He was clearly and 17 hopelessly unable to answer or explain the simplest of questions in regard 18 to Estima’s claim. His evidence was inconsistent, contradictory and did 19 not fit in with the documentary evidence tendered into court. It was 20 palpably noticeable that his evidence on crucial questions were in direct 21 contradiction to the contemporaneous documentary evidence and was 22 incongruent with the whole body of evidence that was presented to the 23 court. 24 25 [50] Suffice to say PW 1 was unable to produce any documentary 26 evidence nor show any other evidence that Estima had paid the balance 27 purchase price of the sale of the Land. In his testimony PW 1 said that he 28 paid the balance purchase price via a cheque : 29 30 “RK : The payment, the cheque. You said you paid by cheque right? 1 Can you show us a copy of the cheque of the balance purchase price? 2 PW 1 : I didn’t bring anything. Very sorry. 3 4 RK : You didn’t bring ah. 5 PW 1 : Ya. 6 7 RK : Mr Tan, when was the cheque issued 8 PW 1 : I couldn’t remember. I have to go back and check. 9 10 PK : You cannot remember. 11 PW 1 : I know after immediately we give pay after we get it. That’s 12 why I said all I paid full. 13 14 RK : No. Mr Tan, answer my question. 15 PW 1 : OK, today to prove that the balance purchase price has been 16 paid? 17 PW 1 : The balance? 18 19 RK : You have no evidence, That means there is nothing in Court 20 today. 21 PW 1 : Ya, nothing in Court. 22 23 RK : Ok, thank you. Mr Tan, I put it to you that this balance purchase 24 price was never paid since you have no evidence to prove this claim. 25 PW 1 : If you want I can go back and look for it. 26 27 RK : Mr. Tan, answer my question. 28 PW 1 : Yes.” 29 30 [51] In this respect it is instructive to note that PW 1 maintained he 31 handed the balance purchase price over to a lawyer named Dato’ Theng 32 Book and he alleged that the lawyer did not subsequently release that 33 payment to TDMSB. Estima elected not to call the lawyer concerned. 34 Since Estima consciously chose not to call the lawyer to support their 1 stand, counsel for the Defendants urged this court to invoke section 2 114(g) of the Evidence Act 1950 and this court is of the view that the 3 Defendants are correct to take that position. By refusing to call witnesses 4 who are fully conversant with the facts, the court will presume that had 5 they been called, they would have given evidence adverse to the party’s 6 claim. 7 8 [52] On that score Estima’s assertion that it had paid the full purchase 9 price cannot hold water. There is not an iota of evidence produced by 10 Estima to show that the full purchase price has been paid to TDMSB for 11 the purchase of the property. It is a well settled principle of law that only 12 upon full payment the purchase price does the purchaser become the 13 beneficial owner of the property. In Othman & Anor v Mek [1972] 2 MLJ 14 158 the Federal Court explained the concept of beneficial owner as 15 follows : 16 17 “The finality and conclusiveness of the judgement, however established 18 one fact in favour of Haji Ahmad beyond all shadow of doubt – that the 19 purchaser having paid the purchase price in full was the true beneficial 20 owner of the lands and the vendor after receipt of full payment became 21 a bare trustee thereof for the beneficial owner: See Bridges v Mees 22 [1957] 2 All ER 577 and Lysaght v Edwards [1876] 2 Ch D 499 506” 23 24 [53] Based on those foregoing reasons Estima cannot be said to be the 25 beneficial owner of the property. 26 27 [54] In assessing the probability of the versions proffered by the parties, 28 it is interesting to note and record that Estima as the Plaintiff had made 29 known its intent to call two witnesses to testify. These were Chang Yet 30 Mee and her husband Tan Swee Beng. Chang Yet Mee did not complete 31 her testimony; electing to withdraw from testifying after she came under 1 cross-examination by Masteron’s counsel. On the application by 2 Defendants’ counsel, her evidence was expunged as she refused to 3 appear to continue giving evidence. 