I. APPEAL

This is an appeal by the appellant-plaintiff ("the plaintiff) against the decision of the learned sessions court judge who on 27 July 2000 dismissed the plaintiff's claim with costs.

II. FACTS OF THE CASE

The plaintiffs claim against the respondent-defendant ("the defendant") was for a sum of RM36,667.57 pursuant to an indemnity executed by the defendant on 19 April 1991 in favour of the plaintiff to indemnify the plaintiff ("the indemnity") in the following terms :

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"To M/s Sykt Tan Chow 85 Loh Securities Sdn Bhd, Malacca.

Re : Indemnity

IN CONSIDERATION of our agreement and the terms of employment as a Remisier with your company AND IN CONSIDERATION of your releasing me to join another Stockbroking Company and your releasing the deposit to me before ascertaining all the losses I am responsible for MR KOH KEE HUAT I the undersigned HEREBY AGREE AND CONFIRM to indemnify you and keep you indemnified against all losses, claims and actions arising out of all the transactions handled by me between my own clients and yourselves and the delivery of all shares by all my selling clients in the event that the scripts as delivered shall for any reason whatsoever turn out to be not good for delivery.

AND I FURTHER AGREE that I shall pay for such losses, claims and/or judgment within 14 days of a notice of demand made on me and after such notice the sum so claimed shall be deemed to be a liquidated debt and may become actionable forthwith.

The indemnity shall be continuing and shall be determined by the full payment of the sum or sums as demanded by you and shall be binding on myself and my personal representatives.

Dated this 19 day of April, 1991.

Name : MR KOH KEE HUAT

IC No : 5464297

Address: 7222-C, 8 milestone

Paya Rumput

MELAKA

WITNESS

(TAN TIONG HOE)

I/C: 0869587"

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The defendant who served in the plaintiff company from 1982 to 1991 as a remisier was required to deposit a sum of RM65,000 with the plaintiff. He resigned on 12 April 1991 in order to join another securities company i.e. Street Securities Sdn. Bhd. for which he was required to deposit a sum of RM100,000. In order to meet this requirement, the defendant requested the plaintiff to release the deposit of RM65,000 to him, which was effected upon the defendant's execution of the indemnity, at the instance of the plaintiff's director-cum-general manager, one Latif bin Dato Tamby Chik ("Latif"), who told the defendant :

"The choice is yours. If you sign, you will get your money. If you don't sign, you won't get your money."

The learned sessions court judge found that the defendant has successfully discharged the burden of proving duress in the execution of the indemnity and that the plaintiff has failed to call

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Latif, thereby invoking s. 114(g) of the Evidence Act 1950 to raise an adverse inference against the plaintiff. In the circumstances, the defence of duress was upheld by the court below.

III. COUNSELS' SUBMISSIONS AND DECISION BY COURT

1. Burden of Proof

The learned sessions court judge and the respective learned counsel are of the same view that the burden of proof is cast upon the defendant to establish the defence of duress : s.102 and s.103 of the Evidence Act 1950. However the dispute here is whether the defendant has discharged this burden.

It was contended by En. Shaari Nor, learned counsel for the defendant, that the defendant has successfully discharged the

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burden notwithstanding that Latif was not called by the defendant and that the plaintiff's failure to call Latif as a witness would attract the application of s. 114(g) of the Evidence Act 1950.

En. L.K. Tiu, plaintiff's learned counsel, responded that s. 114(g) should be invoked against the defendant who has failed to call Latif as a witness.

In my judgment, notwithstanding s. 114(g) relied upon by the respective counsel, it is important to look at s. 134 of the Evidence Act 1950 which provides that no particular number of witnesses shall in any case be required for the proof of an