(Oral)

Gopal Sri Ram JCA:

This is the judgment of the court.

This is an appeal directed against the order of the learned judge decreeing specific performance of an agreement made in November 1976 between the respondents ("plaintiffs in the court below") and the appellants ("defendants in the court below") acting as administrators of the estate of Low Sau Chuin @ Lau Chaik Tong @ Lau Sau Chuin, (deceased).

The main issue that fell for determination by the learned judge was whether the sale and purchase agreement had been entered into voluntarily by the first appellant or whether it was tainted by coercion in the sense defined by s. 15 of the Contracts Act 1950. After the trial at which oral testimonies were led by both sides and having heard the parties' respective witnesses being tested on cross-examination, the learned judge came to the conclusion that the first appellant was not a truthful witness. The learned counsel who had argued this case for the appellants stated that the learned judge was wrong in his conclusion. It is the appellants' case that the learned judge failed to have regard to critical parts of the evidence which demonstrate want of true consent on the part of the first appellant. Our attention was drawn to the fact that soon after the execution of the agreement the first appellant refused to accept the RM10,000 paid by the respondents as earnest money. This, it was submitted was a pointer towards want of consent. With respect we cannot agree. We have read the judgment of the learned judge very carefully and we find that he has undertaken with unusual acuteness a judicial appreciation of the oral evidence presented before him.

In a case such as the present, we would respectfully remind ourselves of what Lord Shaw of Dunfermline said inClarke v. Edinburgh Tranways Co. [1919] SC (HL) 35 at p. 36 as follows:

When a judge hears and sees witnesses and makes a conclusion or inference with regard to what on balance is the weight of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the judge makes any observations with regard to credibility or not. I can of course quite understand a Court of Appeal that says that it will not interfere in a case in which the judge has announced as part of his judgment that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a court of justice. In courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelids, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of the appellate court? In my opinion, the duty of the appellate court in those circumstances is for each judge of it to put to himself, as I now do in this case, the question, Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgement.

Having scrutinized the printed evidence we are inclined to agree with the learned judge that the first appellant is not a truthful witness. We are therefore disinclined to disturb the finding of fact on the issue of coercion made by the learned judge.

That brings us to the next point. The complaint here is that the learned judge should not have decreed the specific performance because the co-administrator,Lau Yoke Hee(deceased), the first defendant in the court