4 5 [55] What will be the consequences of a witness who is fully conversant 6 with the facts but studiously refrains from giving evidence? In the case of 7 Takako Sakao v Ng Pek Yuen & Anor [2010] 1 CLJ 381, the Federal 8 Court stated : 9 10 “[4] In our judgment, two consequences inevitably followed when the first 11 respondent who was fully conversant with the facts studiously refrained 12 from giving evidence. In the first place the evidence given by the 13 appellant ought to have been presumed to be true. As Elphinstone CJ 14 said in Wasakah Singh v Bachan Singh [1931] 1 MC 125 at p. 128: 15 If the party on whom the burden of proof lies gives or calls 16 evidence which, if it is believed, is sufficient to prove his case, 17 then the judge is bound to call upon the other party and has no 18 power to hold that the first party has failed to prove his case 19 merely because the judge does not believe his evidence. At this 20 stage, the truth or falsity of the evidence is immaterial. For the 21 purpose of testing whether there is a case to answer, all the 22 evidence give must be presumed to be true. 23 [5] …where as here, the first respondent being a party to the action 24 provides no reasons as to why she did not care to give evidence the 25 court will normally draw an adverse inference. See Guthrie Sdn Bhd v 26 Trans-Malaysian Leasing Corp Bhd [1991] 1 CLJ 9. See also Jaafar 27 Shaari & Siti Jama Hashim v Tan Lip Eng & Anor [1997] 4 CLJ 509 28 where Peh Swee Chin FCJ said: “The respondents had chosen to close 29 the case at the ned of the appellants’ case. Although they were entitled 30 to do so, they would be in peril of not having the evidence of their most 31 important witness and of having an adverse inference drawn against 32 them for failing to call such evidence should the circumstances demand 1 it. 2 … 3 It is well settled that in civil proceedings the court may draw adverse 4 inferences from a defendant’s decision not to give or call evidence as to 5 the matters within the knowledge of himself or his employees.” 6 7 [56] In respect of Estima’s claim, I find that it has failed to even come 8 close to the threshold required to prove its case on the civil balance of 9 probabilities. Estima has failed to prove that it is the beneficial owner of 10 the property. As highlighted earlier it is only upon full payment of the 11 purchase price shall a purchaser become the beneficial owner of the 12 property (see Othman & Anor v Mek, supra). 13 14 [57] Estima has further argued that it has a beneficial interest on the 15 property by reason of PTGKL having accepted Estima’s application to 16 enter a private caveat which was duly registered on the master title of the 17 land in which the property sits on. According to Estima this is prima facie 18 proof that Estima has been recognized as having a beneficial interest on 19 the property. I disagree with that argument. 20 21 [58] The mere fact that the Land Office registered Estima’s private 22 caveat does not conclusively prove that it has a beneficial interest on the 23 property. The role of the Land Officer is purely routine and administrative 24 in nature in carrying out his functions. The officer has no power to reject a 25 caveat. I am guided by the decision of the Federal Court in Ong Chat 26 Pang & Anor v Valliappa Chettiar [1971] 1 MLJ 224 whereby it held : 27 28 “the registrar or collector has no power to reject a caveat. He cannot 29 require the caveator to establish his claim. Hid duty goes no further than 30 this that, if the claim of the caveator to an interest in land is prima facie 31 good, the caveat should be registered. In other words, the registrar is 1 not called upon to determine the claim but merely to determine whether, 2 on the facts stated in the caveat and verified by the affirmation of the 3 caveator or his agent as required by section 167, there is possibly an 4 interest in land accruing to the caveator.” 5 6 [59] Therefore I would not place any weight at all on the lodgement of 7 the private caveat because it is irrelevant and is of no merits. 