Abd Rahman Bin Soltan v Federal Land Development Authority (W-01(IM)(NCvC)-511-10/2020)

The law on adjournments is settled. It is this. The court has the absolute discretion in allowing or refusing an application for adjournment. The fact of the prosecution having not raised any objections to the applicant's counsel's application for adjournment is neither here nor there. The court is not bound to adjourn the hearing of a case as a matter of course merely because the other side has no objections. That the grant or refusal of an adjournment is an exercise of discretion of the court was clearly pronounced by this court in Halaman Perdana Sdn Bhd & Ors v Tasik Bayangan Sdn Bhd [2014] 4 MLJ 1; [2014] 3 CLJ 681:

As regards the prayer to set aside the first decision, we are of the view that it was obviously not within the ambit of r 137. The grant or refusal of an adjournment was entirely an exercise of discretion by the learned judges who heard the leave application. (Emphasis added.)

Of course, it goes without saying such discretion should be exercised judiciously. KJ Aiyar Judicial Dictionary (14th Ed) defined judicial discretion as follows: The judicial discretion is the discretion to know through the law what is just. It must be exercised with vigilance and circumspection according to justice, common sense, and sound judgment (Sarpanch Lonand Gram Panchayat v Ramgiri Goswami AIR 1968 SC 222) ... The discretion which the court has to exercise is a judicial discretion. That discretion has to be exercised on well settled principles. Therefore, the court has to consider the nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of parties, and the effect of the court granting the decree ..." (emphasis added). As exhaustive 4 Submissions (3 Appeals) have been filed on behalf of SP Group in these 3 Appeals, this court cannot foresee any prejudice to SP Group by proceeding with the Online Hearing (3 Appeals); "r 22 Urgent appeals. Any party filing a notice of appeal may in the case of urgency apply in writing to the President who, if satisfied that it is a proper case for an urgent hearing, may order the appeal to be heard at such time convenient to the Court. On such order the party applying shall file copies of the papers lodged in the High Court and his grounds of appeal." (emphasis added). An adjournment of the Online Hearing (3 Appeals) will certainly defeat the purpose of PCA's Decision (r 22 RCA); and "r 6 An advocate and solicitor not to accept brief if unable to appear r24 Advocate and solicitor to be ready for the day fixed for trial (emphasis added). The effect of r 6 LPR has been explained by a unanimous judgment of a five-member coram of the Federal Court in Dato' Sri Mohd. Najib Bin Hj Abdul Razak v Public Prosecutor and other appeals (Adjournment Application) [2022] MLJU 1938, at [18] to [20], as follows -

In this regard, we find Rule 6(a) [LPR] most relevant. ...

Thus, where counsel has accepted a brief, he should be deemed as 'reasonably certain of being able to appear and represent the client on the required day'. [LPR] also appear to recognise the general disposition of the Courts in this country to disfavour adjournments unless cogent reasons are provided. The general rule is that counsel shall make every effort to be ready for trial (and we think by extension appeals) on the day fixed. See: Rule 24(a) and (b) [LPR].

[LPR] are not, in a sense, binding on the Courts. But they are nevertheless binding on members of the Bar who are obliged to comply with them. And, they are indicative of the fact that any disciplined lawyer such as the counsel for the appellant would not have accepted a brief with dates already fixed for hearing unless he was prepared." (emphasis added). By reason of rr 6(a) and 24(a) LPR, if any learned counsel was not ready to submit for any party during the Online Hearing (3 Appeals), he or she should not have accepted the brief to act for that party in the first place. F. Court's approach regarding 3 Appeals G. Issues

(ii) whether court can apply the contra proferentem rule to interpret Article 9.04;

(i)(a) Illegality Issue (DA); and

(i)(b) Issue $ (1^{\mathrm{st}} $ Tort of Conspiracy);

(ii) SP applied for summary judgment against FELDA and FIC; and

(iii) SP filed Appeal (Azimah J's Dismissal of Summary Judgment Application);

