The respondents breed fish at the mouth of a river called Sungai Kuala Gula. From time to time, they harvest the fish from the river and sell them. The appellant owns an oil palm plantation and operates a palm oil processing factory at a site upriver. On January 1990, the plaintiffs noticed effluent which they described as ‘black water’ flowing into the area in which they were rearing fish. The effect of the ‘black water’ upon the fish was disastrous and eventually all the fish died. The respondents were concerned and one of them (PW3) traced the effluent back to a tidal gate on the appellant’s property. He then went into the appellant’s premises and saw effluent being discharged from the appellant’s waste disposal area. Later, the Fisheries Department investigated the incident and found the river water in the area in question was polluted.
Two years after the incident, the respondents filed their action in the sessions court. After a trial that lasted several days, the sessions court gave judgment for the appellant. The respondents successfully appealed. The appellant subsequently appealed to the Court of Appeal to reverse the High Court’s decision and to restore the verdict of the sessions court. The appellant suggested that the High Court was wrong to have interfered with the findings of fact made by the sessions court. The appellant submitted that the learned intermediate appellate judge purported to make his own findings of fact instead of accepting those made by the sessions court. The appellant also submitted that the intermediate appellate judge disregarded the fact that the eyewitness evidence led by the respondents was contradicted by independent documentary evidence.
The Sessions Court initially found against the Plaintiffs however this decision was overturned by subsequent High Court and Court of Appeal decisions. The last Court held, dismissing the appeal and affirming the orders by the High Court: Appellate courts do not make findings of fact. They merely review the findings of primary facts made by a trial court. They may, however, draw their own inferences from the primary facts and if these differ from those drawn by the trial court, they are entitled to see what accounts for the difference (see p 30E –F). A reading of the sessions courts’ judgment revealed at least two infirmities. There was no judicial appreciation of the Fisheries Department’s specific findings and the sessions court failed to take any or sufficient account of the uncontradicted evidence of one of the respondents who gave evidence as to the source of the effluent that had flowed into the river.
The sessions court appeared to have been much impressed by the insignificant fact of the colour of the water which the respondents’ witness said was black and photographs showed it as brownish. What it then boiled down to was a question of description in the particular dialect. In the court’s view, ‘black water’ was as good a description as any other simile.