Wee Chong Jin (Singapore) CJ:

Having arrived at the conclusion that I would allow the appeal of both appellants and before I have had the opportunity of setting out the reasons which led me to this conclusion I have had the advantage of reading the judgment of Wylie CJ. I find I am in such complete agreement with the reasoning by which he has arrived at the same result as mine that I propose merely to say that I agree with him that the appeal of both appellants should be allowed, the judgment of the Court below should be set aside and judgment should be entered in favour of both appellants on all claims with costs both of the appeal and the Court below.

JUDGMENT

Wylie (Borneo) CJ:

These proceedings have their origin in two contracts concluded one between the respondent and the first appellant and the other between the respondent and second appellant. The first contract provided for the assignment to the respondent of all the rights and interests of the first appellant under an agreement made between the latter and his nephew, one H. K. Loon. Under this agreement first appellant had acquired rights to prospect and mine certain land included in an approved application for a prospecting permit covering that land. The nephew was the applicant named in the approved application. Under the second contract the respondent agreed to make to the second appellant certain payments by way of commission for the latter's part in bringing about the first contract. In the course of negotiations, second appellant had shown to a geologist employed by respondent some land which, on the findings of the trial Judge, some appellant had represented as being included in the approved application. The land appeared to the geologist to offer very good prospects. After the contract was concluded, the respondent's employees discovered that this land was not included in the approved application. Proceedings were then brought claiming damages from both appellants and there was included an allegation that second appellant had knowingly and fraudulently shown the geologist the wrong piece of land. The trial Judge found that both appellants had acted fraudulently.

The finding of the trial Judge in which he accepted the evidence given by the witnesses for the plaintiff was not challenged. On the hearing of this appeal, thereof, it was common ground that the second appellant showed the plaintiffs employee, one Bush, the wrong piece of land - that is to say, a piece of land over which the first appellant had no mining rights, but over which the second appellant represented that the first appellant did have rights under an approved application which would (and in fact did) lead to the issue of a prospecting permit. The appellants, in their grounds of appeal, challenged the finding that the second appellant acted fraudulently in that he showed Bush this piece of landknowing that it was not land included in the approved application, and this is the fundamental issue raised in this appeal. It was submitted that there was no evidence, or no sufficient evidence, to support this finding.

Before examining the evidence in relation to this submission, it is convenient to refer briefly to the standard of proof that is required when fraud is alleged in a civil action. This question is not referred to at all in the grounds of decision. In his closing address, according to the Judge's notes, Counsel for the appellants made these points:

Fraud must be proved. Each particular act of fraud must be proved. Fraud cannot be inferred.

No authorities are recorded as having been referred to either in the submissions or in the grounds of judgment, but the question of the standard of proof required was argued before this Court, and reference made to Nederlandsche Handel- Maatschappij N.V. v. Koh Kim Guan and Hornal v. Neuberger Products Ltd. and it was accepted on both sides that these authorities correctly laid down the law applicable. In the English case and in the cas