. … Appellant
(Company No. 197401-H)
a company incorporated in Malaysia
10 under the Companies Act 1965 and
having its registered office at
Lot 27, Block 4, Muara Tebas Land District,
Jalan Bako, Petra Jaya
93050 Kuching, Sarawak
15
AND
POH LIAN CONSTRUCTION SDN. BHD. … Respondent
(Company No. 238309-U)
20 a company incorporated in Malaysia
under the Companies Act 1965 and
having its registered office at
1st Floor, Sublot 62, Lot 7883,
Queen’s Court, Jalan Wan Alwi,
25 93350 Kuching, Sarawak
(IN THE MATTER OF Kuching Sessions Court Summons No. 52-490-2002-I)
BETWEEN
30
POLYFLOW PIPES SDN. BHD. … Plaintiff
(Company No. 197401-H)
a company incorporated in Malaysia
under the Companies Act 1965 and
35 having its registered office at
Lot 27, Block 4, Muara Tebas Land District,
Jalan Bako, Petra Jaya
93050 Kuching, Sarawak
40
CA-12-38-2008-II
2
AND
POH LIAN CONSTRUCTION SDN. BHD. … Defendant
(Company No. 238309-U)
a company incorporated 5 in Malaysia
under the Companies Act 1965 and
having its registered office at
1st Floor, Sublot 62, Lot 7883,
Queen’s Court, Jalan Wan Alwi,
10 93350 Kuching, Sarawak
BEFORE THE HONOURABLE JUSTICE
Y.A. DATO’ ABDUL AZIZ BIN ABDUL RAHIM
15
IN CHAMBERS
JUDGMENT
Introduction
20
This appeal is against the whole of the Learned Sessions Court Judge’s
decision in dismissing the Appellant’s claim against the Respondent with
costs to the Respondent to be taxed unless agreed.
25 Brief Facts
The Appellant’s claim against the Respondent is founded on one of the
Appellant’s Invoice No. 11110 dated 10th March, 2000 for goods sold and
delivered i.e. 23 crates (180L) of High Density Polyethelene Pipes (“HDPE
30 pipes”) issued to the Respondent. The Respondent had via their
Purchase Order No. 1147 dated 6th March, 2000 placed an order with
the Appellant for the said HDPE pipes. After the said HDPE pipes were
delivered to Tung Hin Wharf to be shipped to Syarikat Sinlom as
CA-12-38-2008-II
3
requested by the Respondent, the Appellant forwarded the Delivery
Order No. 11230, Invoice No. 11110 and Shipping Order No. 1216 to the
Respondent who duly acknowledged the same.
Respondent’s 5 Defence
In essence, the Respondent’s Defence is two-fold – First, the Respondent
said that it did not receive any of the HDPE pipes stated in the
Appellant’s Invoice No. 11110 or at all.
10
Secondly, the Respondent alleged that the Appellant had through its
agent or servant misrepresented to the Respondent’s office clerk that
the HDPE pipes had been duly delivered to and collected by the
Respondent in Lawas, causing the Respondent’s office clerk at Kuching
15 to acknowledge receipt of the HDPE pipes by signing on Invoice No.
11110 dated 10th March, 2000, Delivery Order No. 11230 dated 6th
March, 2000 and Shipping Order No. 1216 (“the said Documents”).
The Appellant appeals against the whole of the decision on the following
20 grounds:-
1. The Learned Sessions Court Judge misdirected himself in failing to
undertake a judicial appreciation of the facts and evidence before
him when coming to his decision upon the Appellant’s claim in this
25 action.
CA-12-38-2008-II
4
2. The Learned Sessions Court Judge erred in law and in fact in
holding that there was no contract between the Appellant and the
Respondent for the supply of a total of 23 crates (180 lengths) of
280MM PN8 x 12M HDPE pipes when the contemporaneous
documentary evidence produced in Court by the 5 Appellant shows
otherwise.
