JUDGMENT

Salleh Abas CJ (Malaya):

Felda is a statutory authority created by Land Development Ordinance 1956, whose object according to the long title is "to open and carry out projects for land development and settlement ..." in connection with its land Scheme at Sungai Retang, Jerantut, Pahang, it entered into a written agreement with a firm called Seng Kwee Company (referred to in this judgment as "the Contractor") on 26 March 1974 for the weeding and maintenance of the Scheme. The agreement contained a provision against sub-contracting in the following terms:

14. The Contractor shall not without the written consent of the Chairman first obtained assign this Contract or sub-contract all or any portion of the Works; provided that such consent shall not be unreasonably withheld to the prejudice of the Contractor. In the event of all or any portion of the Works being sub-contracted with the written consent of the Chairman the Contractor shall be solely and personally responsible for the due observance by such authorised sub-contractors of all the terms, stipulations and Conditions herein expressed.

Unknown to Felda, and without its permission, the work was subcontracted to one Hiew Pin Lee @ Siew Pin Leong (referred to as "the sub-contractor"). Amongst the workers employed by the sub-contractor was one Nordin bin Abdullah (the deceased). He and his fellow workers lived in a kongsi-house built on the Scheme by either the contractor or the sub-contractor.

On the night of 9 July 1974 the kongsi-house collapsed and the deceased was killed in that mishap. He left eight dependants, namely his widow and seven children, four of whom were very young. These dependants sued the contractor, the sub-contractor and Felda under s. 7 of the Civil Law Act 1956 (Revised-1972). Act 67, for loss of dependancy and support.

On the date of the trial the contractor and sub-contractor were missing. The contractor's Counsel who was present asked the Court for his discharge from the case. After this Counsel had obtained the discharge and a judgment in default against the two missing defendants having been entered, the trial then proceeded against Felda, the remaining defendant.

The cause of action is liability under general doctrine of negligence in that Felda failed to provide a safe kongsi-house and also under a special subhead of negligence as an occupier/owner of the Scheme.

The learned trial Judge held Felda liable and accordingly entered judgment for the deceased's dependants in the sum of RM28,000 of which RM7,000 was a pre-trial loss of dependency, plus interest which is at 4% per annum on the RM7,000 from the date of the service of the suit to the date of judgment and thereafter at 8% per annum on the total amount till realisation.

The appeal is only confined to the question of liability. Counsel for Felda submitted to us that the kongsi-house collapsed because of whirlwind. He, therefore, pleaded Act of God. We cannot accept this submission. We think that the finding of the learned trial Judge that there was no satisfactory evidence led on this point is correct and cannot be impugned. Mr. Bong Bon Kong, Felda's manager for this Scheme certainly had no personal knowledge of the matter. In his evidence he said this:

I was told by my staff that there was a whirlwind at the vicinity of the Scheme.

This evidence is clearly hearsay and was therefore rightly rejected by the learned trial Judge. The next evidence which Counsel relied upon is a police report lodged by one Malayan s/o Munusamy (Jerantut Police Report No. 757/74) to the effect that there was "the sound of loud wind and rain" in that night. But this document was not agreed to by the plaintiff. Therefore, nothing short of calling its reporter could make it admissible. Hence there is no evidence upon which the defence of Act of God could stand.

As to the issue of negligence, Felda did not know that the contractor in breach of the agreement with Felda had sub-contracted the work. Counsel for Felda, there