(ii) stay Suit 843 pending the outcome of the Arbitration (SP/FIC); H. Appeal 511 "s 8 Extent of court intervention No court shall intervene in matters governed by this Act, except where so provided in this Act. 9 Definition and form of arbitration agreement s 10 Arbitration agreement and substantive claim before court s18 Competence of arbitral tribunal to rule on its jurisdiction (emphasis added). H(1). Is FELDA bound by Article 9.04? [62] The 5th to 8th Defendants submit that FELDA is bound by the Dispute Resolution Clause (Article 9.04 of DA) by virtue of the MOU dated 15.1.2018. Section 9(5) [AA] provides that: However, I cannot accept that contention of the said Defendants. The reference to the other document containing an arbitration clause must be such as to make that arbitration clause part of the agreement. In this case, there is nothing to show that the terms and conditions of the Development Agreement have been incorporated as part of the terms and conditions of the MOU or that FELDA has agreed to arbitrate. I do not accept that the arbitration agreement in the Development Agreement has been incorporated as part of the MOU. Accordingly, FELDA is a non-party and I have no jurisdiction to stay the proceedings commenced by FELDA." (emphasis added). It is to be noted SP has not made FELDA a co-respondent (together with FIC) in the Arbitration (SP/FIC). H(2). Whether Article 9.04 and AA apply to Non-Parties (Article 9.04) [6] The crux of these appeals turns on the law governing a stay of proceedings in relation to non-parties to an arbitration agreement. In the instant case, only Protasco and PT ASU are bound by the arbitration agreement. The other two defendants are not so bound. They fall outside the scope of the agreement. ..." (emphasis added). The above decision in Protasco has been affirmed by Idrus Harun FCJ in the Federal Court in Jaya Sudhir A/L Jayaram v Nautical Supreme Sdn Bhd & Ors [2019] 5 MLJ 1, at [74] and [91], as follows: [74] In its decision, the Court of Appeal in Protasco, held that s 10 [AA] was inapplicable and did not come into play as the second and third defendants were non-parties to the arbitration agreement. The court's power to grant a stay is derived from its inherent power to stay court proceedings pending arbitration in the interests of the justice of the case. The decision in Protasco is instructive and the finding it made that s 10 [AA] is inapplicable to the third parties accords well with our decision in this appeal. [91] The language of [AA] in particular ss 8 and 10 is clear and unambiguous. It does not apply to the third party such as the appellant. ... When [AA] does not apply to a non-party to arbitral proceedings, a logical proposition that follows is that it would be manifestly wrong to extend its policy to the said nonparty. ..." (emphasis added). "ISSUE 1 - IS ARTICLE 9.04 PATHOLOGICAL, UNCLEAR AND NULL AND VOID? [17] In light of prayer 1 wherein the Plaintiff is seeking a declaration that Article 9.04 null and void, I think it best to deal with this first. On this issue, the Plaintiff contends that on a reading of the said Article, the same does not provide any clear or unequivocal intention on the part of the parties to refer disputes under the DA to Arbitration. Alternatively, the Plaintiff submits that even if such intention is there, such clause is ambiguous and uncertain to the extent of being meaningless due to the fact that it also provides the parties the right to seek remedies from Court. [18] In my considered view, whilst Article 9.04 may not be drafted in the best of terms, I don't find the clause pathological or unclear. Obviously, there are two limbs. In the first sentence, it clearly provides that in the event there is a breach, either party shall be entitled to apply to Court for the remedy of specific performance. [19] The second sentence of Article 9.04, then provides that all disputes touching or concerning the agreement etc. shall be final and binding upon the auspices of the KLRCA to be decided by a single arbitrator to be appointed by mutual consent. [20] In my view, the intention of the parties was clear. If there was a breach and in the event a party wanted only a remedy of specific performance, it was entitled to apply to Court for such relief. That is exactly what SPSB did in Suit 477. SPSB in Suit 477 ("as the Plaintiff there") sought an order for specific performance of Clause 6.04 to deliver vacant possession of the 23 lots of land and nothing more. [21] The Plaintiff contends that having filed Suit 477 for specific performance and having made a choice to go to Court, then, all subsequent matters/disputes would also have to be ventilated in Court as well. With respect, I find no merit in such a contention as that would stultify the second line of Article 9.04. [22] In my view, a reading of Article 9.04 clearly reveals the intent of the parties that if there was a claim purely for specific performance, a party was entitled to go to Court. If there were other dispute and differences or where damages was to be claimed, it was clearly the intention that such disputes were to be decided by a single arbitrator under the auspices of the KLRCA. [24] ... On the facts of this case, in my view, there was an Arbitration Agreement as highlighted above with the clear intention of the parties to refer disputes to Arbitration. Further, I do not find the two sentences in Article 9.04 inconsistent or irreconcilable. [25] Additionally, I believe that the intent of the parties in Article 9.04 is also manifested by the conduct of SPSB in Suit 477. ..." (emphasis added). Interpretation (Article 9.04) has been accepted in Wong J's Decision (Enc. 23), at [50], as follows: [50] In any event, the Court in Suit 5 has recently dismissed the application by FIC for a permanent injunction to restrain the arbitration proceedings and in doing so the Court has refused to declare that the arbitration agreement is null and void, inoperative and/or incapable of being performed. I am in agreement with the ruling of the Court in Suit 5." (emphasis added). [29] In this case, the Plaintiff and Defendant had reduced the Agreement in a "complete written form". The Agreement is not a contract which is partly in writing and partly by way of conduct. Based on ss 91 and 92 [Evidence Act 1950], the Defendant cannot rely on extrinsic evidence, including the conduct of the Plaintiff and Defendant (Parties' Conduct), to add TNB's Schedule (Civil Works) to the Agreement. There is another reason why I cannot refer to the Parties' Conduct in the interpretation of clause 1.2(a) to (d) LA. I cite the judgment of Lord Reid in the House of Lords in James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583, at 603, as follows: "I must say that I had thought that it is now well settled that it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made. Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later." (emphasis added). Lord Reid affirmed the above decision in the House of Lords' case of Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235, at 252, as follows- "I must add some observations about a matter which was fully argued before your Lordships. The majority of the Court of Appeal were influenced by a consideration of actings subsequent to the making of the contract. In my view, this was inconsistent with the decision of this House in Whitworth Street Estates (Manchester) Ltd. v. James Miller & Partners Ltd. [1970] AC 583. We were asked by the respondent to reconsider that decision on this point and I have done so. As a result I see no reason to change the view which I expressed in that case. It was decided in Watcham v. Attorney-General of East Africa Protectorate [1919] AC 533 that in deciding the scope of an ambiguous title to land it was proper to have regard to subsequent actings and there are other authorities for that view. There may be special reasons for construing a title to land in light of subsequent possession had under it but I find it unnecessary to consider that question. Otherwise I find no substantial support in the authorities for any general principle permitting subsequent actings of the parties to a contract to be used as throwing light on its meaning. I would therefore reserve my opinion with regard to Watcham's case but repeat my view expressed in Whitworth with regard to the general principle." (emphasis added). If I have accepted the above submission by Mr. See, this will unlawfully allow contracting parties to evade their contractual obligations by acting contrary to the contracts and then unjustly rely on their unlawful conduct to interpret the contracts in their favour. Such an outcome is tantamount to a rewriting of the contract which is contrary to the sanctity of agreements." (emphasis added). Based on the above reasons, when Anand JC decided that the "intent of the parties in Article 9.04 is also manifested by the conduct of [SP] in Suit 477", with respect, this is a legal error in the interpretation of Article 9.04 because SP's conduct in Suit 477 (after the execution of the DA) has no bearing on the construction of Article 9.04 $ [1^{\mathrm{st}} $ Legal Error (Anand JC's Decision)]. [78] Thus the nub of this appeal is, when one has to choose between two competing interpretations, the one which makes more commercial sense should be preferred if the natural meaning of the words is unclear. It is noteworthy that the same approach was taken by Lord Hodge (in the majority decision of Arnold v Britton), where His Lordship accepted the unitary process of construction in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 para 21 that: '... if there are two possible constructions, the Court is entitled to prefer the construction which is consistent with business common sense and to reject the other." (emphasis added). [2 $ ^{n d} $ Interpretation (Article 9.04)]; and Premised on the $ 2^{\mathrm{nd}} $ Interpretation (Article 9.04) (please refer to the above paragraphs 50 to 52), as Suit 477 has already been instituted before the commencement of Arbitration (SP/FIC) -

