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c 



 

c


(Appellate Jurisdiction) 

Y   
 

BETWEEN

÷aju Holdings Sdn Bhd Appellant

AND

Fortune Wealth (H-K) Ltd Respondent

CIVIL APPEAL NO. W-02-964-01

BETWEEN

÷aju Holdings Sdn Bhd Appellant

AND

Regalion Investment Ltd Respondent 

CIVIL APPEAL NO. W-02-90-01

BETWEEN

÷aju Holdings Sdn Bhd Appellant

AND

Fortune Wealth (H-K) Ltd Respondent

Corum:

Abdul Kadir bin Sulaiman, H÷R

Hashim bin Yusoff, H÷R 

Tengku Baharudin Shah bin Tengku ÷ahmud, H÷R 

GROUNDS OF DECISION

Ê 
1.All these three appeals, Civil Appeal Nos. W -02-965-2001, W-02-964-2001

and W-02-90-2001 came up for hearing before us on 13.10.2003. With the

consent of the parties it was decided that Civil Appeal No. W -02-965-2001

should be heard first and the decision in this appeal shall be binding upon the

other two appeals. This course was taken because the issues in both the

appeals No. W-02-965-2001 and W-02-964-2001 have common features and

raised common issues and also had identical pleadings. The issues raised in

Civil Appeal No. W-02-90-2001 has also been raised in the other two

appeals. A similar position was also taken in the High Court below where

both cases were consolidated and it was decided that the decision in one

case will bind the other case. 

2.These three appeals before us had a historical significance. This panel of the

Court of Appeal was the first panel constituted to sit in the new premises of

the Court of Appeal in the Palace of Justice in Putrajaya. Hence these three

appeals were the first substantive appeals to be heard before us. We had on

16.10.2003 dismissed all these three appeals with costs and we now give our

reasons for doing so.

3.The material facts leading to these appeals before us had been marshal led

with clarity by the trial Judge in his judgment which has been reported as

Fortune Wealth (Hong Kong) Limited v ÷aju Holding Sdn Bhd [2002] 3 CLJ

329. In order to avoid wholesale repetition we will only refer to the brief facts

of the case. 

Bri 
 
4.The Appellant and the Respondent entered into a call and put option

agreement dated 21.4.1997. Under the terms of this agreement the

Respondent had granted to the Appellant during the call option period, the call

option to require the Respondent to sell and/or cause or procure the sale by

the Respondent to the Appellant 1,646,000 shares in Ipmuda Berhad free

from all restrictions and all other encumbrances at the completion date at the

option price of R÷7.55 per share. The call option action may be exercised by

the Appellant by serving an exercise notice on the Respondent during the call

option period defined in the agreement which is a period of 12 months from

the date of the agreement. 

5. Under the terms of the agreement the App ellant had also granted to the

Respondent during the put option period, the put option to require the

Appellant to purchase and/or cause the purchase by the Appellant the

1,646,000 shares in Ipmuda Berhad free from all restrictions and all other

encumbrances at the completion date at the option price of R÷7.55 per

share. As provided for in the agreement the put option may be exercised by

the Respondent by serving an exercise notice on the Appellant during the put

option period which is a period of 7 days c ommencing from the date of

expiration of the call option period. 

6. It is common ground that the Appellant did not exercise the call option to

purchase the 1,646,000 shares in Ipmuda Berhad when the call option period

of 12 months had expired on 20. 4.1998. The Respondent then exercised its

put option on 27.4.1998 by serving an exercise notice on the Appellant

requiring the Appellant to purchase the 1,646,000 shares in Ipmuda Berhad at


the total option price of R÷12,427,300.00 based on the price of R ÷7.55 per

share.

7. The Respondent¶s exercise notice was dated 27.4.1997 and it was duly served

and acknowledged by the Appellant at 5.35pm under the hand of Suzanna

Abdul Rahman. This exercise notice made reference to the agreement

dated 21.4.1997 . The Appellant did not respond at all to this exercise notice

issued by the Respondent. The Respondent¶s solicitors then proceeded to

serve a letter of demand dated 13.5.1998 upon the Appellant demanding that

the Appellant purchase or cause to purchase the option shares at the total

option price of R÷12,427,300.00. This letter of demand also made reference

to the agreement dated 21.4.1997. The Appellant again failed to respond to

the Respondent¶s solicitors¶ letter of demand. 

8. The Respondent had also by letter dated 16.4.1999 addressed for the attention

of Tan Sri Abu Sahid Bin ÷ohamed, the Executive Chairman of the Appellant

and notified the Appellant that it will proceed to force sell the options shares if

no objections was received in writ ing from the Appellant within 24 hours.

