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c
(Appellate Jurisdiction)
Y
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Corum:
GROUNDS OF DECISION
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1.All these three appeals, Civil Appeal Nos. W -02-965-2001, W-02-964-2001
consent of the parties it was decided that Civil Appeal No. W -02-965-2001
should be heard first and the decision in this appeal shall be binding upon the
other two appeals. This course was taken because the issues in both the
raised common issues and also had identical pleadings. The issues raised in
Civil Appeal No. W-02-90-2001 has also been raised in the other two
appeals. A similar position was also taken in the High Court below where
both cases were consolidated and it was decided that the decision in one
2.These three appeals before us had a historical significance. This panel of the
Court of Appeal was the first panel constituted to sit in the new premises of
the Court of Appeal in the Palace of Justice in Putrajaya. Hence these three
appeals were the first substantive appeals to be heard before us. We had on
16.10.2003 dismissed all these three appeals with costs and we now give our
3.The material facts leading to these appeals before us had been marshal led
with clarity by the trial Judge in his judgment which has been reported as
Fortune Wealth (Hong Kong) Limited v ÷aju Holding Sdn Bhd [2002] 3 CLJ
329. In order to avoid wholesale repetition we will only refer to the brief facts
of the case.
Bri
4.The Appellant and the Respondent entered into a call and put option
Respondent had granted to the Appellant during the call option period, the call
option to require the Respondent to sell and/or cause or procure the sale by
from all restrictions and all other encumbrances at the completion date at the
option price of R÷7.55 per share. The call option action may be exercised by
the Appellant by serving an exercise notice on the Respondent during the call
5. Under the terms of the agreement the App ellant had also granted to the
Respondent during the put option period, the put option to require the
1,646,000 shares in Ipmuda Berhad free from all restrictions and all other
share. As provided for in the agreement the put option may be exercised by
the Respondent by serving an exercise notice on the Appellant during the put
6. It is common ground that the Appellant did not exercise the call option to
purchase the 1,646,000 shares in Ipmuda Berhad when the call option period
of 12 months had expired on 20. 4.1998. The Respondent then exercised its
share.
7. The Respondent¶s exercise notice was dated 27.4.1997 and it was duly served
dated 21.4.1997 . The Appellant did not respond at all to this exercise notice
serve a letter of demand dated 13.5.1998 upon the Appellant demanding that
the Appellant purchase or cause to purchase the option shares at the total
8. The Respondent had also by letter dated 16.4.1999 addressed for the attention
of Tan Sri Abu Sahid Bin ÷ohamed, the Executive Chairman of the Appellant
and notified the Appellant that it will proceed to force sell the options shares if
no objections was received in writ ing from the Appellant within 24 hours.
with an account of the force selling of the option shares. The Appella nt¶s
solicitors did not again respond to this letter. The Respondent then instituted
9. It is clear to us that all the above letters made clear and unmistakable
reference to the agree ment dated 21.4.1997 and the Appellant did not
respond at all or challenge or dispute the Respondent¶s reliance and claims
10. After a full trial the trial judge enter judgment in favour of the Respondent for
annum with effect from 28.4.1998 to the date of realisation and costs. The
÷otion were filed by the Appellant after the Appellant¶s Counsel had
completed his opening submission and the Respondent¶s Counsel was in the
12. In the Notices of ÷otion the Appellant had prayed for an order that the affidavit
of Tan Sri Abu Said bin ÷ohammed affirmed on 15.10.2003 inc luding all
13. We had after hearing both the Appellant¶s Counsel and the Respondent¶s
Counsel dismissed both Notices of ÷otion with costs. We now give our
reasons for doing so. We formed the view that the Appellant¶s application to
adduce fresh evidence through the affidavit of Tan Sri Abu Said bin
÷ohammed did not meet the first condition that it must be shown that the
fresh evidence intended to be adduced at the appeal could not have been
14. It is trite law that there are three conditions which must be fulfilled by the
Appellant in order for fresh evidence to be admissible at the appel late stage.