(ii) Wong J's legal error in the interpretation of Article 9.04 as the "Wong J's $ 1^{\mathrm{st}} $ Legal Error (Enc. 23)". "s 72 Immaterial errors No judgment or order of the High Court, or of any Judge, shall be reversed or substantially varied on appeal, nor a new trial ordered by the Court of Appeal, on account of any error, defect, or irregularity, whether in the decision or otherwise not affecting the merits or the jurisdiction of the Court." (emphasis added). H(4). Whether there was SP's Waiver (Article 9.04) [26] As seen earlier, in Suit 477, SPSB herein ("as the Plaintiff there") was merely seeking specific performance of Article 6.04. In my view, based on the first sentence of Article 9.04, the Defendant was clearly entitled to do so. It is not disputed that in defending Suit 477, the Plaintiff herein had contended and taken the position that the DA was null and void and unenforceable. [27] Having taken that position in Suit 477, the Plaintiff herein contends that SPSB should have then immediately taken steps to stay the suit and refer the same to arbitration as opposed to proceeding with the Summary Judgment application which was subsequently unsuccessful. However, having undertaken the exercise of perusing through the cause papers in Suit 477, I do not agree that SPSB have waived their rights to go to arbitration. In this regard, I would refer to the affidavits exchanged in SPSB's Order 14 application in Suit 477. In particular, I would refer to Enclosure 12 Jilid 10 which was SPSB's averment at paragraphs 41 and 42 in its Affidavit in Reply to the FIG's averments on the issue of validity of the DA whereby SPSB at page 3458 averred as follows:- "41. Further or alternatively, without prejudice to the matters raised above, I am advised by the Plaintiff's solicitors and verily believe that the allegations raised in the paragraphs 12 to 30 of the Defendants' Affidavit in Reply are clearly matters which touch or concern the DA or its construction or effect of the rights, duties and liabilities of the parties therein. [29] Furthermore, it is pertinent to note that in SPSB's Notice for Arbitration, it seeks a declaration that the DA is valid and binding and for FIC to comply with all other obligations EXCEPT the performance of Articles 6.04 which was being sought in Suit 477 or in lieu thereof damages. Further, in paragraph 60(c) of the Statement of Case in the Arbitration Proceedings, SPSB claimed damages in addition to specific performance. [30] Hence, I find no merit in the Plaintiff's contention that the Defendant has waived its right to arbitration."; and [53] In the present case, there is no dispute that the relevant Defendants have not taken any steps in this proceeding. However, the Plaintiffs submit that SPSB has taken various steps in Suit 795 and Suit 477. SPAB has actively participated in Suit 795 by filing affidavits, actively participated in Suit 477 by filing affidavits and submissions and continue to prosecute the 2 suits until today. That is not in dispute. [54] However Suit 795 is not a dispute under the Development Agreement and does not come within the ambit of the Dispute Resolution Clause. As for Suit 477, the first limb of Article 9.04 of the Development Agreement gives a party the option of going to court for specific performance of the Development Agreement and the Court in Suit 5 has decided that SPSB did not waive the arbitration agreement by commencing Suit 477. By the same token, SPSB cannot be taken to have waived the arbitration agreement by virtue of steps taken in Suit 477. This issue has already been decided in Suit 5 and I see no reason to differ from the decision of the learned JC in Suit 5. I am therefore of the view that SPSB has not waived its right to go to arbitration." (emphasis added). "Now, what do waiver and acquiescence mean? By definition, waiver is the abandonment of a right and is either express or implied; it may be implied from conduct which is inconsistent with the continuation of the right (Keene v Biscoe 6 at p 203). A person who is entitled to the benefit of a stipulation in a contract may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver in this sense, depends upon consent (Selwyn v Garfit 7), and the fact that the other party had acted upon it is sufficient consideration (Re Stokoe, ex p Moore 8)." (emphasis added). In view of the Amended Defence (Suit 477), SP should have applied to Azimah J pursuant to O 92 r 4 RC, court's inherent jurisdiction and/or inherent powers for a stay of Suit 477 pending the outcome of the Arbitration (SP/FIC) (along the lines of the application by SP Group in Enc. 23 in Suit 843); H(5). Did Arbitration (SP/FIC) constitute an abuse of arbitral process? [Multiplicity (Litigation/Arbitration)]; and