8 9 [60] As I had reiterated earlier, the Plaintiff’s only witness was PW 1 and 10 he has not proven that Estima had paid the full purchase price of the 11 property as alleged. PW 1 talked about settling the balance (contra) of 12 payment owed to him by TDMSB as his justification for Estima’s claim. His 13 evidence is as follows : 14 15 “PW 1 : ….Last time when I bought a shop lot there the corner because 16 their contract because when I rent I got the piece of the land rent to the 17 TD Management. Then they have no money to pay, they owe me until 18 300 over thousand. So they asked me to sue him but I never sue. After 19 that they bankrupt. Then I said how my money. They said never mind I 20 contra you. 21 … 22 YA : Ok. So you say you contra something? 23 24 PW 1 : …the shop lot at the time is 400 thousand. So we contra the 25 balance we pay full the 120 thousand. So that’s all. 26 27 YA : Mr Tan paid in full 120 thousand? 28 29 PW 1 : 400, I don’t have any paper here. Sorry, I couldn’t remember. 30 And then that’s all. I mean I cannot get until now, I wait until now I cannot 31 get the title. I cannot get the shop lot back. That’s why I want to come 32 back and claim the money. 33 … 1 AZ : Please look at page 246 of Bundle B. 2 … 3 PW 1 : Oh. This is Sale and Purhcase agreement between TD 4 Management and Estima. 5 … 6 7 [61] In the light of the contemporaneous documents I am constrained to 8 make the finding that his evidence was uninspiring and failed to convince 9 me of the probabilities as to the truth of his claim. 10 11 [62] To sum it up the contra referred to is in reference to the Deed of 12 Settlement dated 12.8.2003. According to the Deed of Settlement there is 13 an outstanding sum of RM312,000.00 being rental due and owing to 14 TDMSB to De Inn Realty Sdn Bhd. The sum of RM312,000.00 shall be 15 deemed to be paid by Estima to TDMSB being part payment of the 16 purchase price of the property. The property was to be sold at the price of 17 RM440,406.72. Estima claims to have paid the balance sum of 18 RM128,406.72 but has not been able to produce any documentary 19 evidence to support this assertion. 20 21 Whether Masteron had given an undertaking to Estima to obtain a 22 leasehold title for the property 23 [63] Estima has contended that Masteron had given an undertaking to 24 Estima to obtain a leasehold title for the property and that Masteron is 25 bound by that undertaking. In his testimony PW 1 stated that Masteron 26 asked him to lift the caveat so that they could subdivide it. The only 27 evidence relied on by Estima to prove this is the oral testimony of PW 1. 28 That evidence on this issue was as follows : 29 30 “AZ : Ok. So to save our interest can you brief the Court on what did 1 you do? I believe there is no original title. So what did you do after that? 2 PW 1 : The whole thing I know is that they asked me to leave (sic; lift) 3 the caveat, let them to subdivide it and give me back my title the new 4 ship for this. But until now never give. They said so, actually we been 5 chasing also, no, never until today. 6 7 AZ : Then what happened to the land? 8 PW 1 : The land now I passed by there they develop already. I know 9 my land is gone and shop there. But the shop is still there. I want back 10 my right. Give me back my shop I don’t mind even they give me cash it 11 is better.” 12 13 [64] DW 1, Masteron’s witness, has denied this assertion. In his 14 evidence DW 1 stated as follows : 15 16 “Para 5, memberi akujanji secara tulis. I do not agree with para 5 17 because we never promise them to give them akujanji secara bertulis.” 18 19 [65] In my considered view, the evidential burden lay upon Estima to 20 prove that Masteron had agreed to provide an undertaking in writing as 21 alleged. 22 23 [66] Section 103 of the Evidence Act 1950 provides that : 24 25 “The burden of proof as to any particular fact lies on that person who 26 wishes the court to believe in its existence, unless it is provided by any 27 law that the proof of that fact shall lie on any particular person.” 28 29 [67] As Estima is seeking to rely on an undertaking given by Masteron it 30 carried the burden of proving that undertaking. I find that Estima had failed 31 to discharge that burden. 