JUDGMENT

Azmi CJ (Malaya):

This is an appeal against the judgement of the High Court at Ipoh, allowing the appeal against the judgement of the Magistrate's Court at Tapah and ordering a retrial on the ground that the learned trial Judge had failed to come to a finding of fact on the issue of demand.

It is necessary to refer to some facts of the case.

The appellant, whom I will refer to as the landlord brought this action against the respondent, whom I will refer to as the tenant, for possession of certain premises on the ground that the rent lawfully due had been in arrear for 14 days or upwards.

The defence whilst admitting that the said rents were in arrear alleged that this was done at the request of the landlord himself who stated that this method of payment would be more convenient for him, the landlord.

The learned Magistrate found as a fact that the tenancy has always been a monthly tenancy, that rent was payable in advance and that the rent lawfully due has been in arrear for 14 days or upwards at the time the notice to quit was served on the tenant. He therefore gave judgment in favour of the landlord.

The appeal before the High Court was confined to one ground only namely that no demand for the rent in arrear had been made by the landlord and he was therefore precluded from relying on the proposition that rent was at the material date in arrears.

The High Court in reference to this ground stated in its judgment as follows:

There is some evidence of a sort on the record that the landlord sent his brother to ask for the rent every month. Such evidence is too vague and has to be balanced against the claim of the landlord in his solicitor's notice to quit dated 26 April 1966 that 'the rent was payable without demand in advance.'

In the absence of any demand on the premises, or evidence of any demand, the landlord cannot succeed.

I, therefore, allowed the appeal and having regard to the failure of the learned trial Magistrate to come to any finding of fact on the issue of demand, I ordered a re-trial.

In my opinion two questions have to be answered in this matter. First, should the High Court in exercise of its appellate discretion allow the new point which was not pleaded nor argued before the trial Magistrate to be raised before it. And secondly, should it order a new trial in order that the new point may be raised and argued and further evidence be produced?

On this question of a new point before an appellate Court I would quote a passage from the judgment of the Court in The "Tasmania [1890] 15 App Cas 223, 225 which is as follows:

. . . . a Court of Appeal ought only to decide in favour of an appellant on a ground there put forward for the first time, if it be satisfied beyond doubt, first, that it has before it all the facts bearing upon the new contention, as completely as would have been the case if the controversy had arisen at the trial; ....

It would be apparent that the learned appellate Judge in the present case found that there was insufficient evidence upon which he could make a decision. In my view therefore he, in the proper exercise of his discretion, should not have allowed the new point to be argued.

In reference to the second question, it is my view that the High Court in the circumstances should not have directed a new trial in order to enable the new point to be raised. As Charles J in Page v. Bowdler [1894] 10 LTR 423 stated:"

The appeal, therefore, fails, and we do not think that we ought to direct a new trial on points not taken at the trial. The arguments addressed to us might have been addressed to the Judge, but that was not done, and it would not be right to send the case to a new trial.

In the circumstances I would, therefore, allow the appeal and direct that the judgment of the learned Magistrate be restored.

JUDGMENT

Ong Hock Thye FJ:

This is an appeal against the decision of Chang Min Tat J in the High Court at Ipoh, allowing an appeal from the judgment of the Magistrat