3. The Learned Sessions Court Judge erred in law and in fact in
holding that there was a contract for supply of a total of 23 crates
10 (180 lengths) of 280MM PN8 x 12M HDPE pipes between the
Appellant and Sim Bee Chin by failing to consider sufficiently or at
all the following facts:-
(a) that the Appellant’s unchallenged evidence is that the
15 Appellant had at the outset refused to deal in business with
Sim Bee Chin because of his failure to provide the Appellant
with the Letter of Credit and/or his lack of credit
worthiness;
20 (b) that the alleged amendment of the quantity in the
Respondent’s purchase orders from 200 lengths to 180
lengths was not even pleaded in the Respondent’s
Amended Defence;
25 (c) that Sim Bee Chin was the designated recipient of the said
23 crates (180 lengths) of 280MM PN8 x 12M HDPE pipes
based on contemporaneous documentary evidence, that is,
CA-12-38-2008-II
5
the Appellant’s delivery order and shipping order which
receipt were duly acknowledged by the Respondent.
4. The Learned Session Court Judge erred in law and in fact in placing
reliance upon the oral evidence/testimony of 5 the Respondent’s
witnesses to contradict and/or vary the terms of the purchase
order, the delivery order, the shipping order and the invoice which
constituted a contract in writing between the Appellant and the
Respondent.
10
5. The Learned Sessions Court Judge misdirected himself in failing to
undertake a judicial appreciation of the facts and evidence before
him in coming to his decision that the Respondent and/or its
agent would not have signed the Appellant’s delivery order, the
15 shipping order and the invoice had she been informed that the
said purchase order that she had issued was amended to a lesser
quantity.
6. The Learned Sessions Court Judge erred in law and in fact in
20 holding that the Appellant’s failure to inform the Respondent
and/or its agent of the amendment to a lesser quantity in their
purchase order had led the Respondent and/or its agent to sign
the Appellant’s delivery order, the shipping order and the invoice.
25 7. The Learned Sessions Court Judge erred in law and in fact in
holding that though the evidence of the Appellant’s previous
transaction with the Respondent concerning the order of HDPE
CA-12-38-2008-II
6
pipes was relevant, the Appellant’s failure to plead the previous
transaction in the Appellant’s pleadings and failure to produce the
documents during the discovery stage have prevented the
Appellant from producing the same during trial.
5
8. The Learned Sessions Court Judge erred in law and in fact in
holding that the Appellant’s failure to state the details of the exact
time and date of the Respondent’s proposal recorded in the
Appellant’s letter dated 28th February, 2002 had rendered the said
10 documentary evidence unreliable.
9. The Learned Sessions Court Judge erred in law and/or in fact in
dismissing with costs the Appellant’s claim in this action.
15 10. The Learned Sessions Court ought to have held that the Appellant
was entitled to judgment as prayed for in the Appellant’s
Amended Statement of Claim.
The above grounds raise the following main issues in this appeal:
20
(a) Firstly, was there a contract between the Appellant and the
Respondent for purchase and delivery of 23 crates (180L) of
High Density Polyethelene Pipes (“HDPE pipes”), and were
the HDPE pipes received by the Respondent?;
25
CA-12-38-2008-II
7
(b) Secondly, if there is contract and the contract is in writing,
can the Learned Sessions Court admitted oral evidence to
prove the existence or otherwise of such contract?;
(c) Thirdly, is the Learned Sessions Court 5 Judge correct in
deciding on issues which are not pleaded?;
(d) Fourthly, was the trial Judge correct in rejecting the
evidence of part or previous transactions between the
10 Appellant and Respondent because such part or previous
transaction is not pleaded?; and
(e) Finally, is there a proper evaluation of the facts and
evidence by the trial Judge in this instant case?
15
Opinions of the Court
The first two issues will be taken together.
20 In this case the Purchase Order No. 1147 issued by the Respondent and
Delivery Order No. 11230, Shipping Order No. 1216 and Invoice No.
11110 that were duly acknowledged by the Respondent’s office clerk are
contemporaneous documentary evidence before the Learned Sessions
Court Judge. Importantly, the Respondent’s office clerk had duly
25 acknowledged Delivery Order No. 11230, Shipping Order No. 1216 and
Invoice No. 11110 without any objections or queries until the
commencement of this action. In my opinion these documents
CA-12-38-2008-II
8
constitute the contract between the parties. The terms of the contract
between the Respondent and the Appellant have been reduced to
writing in the form of the said Documents.