The test was succinctly formulated by Suffian FJ (as he then was) in à
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15.The said three conditions are cumulative and conjunctive an d not disjunctive in
that all the conditions must be fulfilled in order for the fresh evidence to be
admissible at the hearing of the appeals in the Court of Appeal. The three
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further evidence can be admitted on special grounds only with the leave of the
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18. We found that the supporting affidavit affirmed by Tan Sri Abu Said bin
÷ohammed did not contain these relevant f acts to fulfill the requirements for
the view that the Appellant had failed to satisfy the first test as laid out in Ladd
hearing of these appeals could have been obtained from the witnesses
concerned at the trial of this action in the High Court below. We found that
with costs.
19. We now turn to the substantive appeals. The Appellant¶s Counsel had raised
two main grounds in the appeals before us. These were also the very same
grounds raised by the Appellant in the High Court below. The first is the dating
of the agreement. The Appellant submitted that when the agreement was
executed by the Appellant under the seal of the Appellant company it was
blank as to the material particulars and the particulars were entered by the
intended by both parties that the agreement was to come into force on
1.4.1997 and it is immaterial that the agreement was dated 21.4.1997. The
Appellant also alleged that the date in the agreement was fraudulently altered
by the Respondent from 1.4.1997 to 21.4.1997. The second ground
advanced is that the Respondent was not the beneficial owner of the option
shares at the material time. The beneficial owner was said to be one Koh Kim
Teck who was an agent of the Appellant. The Respondent was therefore in
20. In our judgment this appeal turns upon pure questions of fact based upon the
evidence and the credibility of witnesses who gave their evidence at the trial
together with the contemporary documentary evidence. The trial judge had
correctly addressed himself by stating that ³in making a decision on this case,
there is not much law involved but only hard facts are required´. The trial
judge had after very carefully evaluatin g the evidence of the witnesses and
agreement was in fact dated 21.4.1997 and not 1.4.1997 as alleged by the
Appellant. The trial judge also held that there was no evidence of any
fraudulent alteration of the date in the agreement. This is what the trial judge
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22. We as an appellate court will not readily interfere with the findings
of fact arrived by the court of first instance to which the law entrusts the
evidence adduced at the trial by the trier of fact or that the audio visual
advantage reserved to a trial judge had been missed or that the findings made
by the trial judge do not accord with the probabilities o f the case it would not
be open to us to intervene and upset the findings made by the trial judge. The
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23. The judgment under appeal before us does not contain any misdirection or
the appeal record and having heard the rival submissions of the parties
counsel we were fully satisfied that the learned judge had properly evaluated
the whole body of evidence adduced at the trial and had drawn proper
evidence adduced in the case. The learned Judge had come to correct
findings of fact on the issues before him and had done all that was required of
us.
24. We had also taken a second hard and careful look at the entire case before
us. We are satisfied that the Appellant had benefited from the call and put
option agreements entered into with the Respondent. In fact the evidence of
the Appellant¶s own witn ess DW3 ÷r Christopher S. Y. Chew who was the
÷anaging Director of IPU Sdn Bhd in the ÷aju Group of Companies had
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25. It was manifestly clear to us that under the various call and put option
money upfront. Tan Sri Abu Sahid ÷ohamed also received the payment of
unconscionable for the Appellant not to honour its obligations to purchase the
options shares under the call and put option agreements entered into with th e
into.
26. The trial judge had rightly entered interlocutory judgment in favour of Regalion
also ordered that the Senior Assistant Registrar or the Deputy Registrar of the
High Court to proceed to formally assess the general damages and/or other
has been entered the question of liabi lity of the Appellant to Regalion
agitated by the Appellant during the assessment of damages. The duty of the
involving the calculation of the total option price of the option shares and
27. We had therefore dismissed the above three appeals with costs. We also
affirmed the judgments of the Learned Judge below and the orders mad e by
him.
28.÷y learned brothers, Hashim bin Yusoff and Tengku Baharudin Shah bin
Tengku ÷ahmud JCAs have read the draft and consented to it.
÷alaysia
Peguamcara Perayu:
(Ruj: ÷HSB/4/÷I/GS)
En. V. Sithambaram
Peguamcara Responden
(Ruj: VKL/L/1049/2000)