Mohamed Dzaiddin Bin Haji Abdullah SCJ:

This is an appeal from the decision of the High Court Alor Star in a money claim for works done in the clearing, terracing, construction of field roads, etc., of estate land under five agreements entered into between the appellant and the respondent in 1979 and 1980.

By a writ of summons and the statement of claim filed on 21 March 1984, the plaintiff, who is now the respondent, alleged that the appellant company was indebted to him in the sum of RM1,581,870.90, being the balance of the amount due to him for works done pursuant to five agreements dated 30 June 1979, 12 January 1980, 15 June 1980, 1 August 1980 and 1 October 1980 respectively (the said agreements), particulars whereof had been rendered to the defendant company. By a notice in writing dated 5 March 1983, the respondent's solicitors demanded payment of the aforesaid sum which the appellant had failed to comply. Wherefore, he prayed for judgment in the sum of RM1,581,870.90 with interest and costs.

By the re-amended defence, the appellant denied owing the respondent the aforesaid amount and contended that subsequent to the agreement which it entered into with one Haji Ariffin Bin Haji Ismail on 1 January 1980 appointing the latter as its adviser, all payments and advances under the said agreements were made by the said Haji Ariffin to the respondent. These payments were debited to the appellant who then reimbursed the said Haji Ariffin. The appellant averred that the said arrangement was acquiesced and agreed to by the respondent and from 1 January 1980, all payments were made accordingly until December 1984 when the appellant rescinded the said arrangement which was expressly consented to by the plaintiff. In the circumstances, the appellant contended that the respondent was estopped from making any claim against the company on the ground of his acquiescing and agreeing to the said arrangement.

It is trite law that the burden of proving the loss, which in this appeal is the actual amount for works done, is on the respondent. In this regard, it is of utmost importance to summarise the evidence of the respondent in the Court below. He testified that after he had completed the works for the five estates, he submitted his claims by way of summary of accounts (pp. 117 to 121 Appeal Record) which was prepared by one Ah Lian, a clerk working at Sungai Patani who had some experience in preparing accounts for other people. Apparently, the summary of accounts were taken from the respondent's own record book in which was recorded the actual work completed by him for the five estates under the said agreements. Unfortunately, he was unable to produce the book in Court which he claimed he did not know its whereabout due to long lapse of time. Based on the above evidence of the respondent, there being no other supporting evidence except the summary of accounts, the learned Judicial Commissioner found on a balance of probability that the respondent had discharged the burden of proof of his loss and accordingly entered judgment for the balance sum of RM1,581,870.90 with interest and costs.

In his grounds of decision in Bahasa Melayu, the learned Judicial Commissioner gave the following reasons (p. 19-20 Appeal Record):

Jumlah Tuntutan.

Plaintif membuat jumlah besar sebanyak RM3,666,603.10 menurut penyata akaun yang dibentangkan di muka surat 43-47 Ikatan A yang mana defendan telah menjelaskan sebanyak RM2,084,704.80 menurut penyata akaun yang dibentangkan di muka surat 48-49 Ikatan A. Baki sebanyak RM1,581,898.30 belum dijelaskan dan notis desakan telah dihantar pada 5 Mac 1983 oleh peguam plaintif kepada defendan menuntut bayaran sebanyak RM1,581,870. Plaintif mengemukakan penyata akaun yang disediakan oleh seorang bernama Ah Lien yang menyalinnya dari rekod yang ditulis oleh plaintif dalam buku catitan yang dirujuk di Mahkamah tetapi tidak dikemukakan sebagai ekshibit. Saya dapati tanpa keterangan defendan yang boleh mencab