However relying on oral testimonies and evidence 5 of DW2 and DW3 the
Learned Sessions Court Judge found that the contract was between
Appellant and one Sim Bee Chin (DW2). There is no evidence to support
the finding. The only evidence is by Sim Bee Chin himself who testified
that he was the one who called Mr. Sun Nan Ping (PW1) to amend the
10 quantity of the Goods in Purchase Order No. 1147. The Learned
Sessions Court Judge had not given the evidence by PW1 that the
amendment to the Purchase Order was not at the instant of DW2 a
proper judicial evaluation in the light of the circumstances of this case.
15 In evidence, it is unchallenged that the Appellant had at the outset
refused to deal with Sim Bee Chin because of his lack of credit
worthiness and/or his failure to provide the Appellant with the Letter of
Credit.
20 More importantly, it was never pleaded by the Respondent that the
Appellant entered into a contract with Sim Bee Chin for the supply of the
said Goods.
The fact of the matter is that the Purchase Order, the Delivery Order, the
25 Shipping Order and the Invoice which are the documents that embodied
the contract between the Appellant and Respondent are
contemporaneous documents.
CA-12-38-2008-II
9
In YK Fung Securities Sdn Bhd v Ronald Yeoh Kheng Hian (1989) 3 MLJ
490, Abdul Malek J held that “[w]here documents clearly state that
goods were ordered by one party, they should not be allowed to bring
oral evidence to contradict the terms of the contract and to show that
the goods were ordered 5 for another.”
Moreover section 91 of the Evidence Act, 1950 provides that “When the
terms of a contract … have been reduced by the parties to the form of a
document, no evidence shall be given in proof of the terms of the
10 contract … except for the document itself…” and Section 92 provides that
“When the terms of any such evidence of any oral agreement or
statement shall be admitted as between the parties to any such
instrument or their representatives in interest for the purpose of
contradicting, varying, adding to, or subtracting from its terms…” In
15 Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka (1979) 2
MLJ 124, Salleh Abas FJ (as he then was) stated thus:- “The sales invoice
and the delivery note being contract reduced in writing between the
appellants and the respondents section 92 therefore applies.”
20 As to the evidence of the acceptance of the HDPE pipes, Chai Swee Fung
(DW1) stated in her witness statement that she affixed the Respondent’s
rubber stamp and signed on the Documents because Joseph Sim (PW2)
had informed her that the goods had been delivered to the
Respondent’s company in Lawas.
25
CA-12-38-2008-II
10
However, Chai Swee Fung also testified that she merely acknowledged
receipt of the said Documents and not the Goods when she affixed the
Respondent’s rubber stamp and signed on the said Documents.
Learned Counsel for the Appellant submitted that the 5 Learned Sessions
Court Judge had failed to see that there are inconsistencies and conflicts
in the evidence by the Respondent’s witness, Chai Swee Fung. On one
hand she said she signed the said Documents merely to acknowledge
receipt of the said Documents. On the other hand she said she signed
10 on the said Documents to acknowledge that the goods had been
delivered to the Respondent’s company in Lawas.
Another aspect in the conflict of evidence in this case relates to the
amendment on variation of the Purchase Order No. 1147. Sim Bee Chin
15 (DW2) testified that it was he that called upon Mr. Sun Nan Ping (PW1)
to amend the Purchase Order by substituting 180L HDPE pipes for 200L
HDPE pipes. However Mr. Sun Nan Ping (PW1) testified that the
amendment was not done on instruction of Sim Bee Chin (DW2).
20 In Foo Sam Ming v Archi Environ Parnership (2004) 1 MLJ 449, it was
held that the trial Judge was correct in preferring the contemporaneous
documents to oral explanations given by the appellant on oath. The law
therefore is that when faced with conflicting evidence or versions of the
facts, the Court should prefer the cold hard facts contain in the
25 contemporaneous documents.
CA-12-38-2008-II
11
In this regard also, I am of the view that the Learned Sessions Court
Judge was wrong in invoking Section 114 (g) Evidence Act 1950 against
the Appellant because of the failure of the Appellant to call one Rebecca
Sim to testify to the amendment of the Purchase Order. That provisions,
in my view, is invoked against a party who tries to 5 suppress or hide
evidence which is not favourable to him. In this case, that is not the
situation. Here the evidence relate to amendment of the quantity in the
Purchase Order. The amendment was acknowledged but the question is
who instructed the amendment to be done. Was it Sim Bee Chin (DW2)
10 or someone else? This is evidence of fact. And clearly in this case there
are two versions of it. Thus, the trial Court must choose between the
two versions, as to which is more probable. On this issue the Learned
Sessions Court Judge had failed to appreciate that there was a conflict of
evidence, and he failed to refer to the objective facts and
15 contemporaneous documentary evidence and overall possibilities.
