JUDGMENTBY: MATHEW CJ, HILL J

MATHEW CJ (with whom Spenser Wilkinson J. agreed): -- This is a claim for specific performance of an agreement for the sale of a parcel of land in a Malay Reservation. Included in the agreement was a provision that if the transfer of the land was not effected a penalty would be paid. The points for decision were:--

(a) did the defendant-respondent make the agreement for sale?

(b) if so, was the plaintiff-appellant entitled to Specific

performance or to damages?

The defence simply was that the agreement for sale was a forgery. There was much evidence given during the hearing of the case to the effect that the agreement for sale was part of a loan transaction. The learned trial Judge (quoting from his judgment) found:--

"That the document sued upon is genuine in the sense that it was

written out on the date which it purports to bear and that it was

signed by the defendant after it was written."

and came to the conclusion that the document sued on was not a contract for the sale of land, but was a contract relating to and connected with a loan made by the plaintiff either to the defendant or to somebody else for whom the defendant stood surety. As a result, the learned trial judge entered judgment for the plaintiff for $ 3,000 and costs. It is against this finding that the appeal is mainly directed.

Nowhere in the pleadings is it alleged that the agreement was in the nature of a document of loan, and the case never proceeded on that basis. In my view, once he had found that the agreement for sale was a genuine document, the learned trial Judge had no alternative but to order specific performance of the agreement or to award damages. I think it is clear that a Judge is bound to decide a case on the issues on the record and that if there are other questions they must be placed on the record, which in this case they were not, Blay v Pollard & Morris (1930) 1 KB 628 (at page 634).

In my view, had the learned trial Judge not regarded the agreement as in the nature of a loan transaction and had directed his mind to the issue whether the order should be for specific performance or for damages, he would have come to the conclusion that an order for specific performance was the proper remedy.

I would allow this appeal with costs and order that judgment be entered for the appellant for specific performance of the agreement annexed to the plaint, and further order that the respondent do execute a valid and registrable transfer of the land in question in the appellants favour. The deposit will be paid to the appellants Solicitors.

HILL J In the lower Court the plaintiff-appellant sued for specific performance on the following document:--

1 July, 1952.

Whereas on the date abovementioned I Sakiman bin Abdullah, I.C. Pk. No.

701666 have executed an agreement to be held by Haji Mohamed Dom bin

Haji Mohd. to the effect that I, Sakiman bin Abdullah have sold my land

E.M.R. 2623 Mukim Rungkup in area 4 acres 3. 34 Lot No. 2390 for $ 3,

000 (dollars three thousand). This money was received by Sakiman in

full. The transfer to take place after 3 months. If I, Sakiman, refuse

to transfer the land to Haji Mohamed Dom I, Sakiman have to pay

compensation to Haji Mohd. Dom as much as $ 6,000 in all (six thousand

dollars).

This I, Sakiman, affix my signature hereunder and duly witnessed.

Witness Signature of Seller

Sd. Arshad. Sd. Sakiman.

It is perhaps convenient to repeat here the main part of the defence:--

Defendant says that on or about the 25th August, 1951, he at the

request of the plaintiff signed his name as a witness to the signatures

of one Mohamed Tahir the brother in law of the defendant on a document

purporting to have been written in Romanised Malay and stated by the

plaintiff to be the acknowledgment of a debt of $ 3,000 advanced by

the plaintiff to the said M

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