B wishes the court to believe that at the time in question he was elsewhere. He must prove it. [27] Recently, the Federal Court in Teoh Kiang Hong v Theow Say Kow @ Teoh Kiang Seng, Henry [2025] 2 AMR FC, when reversing the Court of appeal, reiterated the burden of proof principles. The relevant facts which concern this burden are as follows. Gary sent a demand letter to Henry for the performance of a share sale agreement ("SSA") which was formalised for the sale of Henry's share in the family companies to Gary. Henry denied the existence of the SSA and claimed that he never signed it. Henry alleged forgery of his signature and questioned the validity of the SSA. S/N B2VkeOKkaEyDu1fgydzJnw [28] Abang Iskandar Abang Hashim PCA [on behalf of the Federal Court] said at [89]: [89] However, on the question of who in law, shall bear the burden to prove forgery, specifically in this case, the alleged forgery of Henry's signature, we are of the unanimous view that the Court of Appeal had fallen into error in placing that onus on Gary, instead of on Henry. Clearly, Henry was alleging that his signature on the SSA was a forgery. In such a circumstance, because it was Henry who had so alleged, he bore the onus of proving that the signature was a forgery. There is a Latin maxim that reads, "onus probandi incumbit ei qui dicit, non ei qui negat", that translates to mean, the burden of proof lies with the one who speaks, not the one who denies the same. [Emphasis added] [29] Coming back to the appeal before me, the burden of proof to prove there is a moneylending agreement is on the defendant as it is he who asserts there is a moneylending agreement. In the trial the defendant has not produced any moneylending agreement or any document to prove his assertion of moneylending. Neither has he called any witness to corroborate his assertion. [30] Further, the Sessions Court after seeing both parties and hearing the defendant’s and the plaintiff’s testimonies had made a finding of fact that the defendant has failed to prove his assertion of moneylending. [31] The Sessions Court did not believe the defendant’s testimony there is a moneylending agreement. This finding can be supported as the S/N B2VkeOKkaEyDu1fgydzJnw defendant himself agreed under cross-examination that the moneylending transaction he was alleging was not probable. PC: I put it to you that it is not probable for the plaintiff to have loaned you 750,000 without an agreement, without any property security and without any guarantor, do you agree or not? SD 1: Yes I agree. The law on appellate intervention on a trial judge’s findings of fact [32] The principles on when an Appellate Court can intervene in a trial judge’s findings of fact from decided cases are as follows: i. The starting premise must be that as the trial judge had based his findings of fact on the evidence of the witnesses, his findings of fact should not be disturbed; ii. It is only in the rare cases where an Appellate Court, lacking the advantage of seeing and hearing the witnesses, is justified in coming to a different conclusion from the trial judge’s findings of fact. iii. It is well-settled law that an Appellate Court will not, generally speaking, intervene to reverse the trial judge’s findings of fact unless the trial judge is shown to be plainly wrong in arriving at his decision. S/N B2VkeOKkaEyDu1fgydzJnw iv. As long as the trial judge’s findings of fact can be supported on a rational basis in view of the material evidence, the fact that the Appellate Court feels like it might have decided differently is irrelevant. The trial judge should be accorded a margin of appreciation when his treatment of the evidence is examined by the Appellate Court. [See Wee Lian Construction Sdn Bhd v Ingersoll-Jati Malaysia Sdn Bhd [2010] 4 CLJ 203 CA, per Malik Ishak JCA at [71], Yahaya bin Mohamad v Chin Tuan Nam [1975] 2 MLJ 117 Privy Council, UEM Group Bhd v Genisy Integrated Engineers Pte Ltd & Anor [2018] Supp MLJ 363 FC, per Rauf Sharif FCJ and Ng Hoo Kui & Anor v Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 12 MLJ 67 FC]. [33] Based on the evidence and case law set out above, this is not a suitable case for me to interfere with the finding of fact by the Lower Court that the defendant has failed to prove illegal moneylending. Unjust enrichment [34] The plaintiff has pleaded unjust enrichment in her Reply and Defence to Counterclaim at paragraph 12. I am of view this plea is sufficient in law. In any event, the facts adduced at trial are sufficient to allow the plaintiff to succeed in her plea of Unjust enrichment. [35] The Sessions Court had made a finding of fact that the plaintiff has proven her plea of unjust enrichment. [See Ground of Judgment paragraphs 38, 40 & 43]. The defendant has not shown the finding is S/N B2VkeOKkaEyDu1fgydzJnw plainly wrong which is the criteria to reverse a finding of fact. I therefore see no reason to reverse this finding. I am satisfied the principles of unjust enrichment set out in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453 FC [“Dream Property”] are in favour of the plaintiff. [36] In Dream Property, the Federal Court set down the principles of unjust enrichment applicable in Malaysia as follows: - i. The defendant must have been enriched; ii. The enrichment must be gained at the plaintiff’s expense; iii. That the retention of the benefit by the defendant was unjust; and iv. There must be no defence available to extinguish or reduce the defendant’s liability to make restitution.