Brakbah LP:

The plaintiff obtained judgment against the defendant in Sungei Patani Sessions Court Civil ActionNo. 22 of 1963 and in execution of the decree attached house No. 7-B, Kampong Bharu, Lunas. Chew Seok Tee, a Chinese lady (hereinafter called the objector) objected to the attachment on the ground that she was the owner of the sgd house. She gave evidence before the Sessions Court that on 25 June 1962, she purchased the house from the defendant who gave her a document of sale (Exh. P1). The learned president dismissed her objection. She then appealed to the High Court which allowed her appeal. The plaintiff now appeals to this Court.

The appeal was heard in Penang and we dismissed it, intimating that we would give written judgment later and we now do so.

The main ground of appeal is whether the building is a "Personal chattel" as defined under s. 3 of the Bills of Sale Ordinance, 1950. The learned Judge held that it was not a "personal chattel" and therefore Exh. P1 was not a bill of sale and s. 10 of the said Ordinance did not apply. With respect I agree with the learned Judge. Exh. P1 is a document acknowledging receipt of the purchase price of $2,500 and stating that the objector is the rightful owner of houseNo. 7-B, Kampong Bharu, Lunas, Kedah. It was purchased on 25 June 1962, from the defendant, nearly two years before the plaintiff obtained a decree against the defendant. Exh. P1 was properly stamped and on 26 June, 1962, it was submitted to the chairman of the Lunas Local Council together with an application for transfer (Exh. P2) and on 27 June 1962, the said application was approved and such approval was endorsed on Exh. P2. A clerk of the Lunas Local Council produced these exhibits in Court and testified that the objector became the owner of the said premises and paid all rates and assessments. According to the objector, her daughter lived in the said house and at times she also lived there. Her evidence was not contradicted.

In his judgment the learned Judge commented upon the conduct of the president, sessions Court, who took upon himself the task of procuring further evidence for the parties, after the objector had closed her case and no evidence was adduced by the plaintiff and no witness called by him. The learned president himself called one Mohamed Bakhtin bin Haji Salleh and examined him at length. The learned Judge held that such practice was highly undesirable and could lead to a miscarriage of justice. I am in full agreement with him. It was held in Re Enoch and Zaretzky, Bock & Co's Arbitration [1910] 1 KB 327 that:-

Neither a Judge nor an umpire has any right to call a witness in a civil action without the consent of the parties."

And in the case of Jones v. National Coal Board [1957] 2 QB 55, 64. Denning LJ (as he then was) said:-

So firmly is all this established in our law that the Judge in not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties:"

In my opinion the learned Judge had come to the right decision in allowing the appeal of the objector and the appeal by the appellant to this Court was therefore dismissed with costs here and in the Courts below.

JUDGMENT

Azmi CJ (Malaya) :

I had the opportunity of reading the judgment of my lord the Lord President with which I wholly agree but I would like, however, to say a bit more.

Even assuming that the house was a chattel, which is doubtful, but on looking at the whole transaction in this case and the document Exh. P1, there cannot be any doubt that immediately after the transaction was completed and the document executed, the objector went into possession of the house and for that reason in my view the transaction and the document relating to it are not affected by the Bills of Sale Ordinance. The appeal should therefore be dismissed with costs here and in the Court below. Deposit to respondent towards taxed costs.