Again the Appellant did not respond. Subsequently the Respondent¶s

solicitors had by letter dated 9.11.2000 furnished the Appellant¶s solicitors

with an account of the force selling of the option shares. The Appella nt¶s

solicitors did not again respond to this letter. The Respondent then instituted

legal proceedings against the Appellant claiming various reliefs. 

9. It is clear to us that all the above letters made clear and unmistakable

reference to the agree ment dated 21.4.1997 and the Appellant did not
respond at all or challenge or dispute the Respondent¶s reliance and claims

made upon the agreement dated 21.4.1997. 

10. After a full trial the trial judge enter judgment in favour of the Respondent for

the sum of R÷10,138,441.35 with interest thereon at the rate of 8% per

annum with effect from 28.4.1998 to the date of realisation and costs. The

Appellant¶s counterclaim was dismissed with costs. The Appellant then

appealed to this Court. 

÷ Ê Ê    

11. We had on 16-10-2003 dismissed the Appellant¶s two Notices of ÷otion to

adduce fresh evidence at the hearing of these appeals. These Notices of

÷otion were filed by the Appellant after the Appellant¶s Counsel had

completed his opening submission and the Respondent¶s Counsel was in the

process of completing his submission in reply. 

12. In the Notices of ÷otion the Appellant had prayed for an order that the affidavit

of Tan Sri Abu Said bin ÷ohammed affirmed on 15.10.2003 inc luding all

exhibits annexed to his affidavit be admitted as fresh evidence at the hearing

of the appeals before us. 

13. We had after hearing both the Appellant¶s Counsel and the Respondent¶s

Counsel dismissed both Notices of ÷otion with costs. We now give our

reasons for doing so. We formed the view that the Appellant¶s application to

adduce fresh evidence through the affidavit of Tan Sri Abu Said bin
÷ohammed did not meet the first condition that it must be shown that the

fresh evidence intended to be adduced at the appeal could not have been

obtained with reasonable diligence for use at the trial. 

14. It is trite law that there are three conditions which must be fulfilled by the

Appellant in order for fresh evidence to be admissible at the appel late stage.

The test was succinctly formulated by Suffian FJ (as he then was) in à 

r ÷i !÷à  in the following terms:- 

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15.The said three conditions are cumulative and conjunctive an d not disjunctive in

that all the conditions must be fulfilled in order for the fresh evidence to be

admissible at the hearing of the appeals in the Court of Appeal. The three

conditions were also referred to by Ê à-i àr

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further evidence can be admitted on special grounds only with the leave of the

Court of Appeal. The tests formulated in Ladd v ÷arshall is also enunciated in

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17. It is also an essential requirement that an application to admit fresh evidence

must be supported by an affidavit which should explain fully why the evidence

was not called in the Court below and why it could not by the exercise of

reasonable diligence have been obtained for use at the trial. This requirement

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18. We found that the supporting affidavit affirmed by Tan Sri Abu Said bin

÷ohammed did not contain these relevant f acts to fulfill the requirements for

the admission of fresh evidence. In this particular case before us we were of

the view that the Appellant had failed to satisfy the first test as laid out in Ladd

v ÷arshall. We came to the conclusion that had the Ap pellant exercised

reasonable diligence the fresh evidence now sought to be adduced at the

hearing of these appeals could have been obtained from the witnesses

concerned at the trial of this action in the High Court below. We found that

there was no merit whatsoever in the Appellant¶s application to adduce the

fresh evidence and we had accordingly dismissed the Appellant¶s application

with costs.

19. We now turn to the substantive appeals. The Appellant¶s Counsel had raised

two main grounds in the appeals before us. These were also the very same

grounds raised by the Appellant in the High Court below. The first is the dating

of the agreement. The Appellant submitted that when the agreement was

executed by the Appellant under the seal of the Appellant company it was

blank as to the material particulars and the particulars were entered by the

Respondent without the consent or acknowledgement of th e Appellant. It was

intended by both parties that the agreement was to come into force on

1.4.1997 and it is immaterial that the agreement was dated 21.4.1997. The

Appellant also alleged that the date in the agreement was fraudulently altered
by the Respondent from 1.4.1997 to 21.4.1997. The second ground

advanced is that the Respondent was not the beneficial owner of the option

shares at the material time. The beneficial owner was said to be one Koh Kim

Teck who was an agent of the Appellant. The Respondent was therefore in

breach of the fundamental term of the agreement. 