(ii) the decision of the Court of Appeal in the Appeal (Azimah J's Dismissal of Summary Judgment Application); and

(iii) the Court of Appeal's determination of the Appeal (Azimah J's Striking Out Application) H(6). Should court stay Suit 843 pending disposal of Arbitration (SP/FIC)? This judgment shall refer to the $ 1^{\mathrm{st}} $ Option and $ 2^{\mathrm{nd}} $ Option collectively as the "2 Options". [56] It appears that so far as it relates to the claim by FIC against SPSB, I have no choice but to order a stay of the court proceedings pending arbitration. I have re-considered whether, in view of the mandatory provision in section 10 [AA] and the various cases which have highlighted the lack of any discretion left to the court not to grant a stay where the conditions in section 10 have been complied with, I have any discretion not to stay the court proceedings between FIC and SPSB pending arbitration. I note that in the case of Jaya Sudhir a/I Jayaram v Nautical Supreme Sdn Bhd & Ors [2019] 5 MLJ 1 the Federal Court did expressly say this: [60] ... We accept that courts may decline to give effect to the exclusive jurisdiction clause or arbitration clause where interest of third parties are involved or where there is a risk of parallel proceedings and inconsistent decisions arising out of the conduct of an arbitration. Furthermore, once a duplication between two proceedings is identified it immediately becomes relevant for the court to consider an intersection of two powerful considerations and these are firstly, the desire of courts to hold commercial parties to their bargain and secondly, the desire of courts to avoid disruption and multiplicity or duplicity of litigation, in particular to avoid parallel proceedings and the risk of inconsistent findings, as well as to avoid the causing of inconvenience to third parties (Incitec Ltd v Alkimos Shipping Corp [2004] FCA 698 at pp 12 and 13)." In the present case, there are clearly a duplicity of issues and the risk of inconsistent decisions. In both the court proceedings and the arbitration proceedings, the validity of the [DA] is being challenged. The Plaintiffs submit that the legality of the [DA] is properly raised by FELDA as opposed to FIC. FELDA is a statutory body and pursuant to the LDA, the approval of the Minister in charge of FELDA is required before FELDA's agent FIC can enter into the [DA] with SPSB. As such, it is open to FELDA to challenge the legality of the [DA] in court proceedings in any event, even if the proceedings between FIC and SPSB were to be stayed. In that event, there is obviously a risk of duplicity and inconsistent decisions if both the court proceedings and arbitration proceedings were to proceed concurrently. On the issue of conspiracy too there will be a duplicity and risk of inconsistent decisions. In view of the Federal Court decision in Jaya Sudhir, it appears that I have a discretion not to enforce the arbitration clause since the interests of third parties are involved and there is a risk of parallel proceedings and inconsistent decisions. In any event, since I am of the view, for the reasons stated in the related grounds of judgment, that I should grant an anti-arbitration injunction in this case, it makes sense to dismiss the stay application. The Plaintiffs submit that the decision for En 23 and En 61 which is the Plaintiffs' application to restrain the arbitration proceedings pending the court action, must be diametric. It would be a travesty if I were to allow or dismiss both applications. Either the stay pending arbitration is allowed or the anti-arbitration injunction is dismissed or the stay application is dismissed and the anti-arbitration injunction allowed. A similar situation arose in Lin Ming v Chen Shu Quen [2012] 2 HKLRD 547 where the Hong Kong High Court was faced with a stay and also an injunction application by the opposing parties. The Court took the position that common sense dictates that the court could only adopt one or the other course but not both. Since I am of the view that an anti-arbitration injunction ought to be granted in En 61, accordingly, the stay application is dismissed with costs. However, I would like to point out that even if I were to have no choice but to stay the claims between FIC and SPSB in court pending arbitration, I would still have allowed the anti-arbitration injunction sought in Enclosure 61. [64] As for the $ 5^{th} $ and $ 6^{th} $ Defendants and SPKLVC, they are not parties to any arbitration agreement. Although they have sought for an order to stay the court proceedings against them pending arbitration under the inherent jurisdiction of the Court, they have not shown any authority whereby I can grant the order sought in relation to non-parties to the arbitration agreement when FIC and FELDA refuse to arbitrate their disputes. Accordingly I would dismiss this application." (emphasis added) "Inherent powers of the Court For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court." (emphasis added). [49] Insofar as Tey and Ooi are concerned, as they are not parties to the arbitration agreement, s. 10 of the AA does not come into play. The court's power to grant a stay is derived from its inherent power to stay court proceedings pending arbitration in the interests of the justice of the case. Therefore, the sole issue for consideration is whether the discretion ought to be exercised to allow a stay as sought by Tey and Ooi or to refuse such a stay as submitted by Protasco. At this appellate stage, the question before us is whether the learned judge exercised his discretion correctly in determining that a stay pending arbitration should be granted in respect of Protasco's claims against Tey and Ooi. [51] In deciding on these options, it is necessary to take into consideration and weigh up several competing factors relating to both the arbitration and the court proceedings, including:

