Gopal Sri Ram JCA:

[1]This is the Judgment of the Court.

[2] This appeal is directed against the order of the High Court at Kota Kinabalu allowing the respondents' claim against the appellants. The facts which constitute the background to this appeal may be shortly stated.

[3]There is a company called Tunggak Makmur Sdn Bhd. It is the 1st defendant in the court below. The 8 plaintiffs were its shareholders. Each held a different number of shares. They entered into three agreements namely exh. P2 dated 23 July 1994, exh. D3 dated 13 September 1994, and exh. D4 dated 23 September 1994 with the 2nd and 3rd defendants to sell their shares to the latter. The total purchase price was about RM700,000. According to these defendants they paid for the purchase price and then sold the shares to the 4th, 5th and 6th defendants. Later, the plaintiffs brought an action for the recovery of shares on the ground that they had not been paid for. A number of issues were framed by the parties before the learned trial judge. However, only one has survived before us in this appeal as being relevant for its disposal. That issue is whether payment had been made by the 2nd and 3rd defendants to the plaintiffs. If it had been, then that is the end of the question. If not then the sale by these defendants to the 4th, 5th and 6th defendants may, of course, constitute the tort of conversion. We say "may" advisedly because it is settled law that shares in a company are goods and the property in goods in the absence of a contrary intention pass when the contract for sale is made. This is made clear by s. 20 of the Sale of Goods Act 1957. In that event the subsequent sale without making payment to the vendor would not be conversion.

[4]We now turn to address the all important issue, that is to say, whether the learned judge was correct in holding that payment had not been made. This is what she said on that point:

However, in the 2nd and 3rd Defendants' written submission, a total sum of RM583,740.85 had been paid to the 1st, 2nd, 3rd, 4th and 5th Plaintiffs which contradict the figures shown in the 2nd and 3rd Defendants' payment vouchers and receipts. Besides that, based on the evidence of DW1 at p. 236 Notes of Proceeding, DW1 is claiming that the 2nd and 3rd Defendant had paid to the 1st, 2nd, 3rd, 4th and 5th Plaintiffs a total sum of RM634,239.85 under P2 which also does not tally with the 2nd and 3rd Defendants' own payment vouchers and receipts.

Therefore, as doubt's arise as to the actual purchase price paid under P2, D3 and D4, the doubt should be resolved in favour of the Plaintiffs by virtue of the contra preferentum rule as P2, D3 and D4 and the payment vouchers and receipts and letters of confirming receipt of full payment were prepared by DW1 and DW2.

In the light of the aforesaid, I can say that the 2nd and 3rd Defendants have failed to discharge their burden on this issue. Therefore, I hereby conclude that the answer to this issue (3) must be in the Negative ie, that the 2nd and 3rd Defendants fail to pay the purchase price fully in accordance with Agreements P2, D3 and D4 to the 1st, 2nd 3rd, 4th, 5th and 8th Plaintiffs.

[5]The primary complaint of the defendants before us is that the learned judge failed to judicially appreciate the totality of the evidence when arriving at her conclusion. Now, it is not in dispute that well before the action came on for trial advocates for the defendants forwarded to the advocates of the plaintiffs copies of all the relevant payment vouchers and acknowledgements when making disclosure of their clients' case. Between then and the commencement of the trial none of the plaintiffs alleged that these documents, which were later produced as exhibits at the trial, were forgeries. It was only when the plaintiffs gave their evidence that the assertion was made that the vouchers evidencing payment were not signed by them. But the matter was pursued no further. No material was placed before the learned judg