JUDGMENT

Abdul Malik Ishak J

The appellants owned a building known as Tun Abdul Razak Complex and rented out an area of approximately 4,696 sq ft on the second floor of the said building, at the podium level to the respondents ('demised premises') for a period of five years commencing from 15 May 1977 at monthly rentals calculated on the following basis:

(i) first year at RM5,525 per month;

(ii) second year at RM5,850 per month;

(iii) third year at RM6,175 per month; and

(iv) remaining two years at RM6,500 per month.

The tenancy agreement (exh P1) was scheduled to end on 14 May 1982 but somehow it was extended (though there was no evidence adduced towards this end) and finally the parties mutually consented to terminate the tenancy agreement on 31 March 1986 as reflected in the statement of claim of the respondents and the appellants had agreed to these set of facts in their statement of defence. Indeed, these were the evidences that were introduced before the magistrate's court, Johor Bahru. The trial before the magistrate's court, Johor Bahru was surprisingly conducted by a judge of the sessions court, Johor Bahru ('trial court').

It was in evidence that when the respondents rented the demised premises it was totally empty. The respondents installed airconditioning ducts to the demised premises and incurred expenses. Upon the expiry of the tenancy agreement the respondents wanted to dismantle the airconditioning ducts but were prevented by the appellants. In any event, the trial court ordered the appellants to pay RM15,250 with interest calculated at 8% pa from 16 January 1992 till realisation and costs to the respondents.

It has been argued before me that the trial court had erred in ordering the appellants to pay RM15,250 for the airconditioning ducts whilst the respondents argued that the order of the trial court was perfectly in order and that it should be confirmed.

It is apparent that the trial court relied heavily on a letter tendered by the respondents through its witness Haji Mohd Said bin Alwee (PW1) ('Haji Said') as the basis to award that amount to the respondents. That letter was marked as exh ID3 and for brevity I reproduce that letter as follows:

Forley & Sons (Johor) Sdn Bhd

Head Office: No 113E, Jalan Tun Abdul Razak,

Johor Bahru.

Tel: 53063 & 223967

Branch Office: No 89, Jalan Keris Satu, Taman Sri Tebrau,

Johor Bahru.

Tel: 321059 & 333219

Your Ref: MEM/CH/920

Date: 1.12.86

M/s Elyas Majeed & Co,

Peguambela dan Peguamcara,

No 7, 1st Floor,

Jalan Tan Hiok Nee,

80000 Johor Bahru.

Re: Installing Air-Conditioning Duct at Queen Bee Nite Club, Tun Abdul Razak Complex, Johor Bahru.

With reference to your letter dated 6 November 1986, we hereby confirmed that air-conditioning duct at Queen Bee Nite Club, Tun Abdul Razak Complex, Johor Bahru being supplied and installed by us on 30 November 1976 at the cost of $15,250 (Dls: Fifteen Thousand Two Hundred and Fifty) only.

Yours faithfully,

(Signed in Chinese character)

FORLEY & SONS (JOHOR) SDN BHD

No 113-E, Jalan Tun Abdul Razak, Johor Bahru

Tel: 223967, 220103

Two things need to be highlighted in regard to exh ID3. Firstly, it was dated 1 December 1986, and secondly, it stated that the airconditioning duct(s) were installed on 30 November 1976 (before the tenancy agreement was signed between the parties) at RM15,250.

In examination-in-chief, Haji Said testified that the receipt for payment of the airconditioning ducts was misplaced and he could not product that receipt in court. On being recalled Haji Said testified that concerted attempts by him to trace Forley & Son Sdn Bhd ('Forley') were unsuccessful. This was what Haji Said said:

Saya telah cari Forley & Sons yang mana syarikat itu telah tiada. Saya puas cari Forley tapi tak berjaya, sudah banyak kali cari. Tak ada siapa yang tinggal di kawasan itu lagi sekarang. Oleh itu saya tak dapat kemukakan maker of ID3.

Under cross-examination, pertinent points surfaced. Haji Said testified that the last time he met Forle