In this case, Mr. Sun Nan Ping (PW1) had already testified in the trial that
the amendment of quantity of HDPE Pipes was not done under the
instruction of Sim Bee Chin (DW2). Mr. Sun Nan Ping (PW1) is in as good
20 a position, if not better, to testify on this point. He is the General
Manager of Plaintiff and he was informed of the amendment by his staff
Rebecca Sim who told him that the Defendant Managing Director Mr. Ng
Song Kong (DW3) had called her over the phone to do the amendment.
This was denied by DW3. In the circumstances, it would appear that the
25 amendment to the Purchase Order No. 1147 was made at the request of
Sim Bee Chin (DW2). But it is of utmost importance to note here that
the issues of Sim Bee Chin being a contracting party, the amendment of
CA-12-38-2008-II
12
the order to a lesser quantity and non-record of the details of the said
proposal have never been pleaded by the parties in their pleadings, nor
were they raised in the parties’ submissions. Moreover, the issue of the
amendment of quantity of the said Goods from 200L to 180L was never
5 even pleaded.
This brings me to the third issue. In Yew Wan Leong v Lai Kok Chye
(1990) 2 MLJ 152, the Supreme Court allowed the Plaintiff’s appeal as
the trial Court had made a decision on an issue which was not raised by
10 the parties in their pleadings, citing Sharma J (as he then was) in Janagi v
Ong Boon Kiat (1971) 2 MLJ 196, stating that ‘[t]he court is not entitled
to decide a suit on a matter which no issue has been raised by the
parties. It is not the duty of the court to make out a case for one of the
parties when the party concerned does not raise or wish to raise the
15 point.’
In this case it is clear that the Respondent never pleaded the
amendments to the Purchase Order and also never pleaded that the
contract was with DW2, Sim Bee Chin. On the authorities, the Learned
20 Sessions Court Judge ought not to have made a decision on an issue
which was not raised by the parties in their pleadings.
On the fourth issue, it is not disputed that has been previous
transactions between the Plaintiff and the Respondent. This is not a
25 material fact relied by the Plaintiff to prove their case. This is only a
matter of evidence to show the business relations between the parties.
CA-12-38-2008-II
13
Order 13 rule 1 of the Subordinate Courts Rules, 1980, states that
“every pleading must contain, and contain only a statement in a
summary form of the material facts on which the party pleading relies
for his claim or defence, as the case may be, but not the evidence by
which those facts are to be proved, and the statement 5 must be as brief
as the nature of the case admits.” Therefore in my view the Learned
Session Court Judge was wrong in rejecting this evidence.
The Learned Sessions Court Judge’s failure to undertake a judicial
10 appreciation of the evidence before him is also seen when he failed to
consider that the Defendant has, through DW3 stepped in to order the
HDPE pipes from the Plaintiff for and on behalf of Sim Bee Chin (DW2)
when the latter failed to provide letter of credit to the Plaintiff. This
evidence (at page 2 of the Learned Judge’s judgment) was not
15 considered when the Learned Judge concluded that the contract was
with Sim Bee Chin. This is particularly important considering the fact
that Defendant never pleaded that the contract was in fact with Sim Bee
Chin.
20 For the above reasons, I will allow this appeal with costs here and below.
Dated: 27th July 2009
Sgd.
25 (Y.A. DATO’ ABDUL AZIZ BIN ABDUL RAHIM)
Judge
High Court II Kuching
CA-12-38-2008-II
14
Date of Hearing : 19.2.2009 and 27.7.2009
For Appellant : Mr. Yong Sie Mee,
Messrs. Loke, King, Goh & Partners Advocates,
5 Kuching.
For Respondent : Mr. Lim Heng Choo,
Messrs. Lim & Lim Advocates,
Kuching.