32 [68] From the evidence adduced I am in agreement that Estima’s 1 contentions that Masteron had given an undertaking to procure the title for 2 the property for it is without basis and untenable. I hesitate to give any 3 weight to the oral testimony of PW 1. The aforesaid oral testimony by PW 4 1 is not supported by any evidence in the form of documents. There is no 5 evidence produced by Estima to show that such an agreement for 6 Masteron to provide that undertaking. 7 8 [69] I now turn to PW 1’s assertion that Masteron had promised to 9 procure the individual title to the property for Estima. I have noted that 10 Estima has contended that it was the duty of Masteron to procure an 11 individual title of the property on behalf of Estima. I find these assertions 12 were never pleaded in the statement of claim. It is trite that parties are 13 bound by their pleadings in a civil litigation. Neither is it the duty of the 14 court to create a cause of action in order to assist a party to the suit. 15 16 [70] In the case of Yew Wan Leong v Lai Kok Chye [1990 2 MLJ 152 17 the Supreme Court emphasized the duty of the court as follows : 18 19 “The court is not entitled to decide a suit on a matter on which no issue 20 has been raised by the parties. It is not the duty of the court to make out 21 a case for one of the parties when the party concerned does not raise or 22 wish to raise the point. In disposing of a suit or matter involving a 23 disputed question of fact, it is not proper for the court to displace the 24 case made by a party in its pleadings and give effect to an entirely new 25 case which the party had not made out in its own pleadings. The trial of 26 a suit should be confined to the pleas on which the parties are at 27 variance.” 28 29 30 Whether Masteron had made fraudulent misrepresentations to 1 Estima 2 [71] Estima’s case in essence is that Masteron agreed that it would 3 protect Estima’s interest and give an undertaking to subdivide the property 4 and thereafter re-alienate it back to Estima. It reneged on its agreement 5 and hence Estima has contended that Masteron has fraudulently defeated 6 and diminished Estima’s interest on the property. 7 8 [72] What constitutes fraudulent misrepresent has been aptly explained 9 in the case of Artistic Biofuels Sdn Bhd v Port Klang Authority & Ors 10 [2021] MLJU 1801 as follows : 11 12 “[93] The oft-cited statement of principle in relation to the elements of 13 fraudulent misrepresentation is that of Lord Herschell in the leading 14 House of Lords decision of Derry v Peek [1889] 14 App Cas 337 as 15 follows (at 374): 16 I think the authorities establish the following propositions: First, in order 17 to sustain an action of deceit, there must be proof of fraud, and nothing 18 short of that will suffice. Secondly, fraud is proved when it is shown that 19 a false representation has been made (1) knowingly, or (2) without belief 20 in its truth, or (3) recklessly, careless whether it be true or false. Although 21 I have treated the second and third as distinct cases, I think the third is 22 but an instance of the second, for one who makes a statement under 23 such circumstances can have no real belief in the truth of what he states. 24 To prove a false statement being fraudulent, there must, I think, always 25 be an honest belief in its truth. And this probably covers the whole 26 ground, for one who knowingly alleges that which is false, has obviously 27 no such honest belief. Thirdly, if fraud be proved the motive of the person 28 guilty of it is immaterial. It matters not that there was no intention to cheat 29 or injure the person to whom the statement was made. 30 … 31 [95] The elements of fraudulent misrepresentation are: (a) there must be 32 a representation of fact by words or conduct; (b) the representation must 33 be made with the intention that it should be acted on by the plaintiff; (c) 1 the plaintiff had acted upon the false statement; (d) the plaintiff suffered 2 damage by so doing; and (e) the representation must be made with the 3 knowledge that it is false; it must be wilfully false, or at lease made in 4 the absence of any genuine belief that it is true: See Yeohata 5 Machineries v Coil Master at [94]. 