20. In our judgment this appeal turns upon pure questions of fact based upon the

evidence and the credibility of witnesses who gave their evidence at the trial

together with the contemporary documentary evidence. The trial judge had

correctly addressed himself by stating that ³in making a decision on this case,

there is not much law involved but only hard facts are required´. The trial

judge had after very carefully evaluatin g the evidence of the witnesses and

the contemporaneous documentary evidence came to a finding of fact that the

agreement was in fact dated 21.4.1997 and not 1.4.1997 as alleged by the

Appellant. The trial judge also held that there was no evidence of any

fraudulent alteration of the date in the agreement. This is what the trial judge

had to say at pages 12 to 14 of his judgment:: -

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21. The judge also came to a finding of fact that the Respondent was at the

material time the beneficial owner of the options sh ares. The judge dealt with

this issue in the following terms at pages 15 to 17 of his judgment: -


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22. We as an appellate court will not readily interfere with the findings

of fact arrived by the court of first instance to which the law entrusts the

primary task of evaluating the evidence. It is only in cases where we as a

Court of Appeal are convinced th at there was no judicial appreciation of the

evidence adduced at the trial by the trier of fact or that the audio visual

advantage reserved to a trial judge had been missed or that the findings made

by the trial judge do not accord with the probabilities o f the case it would not

be open to us to intervene and upset the findings made by the trial judge. The

principles of appellate intervention have been laid down by the Supreme

Court in the case of Êri7 Ê


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23. The judgment under appeal before us does not contain any misdirection or

errors warranting our appellate interference. In fact after carefully scrutinising

the appeal record and having heard the rival submissions of the parties

counsel we were fully satisfied that the learned judge had properly evaluated

the whole body of evidence adduced at the trial and had drawn proper

inferences of fact wholly consistent with the contemporary documentary

evidence adduced in the case. The learned Judge had come to correct

findings of fact on the issues before him and had done all that was required of

him by law. Hence we found no merits in the Appellant¶s appeals before

us. 

24. We had also taken a second hard and careful look at the entire case before

us. We are satisfied that the Appellant had benefited from the call and put

option agreements entered into with the Respondent. In fact the evidence of

the Appellant¶s own witn ess DW3 ÷r Christopher S. Y. Chew who was the

÷anaging Director of IPU Sdn Bhd in the ÷aju Group of Companies had

testified under cross examination as follows (See Appeal Record Bahagian B

Page 387 to 389): - 

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25. It was manifestly clear to us that under the various call and put option

agreements the Appellant had the benefit of 23,030,000 shares in Ipmuda


Berhad worth about R÷150,000,000.00 without having to come up with any

money upfront. Tan Sri Abu Sahid ÷ohamed also received the payment of

R÷23,030,000.00. In these circumstances it will be wholly unjust and

unconscionable for the Appellant not to honour its obligations to purchase the

options shares under the call and put option agreements entered into with th e

Respondents. The parties must honour their commercial bargain entered

into.

26. The trial judge had rightly entered interlocutory judgment in favour of Regalion

Investments Limited, the Respondent in Civil Appeal No. W -02-964-2001 and

also ordered that the Senior Assistant Registrar or the Deputy Registrar of the

High Court to proceed to formally assess the general damages and/or other

ancillary relief as prayed for by the Respondent. Since interlocutory judgment

has been entered the question of liabi lity of the Appellant to Regalion

Investments Limited has been conclusively determined with finality and

therefore the issue of liability of the Appellant cannot be re -opened or re-

agitated by the Appellant during the assessment of damages. The duty of the

Senior Assistant Registrar or Deputy Registrar of the High Court is strictly

confined to assess the quantum of damages that is payable by the Appellant

to Regalion Investments Limited. This is strictly a mathematical exercise

involving the calculation of the total option price of the option shares and

deducting the value of the force sold shares, if any. 

27. We had therefore dismissed the above three appeals with costs. We also

affirmed the judgments of the Learned Judge below and the orders mad e by

him.
28.÷y learned brothers, Hashim bin Yusoff and Tengku Baharudin Shah bin

Tengku ÷ahmud JCAs have read the draft and consented to it. 

Dato¶ Hj. Abdul Kadir bin Sulaiman 

Judge, Court of Appeal 

÷alaysia

Dated: 25 September 2004 

Peguam b/p Perayu: 

En. ÷. David ÷orais

En. Khabir Dhillon

Peguamcara Perayu:

Tetuan ÷ohamad Illiayas & Co

Level 7 Wisma ÷LS

31 Jalan Tuanku Abdul Rahman 

50100 Kuala Lumpur 

(Ruj: ÷HSB/4/÷I/GS)

Peguam b/p Responden:

Dato¶ V.K. Lingam

En. V. Sithambaram

Cik V.K. Lakshmi

Peguamcara Responden

Tetuan VK Lingam & Co 

Level 10 ÷enara Shahzan Insas

No.30 Jalan Sultan Ismail 

50250 Kuala Lumpur 

(Ruj: VKL/L/1049/2000)