1
MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING
CIVIL APPEAL NO. 12-38-2008-II
5 BETWEEN
POLYFLOW PIPES SDN. BHD. … Appellant
(Company No. 197401-H)
a company incorporated in Malaysia
10 under the Companies Act 1965 and
having its registered office at
Lot 27, Block 4, Muara Tebas Land District,
Jalan Bako, Petra Jaya
93050 Kuching, Sarawak
15
AND
POH LIAN CONSTRUCTION SDN. BHD. … Respondent
(Company No. 238309-U)
20 a company incorporated in Malaysia
under the Companies Act 1965 and
having its registered office at
1st Floor, Sublot 62, Lot 7883,
Queen’s Court, Jalan Wan Alwi,
25 93350 Kuching, Sarawak
(IN THE MATTER OF Kuching Sessions Court Summons No. 52-490-2002-I)
BETWEEN
30
POLYFLOW PIPES SDN. BHD. … Plaintiff
(Company No. 197401-H)
a company incorporated in Malaysia
under the Companies Act 1965 and
35 having its registered office at
Lot 27, Block 4, Muara Tebas Land District,
Jalan Bako, Petra Jaya
93050 Kuching, Sarawak
40
CA-12-38-2008-II
2
AND
POH LIAN CONSTRUCTION SDN. BHD. … Defendant
(Company No. 238309-U)
a company incorporated 5 in Malaysia
under the Companies Act 1965 and
having its registered office at
1st Floor, Sublot 62, Lot 7883,
Queen’s Court, Jalan Wan Alwi,
10 93350 Kuching, Sarawak
BEFORE THE HONOURABLE JUSTICE
Y.A. DATO’ ABDUL AZIZ BIN ABDUL RAHIM
15
IN CHAMBERS
JUDGMENT
Introduction
20
This appeal is against the whole of the Learned Sessions Court Judge’s
decision in dismissing the Appellant’s claim against the Respondent with
costs to the Respondent to be taxed unless agreed.
25 Brief Facts
The Appellant’s claim against the Respondent is founded on one of the
Appellant’s Invoice No. 11110 dated 10th March, 2000 for goods sold and
delivered i.e. 23 crates (180L) of High Density Polyethelene Pipes (“HDPE
30 pipes”) issued to the Respondent. The Respondent had via their
Purchase Order No. 1147 dated 6th March, 2000 placed an order with
the Appellant for the said HDPE pipes. After the said HDPE pipes were
delivered to Tung Hin Wharf to be shipped to Syarikat Sinlom as
CA-12-38-2008-II
3
requested by the Respondent, the Appellant forwarded the Delivery
Order No. 11230, Invoice No. 11110 and Shipping Order No. 1216 to the
Respondent who duly acknowledged the same.
Respondent’s 5 Defence
In essence, the Respondent’s Defence is two-fold – First, the Respondent
said that it did not receive any of the HDPE pipes stated in the
Appellant’s Invoice No. 11110 or at all.
10
Secondly, the Respondent alleged that the Appellant had through its
agent or servant misrepresented to the Respondent’s office clerk that
the HDPE pipes had been duly delivered to and collected by the
Respondent in Lawas, causing the Respondent’s office clerk at Kuching
15 to acknowledge receipt of the HDPE pipes by signing on Invoice No.
11110 dated 10th March, 2000, Delivery Order No. 11230 dated 6th
March, 2000 and Shipping Order No. 1216 (“the said Documents”).
The Appellant appeals against the whole of the decision on the following
20 grounds:-
1. The Learned Sessions Court Judge misdirected himself in failing to
undertake a judicial appreciation of the facts and evidence before
him when coming to his decision upon the Appellant’s claim in this
25 action.
CA-12-38-2008-II
4
2. The Learned Sessions Court Judge erred in law and in fact in
holding that there was no contract between the Appellant and the
Respondent for the supply of a total of 23 crates (180 lengths) of
280MM PN8 x 12M HDPE pipes when the contemporaneous
documentary evidence produced in Court by the 5 Appellant shows
otherwise.