(ii) The overlap of the issues that will be raised in the arbitration. ...;

(iii) The cause of action in breach of contract will also, to a considerable extent, touch on the facts relating to the parts played in this venture by Tey, Ooi and Dato' Chong as well as both parties' agents and/or nominees. To that extent there is considerable overlap in the factual matrix giving rise to the breach of contract and the conspiracy to injure/defraud;

(iv) The principal witnesses for the primary parties in the arbitration namely Protasco and PT ASU may be the same actors, namely Tey, Ooi, and Dato' Chong. ... [82] This court is empowered in the exercise of its inherent jurisdiction to determine which set of proceedings ought to proceed first (or in parallel) in order to achieve the most-just result for the parties. ... [90] However, as against this, it does not mean that just because Protasco's claim against PT ASU is stayed, it necessarily follows that the rest of the dispute against Tey and Ooi must necessarily be stayed as a matter of course. As reasoned in Tomolugen, which reasoning we respectfully adopt, the court is bound to strike a balance between the following considerations: [94] We are therefore constrained to reverse the finding of the learned judge of the High Court. His Lordship erred in failing to give any or any reasoned consideration to the relevant principles governing the grant of a stay of proceedings pending arbitration against non-parties, nor the myriad factors to be taken into consideration, applied and weighed so as to achieve a just result." (emphasis added). (Suit), are based on their own factual matrices and have no binding effect." (emphasis added). We reproduce below the Preamble to LDA and s 3 LDA: "Preamble

There shall be established for the purposes of this Act a body, to be known as [FELDA].

[FELDA] shall have the following duties:

to undertake and carry out land development projects;

to promote and assist in the investigation, formulation and implementation of projects for development, settlement and management of land in the Federation;

to promote, stimulate, facilitate and undertake economic, social, residential, agricultural, industrial and commercial development and management and other ancillary activities and services in any area for which [FELDA] has been vested with the power to carry out land development projects or any other area which has been acquired, purchased, leased by or alienated to or is otherwise held or enjoyed by the Authority or its corporations or companies for the performance of its functions;

to undertake and carry out such activities as may assist in the modernization of the agricultural sector in the area mentioned under paragraph (c); and in particular activities relating to the production, utilization, processing and marketing of crops, livestock and fresh water fisheries;

to assist, guide, advise, manage, administer and coordinate economic, social, residential, agricultural, industrial and commercial activities whether within or outside the area mentioned under paragraph (c).

