JUDGMENTBY: EDGAR JOSEPH JR FCJ

EDGAR JOSEPH JR FCJ The issues in the action, which led up to this appeal, may be summarized thus:

8 November 1995

(1) Did the respondents to this appeal, who are both brothers and the registered proprietors of certain land comprised in Lot 532, Mukim 7, Daerah Seberang Perai Selatan, in area four acres three roods 0.5 poles (the land) authorize Messrs CP Ang & Co, Advocates and Solicitors, to conclude a contract of sale and purchase, in respect of the same, on behalf of the respondents and in favour of the appellants who are also both brothers?

(2) If not, whether it could be reasonably inferred, from the evidence of the surrounding circumstances, that the respondents had ratified the unauthorized bargain struck by Messrs CP Ang & Co?

In the court below, the judge answered the first question in favour of the respondents and dismissed the appellants suit for specific performance of the contract of sale and purchase of the land. However, he did not answer the second question. From the whole of that decision, the present appeal has been brought.

It would be more convenient if I were to refer to the appellants, as the first and second plaintiffs, and the respondents, as the first and second defendants, respectively, unless the context otherwise requires.

Before us, the whole of the material evidence was carefully examined, and it is therefore unnecessary to discuss it again at any length.

Suffice it to say, that it is a question of fact in each case, whether a solicitor has actual or ostensible authority, to bind his client contractually. His authority is limited by his instructions -- also a question of fact -- and the burden of proof of establishing such authority, in common with all cases of agency, must rest on the party alleging the agency.

Clearly, therefore, this was an appeal against findings of fact which turned, to some extent, upon the credibility of the parties and their witnesses, and also on inferences to be drawn from the primary facts.

I was, therefore, mindful of the principles enunciated by their Lordships of the judicial committee of the Privy Council as long ago as 1912 in Khoo Sit Hoh v Lim Thean Tong [1912] AC 323 , and Benmax v Austin Motor Co [1955] AC 370 ; [1955] 1 All ER 326; [1955] 2 WLR 418 , applied by the majority in Sundram v Arujunan & Anor [1994] 3 MLJ 361 .

In Khoo Sit Hoh, their Lordships said this (at p 325, para 2):

The case was tried before the judge alone; it turned entirely on

questions of fact, and there was plain perjury on one side or the

other. Their Lordships board are therefore called upon, as were also

the Court of Appeal, to express an opinion on the credibility of

conflicting witnesses whom they have not seen, heard, or questioned. In

coming to a conclusion on such an issue their Lordships must of

necessity be greatly influenced by the opinion of the learned trial

judge, whose judgment is itself under review. He sees the demeanour of

the witnesses, and can estimate their intelligence, position, and

character in a way not open to the courts who deal with later stages of

the case. Moreover, in cases like the present, where those courts have

only his note of the evidence to work upon, there are many points

which, owing to the brevity of the note, may appear to have been

imperfectly or ambiguously dealt with in the evidence, and yet were

elucidated to the judges satisfaction at the trial, either by his own

questions or by the explanations of counsel given in presence of the

parties. Of course, it may be that in deciding between witnesses he has

clearly failed on some point to take account of particular

circumstances or probabilities material to an estimate of the evidence,

or has given credence to testimony, perhaps plausibly put forward,

which turns out on more careful analysis to be substantially

inconsistent w

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