JUDGMENT

Gopal Sri Ram JCA:

This is quite a simple case. But it has become utterly confused because of the way in which the plaintiff presented its case in the court below.

For convenience, we will refer to the parties according to the title assigned to them in the court below. This is the defendant's appeal.

The essential facts of this case are as follows.

The defendant is a limited company. It was keen on acquiring land to build a factory. It saw an advertisement in a newspaper placed by an estate agent - a Mr. T.K. Wong, carrying on business as Wong Tai Kong Realty - whom we will refer to as "Wong". The advertisement referred to certain land at the Jalan Kelang Lama area as being available for purchase. The land in question was owned by the plaintiff. By pre-arrangement, the defendant's representatives visited the land. Wong accompanied them. There was some discussion about the availability of access to the land in question. As found by the learned trial judge - a finding of fact that is accepted by both sides before us - Wong represented to the defendant's representatives that the land had access to the main road. This was an important fact because, absent access, the land was worthless to the defendant. Following negotiations, the parties entered into a written sale and purchase agreement pursuant to which the defendant paid a deposit of RM254,204. It later transpired that the land in question had no access. The defendant refused to complete on this ground. The plaintiff then filed a writ action claiming a declaration that the defendant had repudiated the sale and purchase agreement. The defendant defended the action on the ground that the agreement had been vitiated by Wong's misrepresentation. And it therefore counterclaimed for rescission.

At the trial, each side formulated the issues that each considered necessary for its case. The issue common to both sides was whether Wong had made the representation regarding access to the land. As we said a moment ago, the judge held that the representation had been made. The defendant raised two further issues. In a gist, they amount to whether there was, on the evidence, an actionable misrepresentation. For its part, the plaintiff raised an additional issue which led the learned judge astray and produced the confusion that has obfuscated the true issues of law that lie at the heart of this appeal. That issue was put by those having conduct of the plaintiff's case as follows:

Whether the Defendant can use the alleged representation to contradict, vary, add to, or subtract from, the terms of the Agreement and Supplementary Agreement in contravention of Section 91 and 92 of the Evidence Act, 1950?

With great respect to the plaintiff's solicitors, this question bears no relevance whatsoever to the issue as disclosed upon the joinder in the pleaded cases of the respective parties. At the risk of repetition, we will recall what that issue is. On the one side you have the plaintiff seeking to enforce the agreement. On the other side, you have the defendant seeking to avoid the agreement for misrepresentation. So, what the court below had to decide was whether a case of actionable misrepresentation had been made out on the evidence. If yes, then the agreement would have to be set aside, barring the presence of any facts that would go to the exercise of discretion against the grant of equitable relief. If no, then the agreement would be very much alive and the defendant would be under an obligation to fulfill its terms.

Whether a party to a contract may vary or contradict its terms is an issue that goes to the interpretation of the contract, that is to say, its meaning and not its validity. Conversely, the effect of a misrepresentation upon a contract goes to its validity and not its meaning. Put another way, it is not permissible to look at matters extrinsic to a contract to discover its meaning. However, if the contract itself is the product of an extraneous fact, such as an actionable