[FELDA] shall have power, for the purpose of the discharge of its duties under subsection (2) -

to carry on all activities the carrying on whereof appears to it to be requisite, advantageous or convenient for or in connection with the discharge of its said duties including the provision of infrastructure and social amenities and other ancillary services;

to promote and co-ordinate the carrying on of any such activities by boards, corporations, companies and other bodies or persons and to give assistance to such boards, corporations, companies and other bodies or persons including financial assistance, by way of grant, loan or otherwise;

with the approval of the Minister to enter into a partnership, joint venture, undertaking, co-operation in any manner, an arrangement for the sharing of profits or to carry on such activities in association or otherwise, with any person, public authority, corporation, company or other body (including the Government of the Federation or any State Government) carrying on or engaging in any such activities and to take or otherwise acquire shares and securities of any such public authority, corporation, company or other body, and to sell, hold on, reissue with or without guarantee, such shares and securities or otherwise dispose of or deal with them; (ca) with the approval of the Minister, to establish or promote the establishment of companies to carry on or engage in any activity which has been planned or undertaken by the Authority (including the taking over of the function of a corporation which has been wound up and dissolved under section 43);

to make loans, subject to such conditions as the Authority may think fit, in accordance with this Act;

to do anything and to enter into any transaction (whether or not involving expenditure, borrowing in accordance with this Act in that behalf, granting of loans or investment of money, the acquisition, use and disposal of any movable or immovable property, including rights) which in its opinion is calculated to facilitate the proper discharge of its functions or is incidental or conducive thereto." (emphasis added). It is clear from the Preamble to LDA and s 3(2)(a) to (e) LDA that one of the objects of LDA as intended by Parliament, is to assist FELDA settlers [Object (LDA)]. Indeed, LDA is a socially benevolent legislation to promote and protect the interest of FELDA settlers. If Suit 843 is stayed pending the disposal of the Arbitration (SP/FIC), SP may rely on s 41A(1)(a) and (b) AA to assert that proceedings in the Arbitration (SP/FIC) and subsequent award of the Arbitrator (Arbitral Award) cannot be disclosed to the public [Confidentiality Requirement (Arbitration)]. Section 41A AA provides as follows: "s 41A Disclosure of information relating to arbitral proceedings and awards prohibited

Unless otherwise agreed by the parties, no party may publish, disclose or communicate any information relating to-

the arbitral proceedings under the arbitration agreement; or

an award made in those arbitral proceedings.

Nothing in subsection (1) shall prevent the publication, disclosure or communication of information referred to in that subsection by a party-

if the publication, disclosure or communication is made -

to protect or pursue a legal right or interest of the party; or

(ii) to enforce or challenge the award referred to in that subsection, in legal proceedings before a court or other judicial authority in or outside Malaysia;

if the publication, disclosure or communication is made to any government body, regulatory body, court or tribunal and the party is obliged by law to make the publication, disclosure or communication; or

if the publication, disclosure or communication is made to a professional or any other adviser of any of the parties. (emphasis added). In this instance, FELDA and FIC have raised, among others, the following five questions-

Illegality Issue (DA);

Illegality Issue (Instrument/Contracts);

Issue ( $ 1^{\mathrm{st}} $ Tort of Conspiracy);

Issue ( $ 2^{\mathrm{n d}} $ Tort of Conspiracy); and

Issue (Breach of 12 Individuals' Fiduciary Duties) (5 Issues). If Wong J has accepted the $ 1^{\mathrm{st}} $ Option to stay Suit 843 pending the outcome of the Arbitration (SP/FIC), all evidence regarding the 5 Issues and Arbitral Award will be subject to the Confidentiality Requirement (Arbitration) and cannot be disclosed to the public. We are firmly of the view that it is in the public interest for the 5 Issues to be tried in open court in the glare of public scrutiny so as to ensure that the Object (LDA) has not been circumvented in this instance [Public Interest (Transparency)] Furthermore, in accordance with Public Interest (Transparency), SP Group cannot be allowed to hide behind the Confidentiality Requirement (Arbitration) because the public, especially FELDA settlers, are entitled to know the true reasons for, among others, the execution of the DA, PA, 2 SPAs (Lots 390 and 29778) and MOU;

public interest requires, if not demands, the 5 Issues to be tried expeditiously in Suit 843 [Public Interest (Expeditious Court Trial)]. If there is any wrongdoing by any party in this instance which defeats the Object (LDA) and which affects adversely the interest of FELDA and FELDA settlers, it is in the public interest for the court in Suit 843 to remedy speedily such a wrongdoing;

in the court's "balancing exercise" (as explained in Protasco and LNH Landscaping) to decide which one of the 2 Options to be adopted, Public Interest (Transparency) and Public Interest (Expeditious Court Trial) far outweigh all the private interests of SP Group (SP Group's Private Interests);

this court cannot envisage any injustice which may be occasioned to SP Group's Private Interests due to the exercise of Wong J's discretion to accept the $ 2 ^{n d} $ Option. This is because SP Group has every right to oppose Suit 843 to the hilt. Furthermore, SP Group has an option to counterclaim against FELDA and FIC in Suit 843. It is therefore clear that SP Group's Private Interests is not adversely affected in any manner by the High Court's adoption of the $ 2 ^{n d} $ Option; and

as explained in the above paragraph 61, the Arbitration (SP/FIC) constitutes an abuse of arbitral process; and

FELDA and FIC have a right to sue SP Group, 12 Individuals, Partners (Messrs YYA) and PTG. This right cannot be curtailed by SP Group's Private Interests. H(7). Appeal 511

