I. APPEAL

II. This is an appeal by the appellant defendant ("defendant") against the decision of the learned sessions court judge ("sessions court") who had on 20 October 2000 given judgment in the sum of S$28,206.34 and costs in favour of the respondents plaintiffs ("plaintiffs").

III. FACTS OF THE CASE

The grounds of decision delivered by the sessions court did set out in some detail the finding of facts. The facts are quite simple and straight- forward. The plaintiffs are Singaporean citizens who frequently visited Melaka as tourists as well as customers in the defendant's restaurant, as a result of which they became good friends.

Defendant had a 20-year old daughter by the name of Juliet. The defendant told the plaintiffs that Juliet was suffering from the disease of "foot dropped" i.e. limping which required expensive weekly injections but without visible improvement.

Pursuant to plaintiffs' suggestion, defendant sent Juliet to two hospitals viz. Mount Alvernia and Gleneagles in Singapore for medical treatment. In view of the fact that the defendant was in financial straits and on the defendant's promise to repay the plaintiffs after the defendant has received insurance claims for Juliet, the plaintiffs had on behalf of the defendant made advance payment in settlement of the medical bills incurred in the treatment of Juliet.

Unfortunately, death befell Juliet. Nevertheless, Juliet's medical bills were settled by the plaintiffs. Although the defendant has received her insurance claims from American International Assurance resulting from Juliet's death, the defendant has failed to repay the plaintiffs. Hence, the plaintiffs' action herein to recover the payment advanced on behalf of the defendant.

The defendant denied the debt due to the plaintiffs as, according to the defendant, the plaintiffs have told the defendant that the medical treatment for Juliet in Singapore was complimentary and that the defendant would not have sent Juliet for treatment there if it had been otherwise. The defendant stressed she had sent Juliet for treatment in Singapore as a result of the plaintiffs' promises and that the defendant did believe that the treatment there was indeed complimentary. The defendant added that as soon as she knew she was unable to obtain complimentary treatment for Juliet, the defendant immediately obtained financial assistance from charitable bodies and collections from her restaurant to repay to the first plaintiff.

III. COUNSEL'S SUBMISSIONS

AND DECISION BY COURT

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1. PROPER DEFENDANT

2. In relation to a point of procedure, it was submitted by learned counsel Encik Jerald Gomez for the defendant that the proper defendant to this suit should be Juliet and not Jone Theseira who has in her defence denied owing the sum claimed by the plaintiffs. Although Encik Andre Wee Heng Leong, learned counsel for the plaintiff, contended that the issue relating to the proper defendant to be sued has not been pleaded in the defence, I am of the view that the defence read as a whole including the defendant's defence expressly and specifically denying the debt constituting the plaintiff's claim herein, is sufficiently wide to encompass the ancilliary issue relating to the correct party to be sued as the defendant. That being the case, it is appropriate for the respective learned counsel to raise this issue in their submissions.

Having disposed of this preliminary point, I now proceed to consider the question as to whether Jone Theseira has been properly sued as the defendant. It is to be observed that she is the person to whom the benefit has accrued.

In my view, the entire evidence demonstrates that the defendant had assumed responsibility for the payment of the hospital bills for her daughter Juliet and was at all material times fully aware that she had to make payment thereof, as indeed she had done so, to the extent of repaying RM42,000 to the plaintiffs and that amount is not the subject matter