3. The Learned Sessions Court Judge erred in law and in fact in
holding that there was a contract for supply of a total of 23 crates
10 (180 lengths) of 280MM PN8 x 12M HDPE pipes between the
Appellant and Sim Bee Chin by failing to consider sufficiently or at
all the following facts:-
(a) that the Appellant’s unchallenged evidence is that the
15 Appellant had at the outset refused to deal in business with
Sim Bee Chin because of his failure to provide the Appellant
with the Letter of Credit and/or his lack of credit
worthiness;
20 (b) that the alleged amendment of the quantity in the
Respondent’s purchase orders from 200 lengths to 180
lengths was not even pleaded in the Respondent’s
Amended Defence;
25 (c) that Sim Bee Chin was the designated recipient of the said
23 crates (180 lengths) of 280MM PN8 x 12M HDPE pipes
based on contemporaneous documentary evidence, that is,
CA-12-38-2008-II
5
the Appellant’s delivery order and shipping order which
receipt were duly acknowledged by the Respondent.
4. The Learned Session Court Judge erred in law and in fact in placing
reliance upon the oral evidence/testimony of 5 the Respondent’s
witnesses to contradict and/or vary the terms of the purchase
order, the delivery order, the shipping order and the invoice which
constituted a contract in writing between the Appellant and the
Respondent.
10
5. The Learned Sessions Court Judge misdirected himself in failing to
undertake a judicial appreciation of the facts and evidence before
him in coming to his decision that the Respondent and/or its
agent would not have signed the Appellant’s delivery order, the
15 shipping order and the invoice had she been informed that the
said purchase order that she had issued was amended to a lesser
quantity.
6. The Learned Sessions Court Judge erred in law and in fact in
20 holding that the Appellant’s failure to inform the Respondent
and/or its agent of the amendment to a lesser quantity in their
purchase order had led the Respondent and/or its agent to sign
the Appellant’s delivery order, the shipping order and the invoice.
25 7. The Learned Sessions Court Judge erred in law and in fact in
holding that though the evidence of the Appellant’s previous
transaction with the Respondent concerning the order of HDPE
CA-12-38-2008-II
6
pipes was relevant, the Appellant’s failure to plead the previous
transaction in the Appellant’s pleadings and failure to produce the
documents during the discovery stage have prevented the
Appellant from producing the same during trial.
5
8. The Learned Sessions Court Judge erred in law and in fact in
holding that the Appellant’s failure to state the details of the exact
time and date of the Respondent’s proposal recorded in the
Appellant’s letter dated 28th February, 2002 had rendered the said
10 documentary evidence unreliable.
9. The Learned Sessions Court Judge erred in law and/or in fact in
dismissing with costs the Appellant’s claim in this action.
15 10. The Learned Sessions Court ought to have held that the Appellant
was entitled to judgment as prayed for in the Appellant’s
Amended Statement of Claim.
The above grounds raise the following main issues in this appeal:
20
(a) Firstly, was there a contract between the Appellant and the
Respondent for purchase and delivery of 23 crates (180L) of
High Density Polyethelene Pipes (“HDPE pipes”), and were
the HDPE pipes received by the Respondent?;
25
CA-12-38-2008-II
7
(b) Secondly, if there is contract and the contract is in writing,
can the Learned Sessions Court admitted oral evidence to
prove the existence or otherwise of such contract?;
(c) Thirdly, is the Learned Sessions Court 5 Judge correct in
deciding on issues which are not pleaded?;
(d) Fourthly, was the trial Judge correct in rejecting the
evidence of part or previous transactions between the
10 Appellant and Respondent because such part or previous
transaction is not pleaded?; and
(e) Finally, is there a proper evaluation of the facts and
evidence by the trial Judge in this instant case?
15
Opinions of the Court
The first two issues will be taken together.
20 In this case the Purchase Order No. 1147 issued by the Respondent and
Delivery Order No. 11230, Shipping Order No. 1216 and Invoice No.
11110 that were duly acknowledged by the Respondent’s office clerk are
contemporaneous documentary evidence before the Learned Sessions
Court Judge. Importantly, the Respondent’s office clerk had duly
25 acknowledged Delivery Order No. 11230, Shipping Order No. 1216 and
Invoice No. 11110 without any objections or queries until the
commencement of this action. In my opinion these documents
CA-12-38-2008-II
8
constitute the contract between the parties. The terms of the contract
between the Respondent and the Appellant have been reduced to
writing in the form of the said Documents.
