COURT OF APPEAL, PUTRAJAYA MOHD ZAWAWI SALLEH JCA, IDRUS HARUN JCA, PRASAD SANDOSHAM ABRAHAM JCA
TOPIC Judicial notice
FACTS OF THE CASE The appellant entered into a sale and purchase agreement with the respondent for the purchase of a house. The appellant made some payments but failed to settle in full the outstanding balance resulting the respondent proceeding to sell the property by way of public auction. The successful bidder and the respondent entered into a memorandum of a sale of property with a condition that the bidder needs to pay 10% of the purchase price to the respondent with the balance to be settled within 120 days from the date of sale of the property. Subsequently, the appellant filed a notice of application to stay of the execution by the respondent and the bidder of the memorandum of sale of the property until final disposal of the application and a revocation and setting aside of the memorandum. The High Court judge dismissed the application and the appellant appealed. The appellant submitted that the successful bidder failed to comply with the condition of sale which required payment of balance of the purchase price to be made within 120 days from the date of the sale of property, thus such failure to comply with the condition of sale cause the memorandum of sale to lapse and become null and void. The respondent merely denied the said allegation as no evidence has been proffered by the respondent in its affidavit stating that the bidder had actually paid the full balance of purchase price and had never made any attempt to rebut the contention. However, the learned judge had on his own motion took judicial notice to admit in evidence a certificate confirming that the respondent had received the whole payment from the successful bidder before the expiry of 120 days. Note that the respondent did not exhibit the certificate in affidavit. ISSUE Whether certificate confirming full payment in sale of land are subject of common and general knowledge or sufficiently notoriety attached thus are correctly admitted as judicial notice. JUDGEMENT The judge referred to Pembangunan Maha Murni Sdn Bhd v Jururus Ladang Sdn Bhd (1985), stated that the general rule is that all facts in issue and relevant facts must be proved by evidence. However, there are two facts which need not to be proved which are admitted facts or of which the court will take judicial notice. Section 56 of the Evidence Act deals with the facts that the court will take judicial notice while Section 57 of the same Act enumerates facts which the court shall take judicial notice. The court satisfied that the Certificate does not fall within any of the class of facts which the court shall take judicial notice under section 57, thus it is necessary to consider whether the certificate falls under section 56. In law, the matters which the court may take judicial notice must be subject of common and general knowledge and its existence is accepted by public. The test is whether sufficient notoriety is attached to the fact to make it proper to assume its existence without proof. (Lee Chow Meng v Public Prosecutor (1975)). In the present case, the certificate was only known to the judge and there was nothing notorious about the certificate. Thus, it does not pass the test. Accordingly, the judge had erroneously admitted the certificate in evidence when the doctrine of judicial notice clearly did not apply. Cases must be decided on the evidence and that evidence must be such as is relevant and admissible under the Evidence Act 1950, that is, it must be either from admitted documents or the statement of witnesses or be something of which the court can take judicial notice. The judge could not without giving evidence as a witness import into a case his own personal knowledge of particular facts so as to help out evidence for the respondent which would otherwise be inadequate to rebut the appellant's case.