6 7 [73] From the evidence adduced, this court finds that Estima has not 8 proven any of the elements required for fraud or misrepresentation to be 9 made out. Estima merely relied on the evidence of PW 1 who stated that 10 DW 1 had fraudulently misrepresented to him that they return the title of 11 the property to Estima if he agreed to lift the caveat so that the land can 12 be subdivided. However the version by DW 1 contradicts PW 1’s 13 averment. The following extract of the evidence by DW 1 under cross- 14 examination is enough to illustrate this point : 15 16 “AZ : Is there any meeting with the Plaintiff by the Defendant? Or by 17 the office? 18 DW 1 : Yes there was one meeting with him to lift the caveat. 19 20 AZ : What transpired from the meeting Mr Lim? 21 22 YA : Mr Lim? 23 24 25 26 YA : What transpired form the meeting Mr Lim? 27 28 DW 1 : Oh ya. Meeting with him because we wanted to do the 29 surrender and realignment of the master title for 9195. So whereby the 30 caveat inside. So we request the Plaintiff to lift the caveat in order for us 31 to proceed with the surrender and realignment. 32 33 [74] In addition DW 1 denied that they promised to give Estima a written 1 undertaking. This is seen from the testimony of DW 1: 2 3 “AZ : Did the Plaintiff file a caveat? 4 DW 1 : Ya. 5 6 AZ : And are they uplift the caveat? 7 DW 1 : Yes, they have uplifted. 8 9 AZ : When was it? 10 DW 1 : Somewhere 2016, if I’m not mistaken. 11 12 AZ : Are you agree with me because of the uplifting of the private 13 caveat which is filed by the Plaintiff it enable you to surrender the land? 14 15 16 AZ : Alright. So is there any consideration made by you to Plaintiff to 17 enable him to uplift the caveat? 18 DW 1 : No. 19 20 AZ : No monetary consideration at all? 21 DW 1 : No monetary ya. 22 23 AZ : Is there any promise? 24 DW 1 : No. 25 26 AZ : So you are telling the court it is by his own accord? 27 28 29 AZ : How did you receive the withdrawal of the caveat papers? 30 DW 1 : Through his lawyers sending it to my office.” 31 32 [75] My evaluation of the evidence elicited through cross examination 33 showed that Estima had failed to nail or elicit any admission from DW 1 of 34 any oral undertaking or promise given to PW 1. It was never put to DW 1 1 that he was the one who gave those assurances to PW 1. 2 3 [76] Had there been an undertaking for Masteron to provide a written 4 letter of undertaking, taken logically Estima would have waited for the 5 written letter of undertaking to be delivered to it before lifting the private 6 caveat willy nilly. 7 8 [77] Counsel for Masteron had correctly pointed out that Estima had not 9 succeeded in challenging the oral testimony of Masteron’s witness. Quite 10 disappointingly DW 1 was never put to the challenge that he had given an 11 undertaking that Masteron would re-alienate the property back to Estima 12 if Estima agreed to lift the private caveat off of the property. At this juncture 13 I will state that I found no reason to disbelieve the testimony of DW 1 who 14 remained steadfast in his evidence that there was no agreement or 15 undertaking given to Estima. 16 17 [78] I found DW 1 credible and more importantly his evidence was 18 substantially corroborated by the events that took place i.e. that Estima 19 themselves voluntarily sent over the pertinent documents to be used for 20 uplifting the caveat without even waiting for a written undertaking from 21 Masteron. In doing so Estima knew that there was no agreement or any 22 undertaking given to re-alienate the property back to them after the 23 subdivision was done. In my view there is no basis to believe PW 1’s 24 testimony that DW 1 had made such misrepresentations fraudulently to 25 PW 1 to induce Estima to remove the caveat. 26 27 [79] I am further minded to agree with Masteron’s observation that 28 Estima had never pleaded the following particulars in its statement of 29 Claim dated 7.5.2018 : 30