However relying on oral testimonies and evidence 5 of DW2 and DW3 the
Learned Sessions Court Judge found that the contract was between
Appellant and one Sim Bee Chin (DW2). There is no evidence to support
the finding. The only evidence is by Sim Bee Chin himself who testified
that he was the one who called Mr. Sun Nan Ping (PW1) to amend the
10 quantity of the Goods in Purchase Order No. 1147. The Learned
Sessions Court Judge had not given the evidence by PW1 that the
amendment to the Purchase Order was not at the instant of DW2 a
proper judicial evaluation in the light of the circumstances of this case.
15 In evidence, it is unchallenged that the Appellant had at the outset
refused to deal with Sim Bee Chin because of his lack of credit
worthiness and/or his failure to provide the Appellant with the Letter of
Credit.
20 More importantly, it was never pleaded by the Respondent that the
Appellant entered into a contract with Sim Bee Chin for the supply of the
said Goods.
The fact of the matter is that the Purchase Order, the Delivery Order, the
25 Shipping Order and the Invoice which are the documents that embodied
the contract between the Appellant and Respondent are
contemporaneous documents.
CA-12-38-2008-II
9
In YK Fung Securities Sdn Bhd v Ronald Yeoh Kheng Hian (1989) 3 MLJ
490, Abdul Malek J held that “[w]here documents clearly state that
goods were ordered by one party, they should not be allowed to bring
oral evidence to contradict the terms of the contract and to show that
the goods were ordered 5 for another.”
Moreover section 91 of the Evidence Act, 1950 provides that “When the
terms of a contract … have been reduced by the parties to the form of a
document, no evidence shall be given in proof of the terms of the
10 contract … except for the document itself…” and Section 92 provides that
“When the terms of any such evidence of any oral agreement or
statement shall be admitted as between the parties to any such
instrument or their representatives in interest for the purpose of
contradicting, varying, adding to, or subtracting from its terms…” In
15 Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka (1979) 2
MLJ 124, Salleh Abas FJ (as he then was) stated thus:- “The sales invoice
and the delivery note being contract reduced in writing between the
appellants and the respondents section 92 therefore applies.”
20 As to the evidence of the acceptance of the HDPE pipes, Chai Swee Fung
(DW1) stated in her witness statement that she affixed the Respondent’s
rubber stamp and signed on the Documents because Joseph Sim (PW2)
had informed her that the goods had been delivered to the
Respondent’s company in Lawas.
25
CA-12-38-2008-II
10
However, Chai Swee Fung also testified that she merely acknowledged
receipt of the said Documents and not the Goods when she affixed the
Respondent’s rubber stamp and signed on the said Documents.
Learned Counsel for the Appellant submitted that the 5 Learned Sessions
Court Judge had failed to see that there are inconsistencies and conflicts
in the evidence by the Respondent’s witness, Chai Swee Fung. On one
hand she said she signed the said Documents merely to acknowledge
receipt of the said Documents. On the other hand she said she signed
10 on the said Documents to acknowledge that the goods had been
delivered to the Respondent’s company in Lawas.
Another aspect in the conflict of evidence in this case relates to the
amendment on variation of the Purchase Order No. 1147. Sim Bee Chin
15 (DW2) testified that it was he that called upon Mr. Sun Nan Ping (PW1)
to amend the Purchase Order by substituting 180L HDPE pipes for 200L
HDPE pipes. However Mr. Sun Nan Ping (PW1) testified that the
amendment was not done on instruction of Sim Bee Chin (DW2).
20 In Foo Sam Ming v Archi Environ Parnership (2004) 1 MLJ 449, it was
held that the trial Judge was correct in preferring the contemporaneous
documents to oral explanations given by the appellant on oath. The law
therefore is that when faced with conflicting evidence or versions of the
facts, the Court should prefer the cold hard facts contain in the
25 contemporaneous documents.
