JUDGMENT

1. The appellants, a builder, had a contract to build the District Health Clinic (hereinafter called the "DHC Project") Sri Aman District, vide Contract No. PWD/HO/B24/1989, for RM939,414.80 (inclusive of variations), which work was subcontracted to the respondent, an electrical contractor. The appellants claimed that a 5% commission was imposed as a consideration for giving the work to the respondent and was deductible from the contract sum. The appellants had paid and the respondent had received a sum of RM880,882.60 in respect of the work. However the respondent denied that he had agreed to the 5% commission and claimed that a balance of RM58,532.20 was still due and owing. Thus he brought a suit against the appellants for the recovery of the said sum, and the Sessions Court gave judgment in his favour. The appellants now appealed against that decision. [2]

2. The business association between the builder and the electrical contractor had long been established over a period which extends to well over 18 years, and over 20 projects that had been successfully completed. Over the years everything seemed to have worked well, each party doing its work which complement each other. The business arrangements were less than formal like in the days of yore an exemplar of what became an old gentre, where the relationship was based wholly on trust. Invariably all negotiations or agreements which were brought to a consensus was orally concluded. Each man's word is his bond. In past projects or dealings, the parties had on occasions agreed on a commission or kickback, at no fixed rate, a variable rate between 2% to 10%, and it is also true that there were cases where there had been no commission at all. It is in this latter group that the present case falls; and the respondent categorically denied that he had ever agreed on a 5% commission in respect of the DHC project.

3. The sole issue in this appeal is whether or not the respondent had agreed to the 5% commission.

4. In the lower court, the trial Sessions Court Judge ruled that -

a) the sub contract price was RM939,414.80; and

b) there was no agreement between the parties to deduct 5% commission.

5. There is no dispute as to (a) above.

6. As to (b) it is to be noted that there was no written agreement between the parties. There was no negotiation either at the commencement or the end of the project. The onus of proof is upon the appellants to prove - that there was an agreement between the parties to deduct 5% commission. See Section 103 of the Evidence Act 1950. Admittedly it is no easy task for the appellants to convince the court that the parties had agreed on the 5% commission in respect of the DHC project.

7. The principles on which an appellate court should act in reviewing finding of fact are pronounced by a host of authorities. In Mulkh Raj Sharma v. Shanti Sroop(1983) 2 MLJ 396 the Federal Court cited the case of Chow Yee Wah & Anor. v. Choo Ah Pat(1978) 2 MLJ 41 where the same court held that [3]

"In face of that finding by the trial judge on the question of fact the Federal Court were only entitled to displace his conclusion if they were satisfied that his view was plainly wrong and that any advantage which he enjoyed by having seen and heard the witnesses was not sufficient to explain his conclusion ...."

8. See also Murugan v. Lew Chu Cheong(1980) 2 MLJ 139 (FC). In a very recent Court of Appeal case of Sivalingam a/l Periasamy v. Periasamy(1995) 3 MLJ 395 the Court held that -

"It is trite law that an appellate court will not readily interfere with the findings of fact arrived at by the trial court to which the law entrusts the primary task of evaluation of the evidence. However, the appellate court has a duty to intervene where a trial court has so fundamentally misdirected itself, that one may say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion."

9. In Choo Kok Beng v. Choo Ko