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JUDGMENT
1. Introduction
[1] This is an appeal against the decision of the Learned Magistrate (encl 1) in dismissing the Writ of Summons by the appellant (plaintiff in the Magistrates' Court) given on 8 August 2019 with cost of RM1,500.00.
[2] The appellant was seeking for the following Orders:
i. Return of the money in the sum amounting to RM35,000.00;
ii. For the said sum of money, 5% interest per annum from the date of filing of the Writ until full and final settlement;
iii. Cost; and
iv. Other reliefs or orders that the Court deems just and fit.
2. The Background Facts
[3] The appellant and respondent (defendant in the Court below) entered into an investment agreement dated 23 September 2016 (hereinafter shall be known as "the said agreement") where the appellant is to invest RM100,000.00 in projects that Consortium DJ Construction Services are involved in through the respondent.
[4] The respondent promised a return of RM20,000.00 from the investment sum. The total amount to be paid to the appellant at the maturity of the said agreement is RM120,000.00. The respondent paid RM85,000.00 and is still in arrears of RM35,000.00. Notwithstanding a number of reminders and notices served on the respondent, the respondent fails to pay the balance sum of RM35,000.00 and hence the Writ action to claim for the said amount.
3. Evidence Adduced In The Trial
[5] The evidence adduced in the trial is the viva voce evidence of the appellant alone and the documentary evidence. The respondent did not call anyone to testify on his behalf.
[6] The said agreement was produced, identified and explained in Court but learned counsel for the appellant overlooked in tendering the said agreement as exhibit. The learned Magistrate found that since the said agreement was not tendered properly and marked, there was nothing before the learned Magistrate to act upon and the learned Magistrate ruled that the appellant failed to prove its case and dismissed it with cost.
4. The Issues In This Appeal:
4.1 Whether the failure to tender and mark the said agreement tantamount to rendering the said agreement inadmissible and as such, cannot be considered by the learned Magistrate in coming to her decision?
4.2 Whether an admission may be considered against the party that makes the admission?
4.3 Whether the appellant has succeeded in proving his case on the balance of probabilities?
[7] I shall deal with each issue.
4.1 Whether The Failure To Tender And Mark The Said Agreement Was Tantamount To Rendering The Said Agreement Inadmissible And As Such, Cannot Be Considered By The Learned Magistrate In Coming To Her Decision?
[8] It is not in dispute that PW1/Raja Zailan Raja Mansor (the appellant) gave evidence that he and the respondent (defendant in the Court below) entered into an investment agreement dated 23 September 2016 (hereinafter shall be known as "the said agreement") where the appellant was to invest RM100,000.00 in projects that Consortium DJ Construction Services are involved in through the respondent.
[9] The respondent promised a return of RM20,000.00 from the investment sum. The total amount to be paid to the appellant at the maturity of the said agreement is RM120,000.00. The respondent paid RM85,000.00 and is still in arrears of RM35,000.00. Notwithstanding the reminders and notices served on the respondent, the respondent fails to pay the balance sum of RM35,000.00.
[10] The said agreement was identified and explained by the appellant. Unfortunately, it was not marked nor properly tendered in Court due to the oversight of learned counsel.
[11] In law, there are a few principles that must be complied with for a document to be tendered.
[12] They are as follows:
i. the original document is produced before the Court and if that is not possible, the secondary document may be produced.
ii. The contents have been explained as to the truthfulness of such content.
[13] The issue here is now, what is a document?
[14]