Premised on the evidence and reasons stated in the above Parts H(1) to H(6), we affirm Wong J's Decision (Enc. 23). Additionally, Wong J's Decision (Enc. 23) involved an exercise of judicial discretion by the court of first instance. Sitting in an appellate capacity, we do not find any appealable error which warrants a reversal of Wong J's Decision (Enc. 23) - please refer to the Federal Court's judgment delivered by Mohd. Dzaiddin FCJ (as he then was) in Vijayalakshmi Devi D/O Nadchatiram v Dr Mahadevan S/O Nadchatiram & Ors [1995] 2 MLJ 709, at 722. I. Appeal 519

We reproduce below ss 50 and 51 of the Specific Relief Act 1950 (SRA) as well as O 29 r 1(1) RC: "s 50 SRA Preventive relief how granted Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual. s 51 Temporary and perpetual injunctions

Temporary injunctions are such as are to continue until a specified time, or until the further order of the court. They may be granted at any period of a suit, and are regulated by the law relating to civil procedure.

A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. O 29 r1 RC Application for injunction

An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party's originating process, counterclaim or third party notice, as the case may be." (emphasis added).

According to Wong J's Decision (Enc. 61), at [41], [43], [44] and [57] to [59] - [41] I am of the view that, as regards a non-party, the court would exercise its discretion to grant an interim anti-arbitration injunction sought by a non-party if:

there are serious issues to be tried;

the balance of convenience lies in favour of granting the injunction; and

damages would not be an adequate remedy. (See Jaya Sudhir a/I Jayaram v Nautical Supreme Sdn Bhd & Ors [2019] 5 MLJ 1; Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193). [43] I am of the view that FELDA has met the threshold of showing that there are serious issues to be tried in this case. These issues are as follows:

whether the [DA] contravenes s 3(3)(c) [LDA] and therefore is null and void/or unenforceable?

if the [DA] is null and void ab initio due to the contravention of s 3(3)(c) [LDA], whether the [PA], lease agreement, SPAs, MOTs and DoAL are also null and void ab initio?

if the [DA] is null and void ab initio, whether the arbitration clause therein is valid and enforceable?

whether the conspirators conspired to cause FELDA and FIC to execute the letter of award, [DA], [PA], the lease agreement, the SPAs, the MOTs, DoAL and MOU ('disputed agreements & instruments') and if so, whether this renders the disputed agreements & instruments null, void and/or unenforceable?

whether the SPAs dated 2 December 2015 and 7 November 2016 in respect of Lot 390 and Lot 29788 and their consequent transfer via the MOTs are unenforceable, null and void and defeasible ab initio by reasons of fraud, void or insufficient instrument or that the titles of Lot 390 and Lot 29788 were unlawfully acquired by SPSB and SPKLVC in contravention of the LDA or the power of attorney read with the development agreement?

whether there is a total failure of consideration on the part of SPSB and SPKLVC under the SPAs and MOTs and therefore, they are unenforceable, null and void and liable to be set aside ab initio?

whether the MOU was executed to cover up the first conspiracy perpetrated by the conspirators and therefore, is unenforceable, null and void and liable to be set aside ab initio?

whether FELDA's previous board, FELDA's previous management, FIC's previous board and FIC's previous management have breached their fiduciary duties towards FELDA and FIC? and

whether [SP Group] and their solicitors, Messrs YYA dishonestly assisted FELDA's previous board, FELDA's previous management, FIC's previous board and FIC's previous management to breach their fiduciary duties towards FELDA and FIC? [44] On the balance of convenience, FELDA has raised various cogent reasons in support of its application. [57] I have already dealt with the issue of FELDA's proprietary rights to its land. There is merit in the contention that damages will not be an adequate remedy as the arbitration proceedings will affect FELDA's proprietary rights in the FELDA Semarak lands and it will also affect FELDA's right to be heard although FELDA can also choose to be a witness in the arbitration proceedings. However, I do agree that SPSB has not shown that it is in the position to pay any substantial damages to FELDA and FIC. SPSB has not filed its audited accounts for the financial year from 1 January 2017 onwards. SPSB's audited accounts for the financial year ended 31 December 2016 show that they do not have any revenue and only have a reserve of RM10,797,995 whereas the FELDA Semarak lands have a total commercial value of up to RM1.062 billion. So I agree with the plaintiffs' submission that they have shown that damages would not be an adequate remedy since SPSB has not demonstrated its ability to pay damages. [59] Taking into consideration all the relevant factors I am of the view that it would be just and convenient and the fairest approach to all parties to grant the injunction prayed for by the plaintiffs. Enclosure 61 is accordingly allowed with costs." (emphasis added).

Firstly, Wong J has applied the right tests and taken into account all the relevant considerations in granting an interim injunction under ss 50 and 51(1) SRA read with O29 r1(1) RC to restrain, among others, SP, from proceeding with the Arbitration (SP/FIC).

