Ramly Ali J:

The plaintiff's claim against the defendant is for a sum of RM3.6 million being the balance of a purchase price for the sale of 25 pieces of land (the properties). By two written sale and purchase agreements (SPA) both dated 5 June 1996, the plaintiff agreed to sell and the 1st defendant agreed to purchase the properties at a purchase price of RM4 million. Based on the terms of the SPA, the 1st defendant paid 10% of the purchase price amounting to RM400,000, immediately upon signing the agreements. It is an express term of the SPA that the balance purchase price amouting to RM3.6 million was to be paid by the 1st defendant to the 2nd defendant as stakeholder within three months from the date of consent from the relevant State Authority. The relevant State Authority consent had been obtained on or before 11 September 1996 and the balance purchase price was to be deposited with the 2nd defendant as stakeholder by 11 December 1996.

Also pursuant to the SPA, the 2nd defendant as stakeholder expressly undertook not to present the memorandum of transfer which was duly executed by the plaintiff in respect of the said properties until the balance purchase price of RM3.6 million was paid in full by the 1st defendant to the 2nd defendant. The plaintiff alleged that, in breach of the terms of the SPA the 2nd defendant presented the memorandum of transfer together with all the relevant documents for registration and subsequently transferred the said properties to the 1st defendant notwithstanding that the balance purchase price of RM3.6 million had yet to be paid by the 1st defendant. Plaintiff also alleged that, despite numerous reminders, the 1st defendant and the 2nd defendant has failed to pay the balance purchase price of RM3.6 million.

Additionally, the plaintiff's claim against the 2nd defendant is for breach of their duties as stakeholder in that they had failed to ensure that the balance purchase price had been paid into their account before proceeding to present for transfer the properties to the 1st defendant's name. The 2nd defendant, has successfully brought in a 3rd party to the present proceeding, who at the material time, was a managing director of the 1st defendant, claiming inter alia, that it was the 3rd party who informed the 2nd defendant that the purchase price had been fully settled and it was the 3rd party who instructed the 2nd defendant to affect the transfer.

The plaintiff started his case by calling the first witness (PW1) who is the plaintiff himself. After PW1 has given evidence, the plaintiff's counsel tendered a witness statement of the proposed 2nd witness, who is a practicing advocate and solicitor, intending to call her as the plaintiff's 2nd witness at the trial. The counsel for the 2nd defendant objected strongly to the proposed witness being called as well as her witness statement which she affirmed on 8 April 2003 being admitted, on the following grounds:

i) that the proposed witness is in no way connected with or involved in the relevant transaction;

ii) that her evidence or statements as appear in the witness statement clearly show that she was attempting to interpret and construe the contractual terms and conditions of the agreement or contract which is the subject matter of this action;

iii) that the construction of documents is a matter of law to which is a question solely to be decided by the court;

iv) that the proposed witness evidence (as contained in the witness statement) is purely a matter of opinion of a 3rd party who is in no way connected to the dispute at hand, and therefore inadmissible.

The counsel for the 1st defendant and 3rd party also objected to the plaintiff's attempt to call his proposed 2nd witness on the ground, inter alia, that the said proposed witness does not qualify as an expert within the provisions of s. 45-54 of the Evidence Act 1950.

The plaintiff's counsel conceded that the proposed 2nd witness is in no way connected with or involved in the t