Richard Malanjum JCA:

Introduction

Before us is an appeal against the decision of the High Court sitting at Temerloh, Pahang granting the respondent the following orders, namely:

(1) The 2nd defendant (that is the Appellant before us) is to effect the retransfer of the land to the plaintiff failing which Assistant Registrar of High Court Temerloh shall execute all relevant documents necessary to carry out into effect the retransfer. The 2nd defendant shall repay the full consideration (RM32,000) for the sale of the land to the 2nd defendant. The interests 8% p.a. shall be imposed on the consideration from the date of transfer (6/6/83) to final payment.

(2) The 1st defendant shall pay the costs of this suit to plaintiff and 2nd defendant.

Unfortunately no written judgment was rendered by the learned judge prior to his retirement.

What we have before us now are the Notes of Proceeding and some of the documents tendered during the trial. Hence when the appeal came up for hearing we were tempted to promptly order a retrial.

But on further perusal of the Appeal Record and having heard the submissions of learned counsel for the parties including the fact that they left it to this court to decide on the issue of retrial but at the same time stating the disadvantages of having it, we were and are convinced that basically the primary issues involved are questions of law requiring no or minimum findings on disputed facts. And even on factual matrix we are of the view that demeanour of witnesses plays no or minimal role. Hence the question of absence of appreciation of the evidence by the trial Judge should hardly arise.

In our view the undisputed facts and admitted facts together with the documentary evidence tendered during the trial are more than sufficient materials upon which the answers to the issues raised by the respective parties could be found thereby determining the fate of the orders granted by the trial court. Indeed neither of the parties ever raised the issue of being prejudiced by the absence of a written judgment from the trial court. And for that we are reminded of what Edgar Joseph Jr. SCJ said in Dewan Undangan Negeri Kelantan & Anor v. Nordin Salleh & Anor[1992] 2 CLJ 1125; [1992] 1 CLJ (Rep) 72:

A denial of the opportunity of being heard is a wrong which is personal to the party aggrieved. If therefore such a party does not complain, it is not the affairs of others to complain.

Further, we are conscious of the fact that the respondent is now an old man of over 90 years. A retrial would therefore serve no purpose other than to cause further delay and injustice to the parties since the case was filed in 1986. Thus, for the foregoing reasons we find no valid ground to order a retrial.

The Background Facts

This is rather a sad and unfortunate case. The basic facts of this case as we can gather from the Notes of Proceeding and the documents available are as follows.

The respondent is an illiterate old man. He had a piece of land held under EMR 434, Lot No. 905 measuring a little over 3 acres ('the subject land'). It is situated in Karak, in the Mukim of Sabai, Bentong District, in the State of Pahang.

Sometime in 1981 he was approached by one Simanca a/l Juggiah together with a person by the name of Marimuthu s/o K. Pallaniappan who is the 1st defendant in this case. The meeting was in connection with the interest of the 1st defendant to develop the subject land into a housing estate. The respondent agreed with the proposal. An agreement ('the agreement') was therefore executed between the respondent and the 1st defendant in which the former would be allotted 'a net figure of 20% of all the completed units with shop houses, terrace and semi detached houses'.

Although acknowledging that he did affix his thumb prints on the agreement in 1981, the respondent said that the contents thereof were never explained to him. He denied ever meeting any lawyer in Kuala Lumpur to sign any document. He also said that he neve