Secondly, Wong J's Decision (Enc. 61) is supported by the following reasons:

as explained in the above paragraphs 50 to 53, premised on the Business Common Sense Interpretation (Commercial Contract) and the contra proferentem rule of construction, SP has no Right to Arbitrate pursuant to Article 9.04 (upon the filing of Suit 477);

SP's Right to Arbitrate under Article 9.04 has been waived by SP - please refer to the above paragraphs 57 to 60; and

according to the above paragraph 61, the Arbitration (SP/FIC) constitutes an abuse of arbitral process; and

Wong J's Decision (Enc. 61) is in consonance with Public Interest (Transparency) and Public Interest (Expeditious Court Trial) - please see the above sub-paragraphs 67(1) and (2).

Lastly, Wong J's Decision (Enc. 61) concerned an exercise of discretion by the court of first instance. As an appellate court, we cannot find any reason for us to intervene regarding Wong J's Decision (Enc. 61).

We reproduce below ss 41, 52(1) SRA and O 15 r 16 RC: "s 41 SRA Discretion of court as to declaration of status or right Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in that suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so. s 52 Perpetual injunctions when granted

Subject to the other provisions contained in, or referred to by, this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication. O 15 r 16 RC Declaratory judgment No action or other proceeding shall be open to objection merely on the ground that a declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not consequential relief is or could be claimed." (emphasis added). J(1). Prayer 1 (Suit 5) and Prayer 2 (Suit 5)

Prayer 1 (Suit 5) and Prayer 2 (Suit 5) concern issues which are still pending in Suit 843. Prayer 1 (Suit 5) and Prayer 2 (Suit 5) can only be decided by the High Court in Suit 843 after a trial. Accordingly, we make no order regarding Prayer 1 (Suit 5) and Prayer 2 (Suit 5) in Appeal 1265.

As explained in the above paragraphs 57 to 60, SP's Right to Arbitrate under Article 9.04 had been waived by SP. With regard to SP's Waiver (Article 9.04), we are of the view that there is a plain error on the part of the court of first instance which warrants appellate intervention. Hence, this court exercises its discretion under s 41 SRA read with O 15 r 16 RC to grant Prayer 3 (Suit 5).

In view of the above paragraph 61, the Arbitration (SP/FIC) constitutes an abuse of arbitral process. With respect, the High Court should have granted Prayer 4 (Suit 5). We therefore exercise our discretion to grant a declaration as applied for in Prayer 4 (Suit 5).

In Suit 5, FIC has applied for, among others, a "permanent" injunction to restrain SP, SP's directors, agents, servants and nominees from continuing with the Arbitration (SP/FIC). It is to be noted that ss 50, 51(2) and 52(1) SRA have used the term "perpetual" injunction.

We are of the respectful view that Anand JC should have granted a perpetual injunction in this case. Our reasons are as follows:

the $ 1^{\mathrm{st}} $ Legal Error (Anand JC's Decision) and $ 2^{\mathrm{nd}} $ Legal Error (Anand JC's Decision) have been made with regard to the interpretation of Clause 9.04 - please refer to the above paragraphs 49 to 53. A perpetual injunction should be granted under s 52(1) SRA to restrain SP from breaching Article 9.04 [when SP commenced and proceeded with Arbitration (SP/FIC) despite having previously filed Suit 477];

as explained in the above paragraphs 57 to 60, there was a plain error by the High Court in respect of SP's Waiver (Article 9.04);

the Arbitration (SP/FIC) constitutes an abuse of arbitral process - please see the above paragraph 61; and

the above evidence and reasons compel us to grant Prayer 5 (Suit 5). K. Outcome of 3 Appeals

Premised on the above evidence and reasons -

Appeal No. 511 is dismissed with costs of RM10,000.00 (subject to allocatur fee) and Wong Chee Lin J's Decision (Enc. 23) is consequently affirmed;

Appeal No. 519 is dismissed with costs of RM10,000.00 (subject to allocatur fee) and Wong Chee Lin J's Decision (Enc. 61) is upheld; and

Appeal No.1265 is allowed in part with the following orders-

Prayer 3 (Suit 5), Prayer 4 (Suit 5) and Prayer 5 (Suit 5) (as referred to in the above paragraph 25) are granted;

Anand JC's Decision is set aside; and

subject to allocatur fee, costs of RM20,000.00 shall be paid by SP to FIC.

In closing, it is clearly in the public interest for Suit 843 to be completed expeditiously. WONG KIAN KHEONG Judge Court of Appeal DATE: 12 MAY 2023 Counsel for - Dato' Harpal Singh Grewal, Appellants in Appeal No. 511, Mr. Amrit Pal Singh, Appellants in Appeal No. 519 and Respondent in Appeal No. 1265: Mr. Ng Jun Wei and Ms. Rany Rao (Messrs Amrit & Company) Counsel for Respondents in Appeal No. 511, Mr. Kumar Kanagasingam, Respondents in Appeal No. 510 and Mr. Mong Chung Seng, Appellant in Appeal No. 1265: Mr. Wong Han Wey and Ms. Medha Ong Ann Ting (Messrs Lee Hishammuddin Allen & Gledhill)