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SANTI KRISHNAN v.

MALAYSIA BUILDING SOCIETY BHD [2015] 1 CLJ


COURT OF APPEAL, PUTRAJAYA
MOHD ZAWAWI SALLEH JCA, IDRUS HARUN JCA, PRASAD SANDOSHAM
ABRAHAM JCA

TOPIC Judicial notice


FACTS OF THE CASE The appellant entered into a sale and purchase agreement
with the respondent for the purchase of a house. The
appellant made some payments but failed to settle in full the
outstanding balance resulting the respondent proceeding to
sell the property by way of public auction.
The successful bidder and the respondent entered into a
memorandum of a sale of property with a condition that the
bidder needs to pay 10% of the purchase price to the
respondent with the balance to be settled within 120 days from
the date of sale of the property. Subsequently, the appellant
filed a notice of application to stay of the execution by the
respondent and the bidder of the memorandum of sale of the
property until final disposal of the application and a revocation
and setting aside of the memorandum. The High Court judge
dismissed the application and the appellant appealed.
The appellant submitted that the successful bidder failed to
comply with the condition of sale which required payment of
balance of the purchase price to be made within 120 days
from the date of the sale of property, thus such failure to
comply with the condition of sale cause the memorandum of
sale to lapse and become null and void. The respondent
merely denied the said allegation as no evidence has been
proffered by the respondent in its affidavit stating that the
bidder had actually paid the full balance of purchase price and
had never made any attempt to rebut the contention.
However, the learned judge had on his own motion took
judicial notice to admit in evidence a certificate confirming that
the respondent had received the whole payment from the
successful bidder before the expiry of 120 days. Note that the
respondent did not exhibit the certificate in affidavit.
ISSUE Whether certificate confirming full payment in sale of land are
subject of common and general knowledge or sufficiently
notoriety attached thus are correctly admitted as judicial
notice.
JUDGEMENT The judge referred to Pembangunan Maha Murni Sdn Bhd
v Jururus Ladang Sdn Bhd (1985), stated that the general
rule is that all facts in issue and relevant facts must be proved
by evidence. However, there are two facts which need not to
be proved which are admitted facts or of which the court will
take judicial notice.
Section 56 of the Evidence Act deals with the facts that the
court will take judicial notice while Section 57 of the same
Act enumerates facts which the court shall take judicial notice.
The court satisfied that the Certificate does not fall within any
of the class of facts which the court shall take judicial notice
under section 57, thus it is necessary to consider whether the
certificate falls under section 56.
In law, the matters which the court may take judicial notice
must be subject of common and general knowledge and its
existence is accepted by public. The test is whether sufficient
notoriety is attached to the fact to make it proper to assume
its existence without proof. (Lee Chow Meng v Public
Prosecutor (1975)).
In the present case, the certificate was only known to the
judge and there was nothing notorious about the certificate.
Thus, it does not pass the test. Accordingly, the judge had
erroneously admitted the certificate in evidence when the
doctrine of judicial notice clearly did not apply.
Cases must be decided on the evidence and that evidence
must be such as is relevant and admissible under the
Evidence Act 1950, that is, it must be either from admitted
documents or the statement of witnesses or be something of
which the court can take judicial notice. The judge could not
without giving evidence as a witness import into a case his
own personal knowledge of particular facts so as to help out
evidence for the respondent which would otherwise be
inadequate to rebut the appellant's case.