Mokhtar Sidin JCA:

In this appeal the appellant, a limited company, filed an action against the two respondents for specific performance of a purported sale and purchase agreement. The first respondent is Saw Eng Chee, the administrator of the estate of Saw Cheng Chor and the second respondent, Quah Siew Yaong @ Guah Siew Yong and Saw Lip Peng @ Saw An Peng, the executors of the estate of Saw Eng Cheong.

Saw Eng Chor and Saw Eng Cheong (both deceased) were brothers. They were the co-proprietors of a piece of land held under State Lease No. 680 Lot 5020, Mukim of Lumut (hereinafter referred to as "the said land") comprising of an area of some six acres. It has a sea frontage and a jetty. Adjoining to the said land was a piece of land occupied by the appellant. It is common ground that the appellant was desirous in acquiring the said land. The deceased also owned three pieces of land (a total area of about fourteen acres) adjoining the said land (hereinafter referred to as "the other three pieces of land"). Sometime in 1978 the deceased, Saw Eng Cheong, offered to sell the said land to the appellant at the price of RM50,000 per acre. The offer was made to one Teh Liang Teik, the managing director of the appellant. For some reasons best known to the parties the sale did not go through. At the end of 1978 the deceased, Saw Eng Chor, offered to sell the said land to the appellant for the sum of RM350,000 and the other three pieces of land for an additional sum of RM120,000. Again the transaction failed to materialise. On 12 January 1979, Teh Liang Teik received an offer by way of a telex from Messrs. Ngan & Tan for the sale of the said land. The telex reads as follows:

1. We confirm our clients Saw Eng Cheong and Saw Cheng Chor's offer to sell you State Lease No. 680 Lot 5020 Mukim Lumut in area 6 acres. Upon the following conditions:

(i) Total price is RM350,000/- payable within one month as follows:

(a) RM 250,000/- cash

(b) RM 100,000/- shares in Dindings and Feedmill Sdn Bhd

2. Permanent right of way of 66 feet width parallel to sea frontage to be granted to Ban Joo Seng Chan Sdn. Bhd.

Confirm if you accept this offer on or before 15th January, 1979.

The appellant did nothing to this offer until the 15 January, ie, the last day for the appellant to accept the offer. On that day, Teh Liang Teik, Lee Soon Lee (another director of the appellant) and Mr. Tang Khai Kit (the solicitor for the appellant) went to see Saw Cheng Chor at the latter's office in Sitiawan. In that office the parties discussed the sale of the said land and the other three pieces of land which were offered to the appellant at the end of 1978. From the evidence the price offered for the three lots was RM120,000 thus making the total sale price of RM470,000 for the said four pieces of land.

After the parties met and negotiated for the sale and purchase of the properties, Mr. Tang Khai Kit and Saw Eng Chee (Saw Cheng Chor's son) went over to the office of Messrs. Ngan & Tan, which was across the road to draw up a formal offer in respect of the sale and purchase of those properties. At the office of Messrs. Ngan & Tan, one Ms. Cheng Hong Eng, the solicitor acting for Saw Cheng Chor, prepared a letter of offer from the respondents which was produced in evidence and reads:

M/s Malayan Flour Mills Berhad

Chartered Bank Building

9th Floor, Jalan Ampang

Kuala Lumpur.

Dear Sirs,

Re: Disposal of land held under

(1) State Lease No. 680 Lot 5020 in area 6a. Or. OOp.;

(2) Q.T.(R) Dgs. 234/71 Lot 5342 in area 4.2372 acres;

(3) Q.T.(R) Dgs. 233/71 Lot 5341 in area 6.6639 acres;

(4) Q.T.(R) Dgs. 232/71 Lot 5340 in area 3.7116 acres

__________________________________________________

We act for Messrs. Saw Cheng Chor and Saw Eng Cheong both of No. 17, Lumut Road, Sitiawan, Perak.

We confirm that our clients are the registered owners of the above mentioned land itemised (1). We further confirm our clients are the only partners in the firm known as SYARIKAT BAN JOO SENG C