CA-12-38-2008-II
11
In this regard also, I am of the view that the Learned Sessions Court
Judge was wrong in invoking Section 114 (g) Evidence Act 1950 against
the Appellant because of the failure of the Appellant to call one Rebecca
Sim to testify to the amendment of the Purchase Order. That provisions,
in my view, is invoked against a party who tries to 5 suppress or hide
evidence which is not favourable to him. In this case, that is not the
situation. Here the evidence relate to amendment of the quantity in the
Purchase Order. The amendment was acknowledged but the question is
who instructed the amendment to be done. Was it Sim Bee Chin (DW2)
10 or someone else? This is evidence of fact. And clearly in this case there
are two versions of it. Thus, the trial Court must choose between the
two versions, as to which is more probable. On this issue the Learned
Sessions Court Judge had failed to appreciate that there was a conflict of
evidence, and he failed to refer to the objective facts and
15 contemporaneous documentary evidence and overall possibilities.
In this case, Mr. Sun Nan Ping (PW1) had already testified in the trial that
the amendment of quantity of HDPE Pipes was not done under the
instruction of Sim Bee Chin (DW2). Mr. Sun Nan Ping (PW1) is in as good
20 a position, if not better, to testify on this point. He is the General
Manager of Plaintiff and he was informed of the amendment by his staff
Rebecca Sim who told him that the Defendant Managing Director Mr. Ng
Song Kong (DW3) had called her over the phone to do the amendment.
This was denied by DW3. In the circumstances, it would appear that the
25 amendment to the Purchase Order No. 1147 was made at the request of
Sim Bee Chin (DW2). But it is of utmost importance to note here that
the issues of Sim Bee Chin being a contracting party, the amendment of
CA-12-38-2008-II
12
the order to a lesser quantity and non-record of the details of the said
proposal have never been pleaded by the parties in their pleadings, nor
were they raised in the parties’ submissions. Moreover, the issue of the
amendment of quantity of the said Goods from 200L to 180L was never
5 even pleaded.
This brings me to the third issue. In Yew Wan Leong v Lai Kok Chye
(1990) 2 MLJ 152, the Supreme Court allowed the Plaintiff’s appeal as
the trial Court had made a decision on an issue which was not raised by
10 the parties in their pleadings, citing Sharma J (as he then was) in Janagi v
Ong Boon Kiat (1971) 2 MLJ 196, stating that ‘[t]he court is not entitled
to decide a suit on a matter which no issue has been raised by the
parties. It is not the duty of the court to make out a case for one of the
parties when the party concerned does not raise or wish to raise the
15 point.’
In this case it is clear that the Respondent never pleaded the
amendments to the Purchase Order and also never pleaded that the
contract was with DW2, Sim Bee Chin. On the authorities, the Learned
20 Sessions Court Judge ought not to have made a decision on an issue
which was not raised by the parties in their pleadings.
On the fourth issue, it is not disputed that has been previous
transactions between the Plaintiff and the Respondent. This is not a
25 material fact relied by the Plaintiff to prove their case. This is only a
matter of evidence to show the business relations between the parties.
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13
Order 13 rule 1 of the Subordinate Courts Rules, 1980, states that
“every pleading must contain, and contain only a statement in a
summary form of the material facts on which the party pleading relies
for his claim or defence, as the case may be, but not the evidence by
which those facts are to be proved, and the statement 5 must be as brief
as the nature of the case admits.” Therefore in my view the Learned
Session Court Judge was wrong in rejecting this evidence.
The Learned Sessions Court Judge’s failure to undertake a judicial
10 appreciation of the evidence before him is also seen when he failed to
consider that the Defendant has, through DW3 stepped in to order the
HDPE pipes from the Plaintiff for and on behalf of Sim Bee Chin (DW2)
when the latter failed to provide letter of credit to the Plaintiff. This
evidence (at page 2 of the Learned Judge’s judgment) was not
15 considered when the Learned Judge concluded that the contract was
with Sim Bee Chin. This is particularly important considering the fact
that Defendant never pleaded that the contract was in fact with Sim Bee
Chin.
20 For the above reasons, I will allow this appeal with costs here and below.
Dated: 27th July 2009
Sgd.
25 (Y.A. DATO’ ABDUL AZIZ BIN ABDUL RAHIM)
Judge
High Court II Kuching
CA-12-38-2008-II
14
Date of Hearing : 19.2.2009 and 27.7.2009
For Appellant : Mr. Yong Sie Mee,
Messrs. Loke, King, Goh & Partners Advocates,
5 Kuching.
For Respondent : Mr. Lim Heng Choo,
Messrs. Lim & Lim Advocates,
Kuching.
