Wan Hamzah SCJ:

[1] The first respondent/plaintiff had alleged that he had been induced by false and fraudulent misrepresentations by Mahesan, solicitor acting for and on behalf of the appellant to vacate a shop where he was running a hair-dressing saloon and of which he was the lawful tenant of the appellant. His claim was for certain declarations and for damages including exemplary damages for fraud.

[2] Briefly, the first respondent alleged that some time in April 1984 the appellant had expressed an intention to obtain vacant possession of the premises earlier mentioned. The appellant then instructed Mahesan to act on its behalf and inter alia to negotiate with the first respondent in order to obtain vacant possession. On 28 April 1984 Mahesan allegedly made oral representation to the first respondent that the appellant would pay RM170,000 to him if he would close down his business and deliver vacant possession on or before July 1984. Acting in belief of such representation by Mahesan, the 1st respondent had on or about 30 July 1984 taken steps to close down his business at the premises, whilst retaining possession of the key to the main door.

[3] The 1st respondent contended that the representation made by Mr Mahesan was made falsely and fraudulently and for the purpose of only causing him to close down his business and lock-up the premises so that the appellant could unlawfully break into the premises and take unlawful possession thereof. In the alternative, the 1st respondent contended that the alleged oral representation made by Mahesan constituted a collateral contract or warranty by the appellant operating as a condition precedent upon the strength of which the 1st respondent had acted to his detriment.

[4] He therefore claimed that the refusal by the appellant to pay compensation for damages amounted to a breach of the term of the collateral contract or warranty, so that the condition precedent to his giving up vacant possession had failed.

[5] He also claimed for exemplary damages.

[6] The substance of the defence was that the 1st respondent had vacated the premises voluntarily because business was poor. The appellant had stated in his defence that the 1st respondent was in arrears of rental in consequence of which he had received a notice to quit on 27 April 1984 and that his closing down of the premises was in compliance with such notice. The appellant also denied that it or its solicitors had promised the 1st respondent to pay RM170,000 or any sum as compensation. We agree with Raja Aziz that the main issue before the Judge is:

(1) whether the alleged false and fraudulent misrepresentation has been made by appellant's solicitor - Mahesan - and in that connection whether the 1st respondent was induced thereby to vacate the premises, and

(2) depending on this Court's view of the representation, whether there had been a collateral contract or warranty.

[8] It is trite law that an appellate Court would in appropriate cases act upon its own view of conflicting evidence (see Coghlan v. Cumberland [1898] 1 Ch D 704 and Bigsby v. Dickinson [1876] 4 Ch D 24, and it was argued on behalf of the appellant that the Judge had overlooked certain evidence which might otherwise have caused him to come to a different finding.

3

It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents to the witness' motives, and to the overall probabilities can be of very great assistance to a Judge in ascertaing the truth.

[10] In commercial cases there is usually a substantial body