1. Wong Thang Song v 1. Tan Ah Kek (BA-24-421-04/2017)

WONG THANG SONG

CHONG TIN KA (NO. K/P:531114-01-5431) …PLAINTIF-PLAINTIF 2

LEO JAD NGO …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 1) A. INTRODUCTION [1] The Plaintiffs have filed this Originating Summons (Enclosure 1) seeking for the following reliefs: i. a declaration that the Lease Agreement dated 1.12.2006 made between the Plaintiffs and the Defendants is lawful and valid until its expiry on the 31.10.2024; ii. a declaration that the notice of termination dated 4.8.2011 issued against the Plaintiffs by the Defendants’ solicitors, Messrs. Rajadevan & Associates is unlawful and bad in law; 3 iii. a declaration that the amendment to the category of use of the land by the Selangor State Authority from “Agriculture” to “Industry” by a gazette notification No.1565 dated 27th May, 2010 renders the factory erected on the Defendants land for a light industrial purpose held under H.S(M) 619 P.T No.7854 Mukim Bukit Raja, State of Selangor, having its address at Lot 7854, KL1, Kg. Baru Subang, section U9, 40150 Shah Alam Darul Ehsan lawful; iv. a declaration that the yearly issuance of licence under the category “Industry” by the Shah Alam Town Council (Majlis Bandaraya Shah Alam) since 2009 for the operation of the factory for a light industrial purpose by the Plaintiffs, as Lessees and or their Tenant erected on the Defendants land held under H.S(M) 619, P.T No.7854 Mukim Bukit Raja, State of Selangor, having its address at Lot 7854, KL1, Kg. Baru Subang, section U9, 40150 Shah Alam Darul Ehsan renders the factory and the Lease Agreement dated 1.12.2006 lawful; v. an order that the Defendants do pay the premium to the Petaling Land Office pursuant to the approval given based on the Defendants application dated 5.6.2006 for the conversion 4 of the said land held under H.S(M) 619 P.T No.7854 Mukim from the category “Agriculture” to “Industry” within 14 days from the date of this order and surrender the aforesaid Issue document of title to the said land to the Land Office for issuance of a title in continuance with the category “Industry”. vi. In the event, if the approval has lapsed, an order that the Defendants do file a fresh application for the conversion of the land under H.S(M) 619, P.T No.7854 Mukim Bukit Raja, State of Selangor, having its address at Lot 7854, KL1, Kg. Baru Subang, section U9, 40150 Shah Alam Darul Ehsan to the relevant authority from “Agriculture” to “Industry” as agreed to under the Lease Agreement dated 1.12,2006, within Fourteen (14) days form the date of the order of this Honorable Court. vii. Alternatively, the Plaintiffs pray that: a) the Defendants pay the Plaintiffs RM350,000.00 (Ringgit Malaysia Three Hundred And Fifty Only) as a liquidated sum as provided for under clause 6.4 (1) of the lease 5 Agreement dated 1.12.2006 within Fourteen (14) days from the date of the order of this Honourable Court; b) the Defendants pay the Plaintiffs RM100,000.00 (Ringgit Malaysia One Hundred Thousand) only being the liquidated sum for loss of business as provided for under clause 6.4

(ii) of the Lease Agreement dated 1.12.2006. viii. Costs; ix. Such other reliefs or further reliefs which this Honourable Court deems fit and just. B. BACKGROUND FACTS [2] The background facts and the chronology of events surrounding the present case are as follows:

2.1 The dispute in the present case concerns a piece of land held under H.S(M) 619, P.T No.7854 Mukim Bukit Raja, State of Selangor, having its address at Lot 7854, KL1, 6 Kg. Baru Subang, section U9, 40150 Shah Alam Darul Ehsan (“the said land”).

2.2 The Defendants (Tan Ah Kek and Leo Jad Ngo) are the registered owner of the said land.

2.3 By a Lease Agreement dated 1.12.2006, the Defendants had agreed to lease the said land to the Plaintiffs (Whong Thang Song and Chong Ting Ka) for a period of 18 years beginning from 1.12.2006 to 31.10.2024.

2.4 Recital C of the Lease Agrement stipulates that currently the category land use of the said land is “AGRICULTURAL” and the Defendants have applied to convert the said land into a light industrial land with their own cost and expenditure.

2.5 The salient terms contained in the Lease Agreement are as follows: i. Use of Demises Premises (Clause 5.3) 7

The Lessee shall use the said land premises for commercial purposes only.

The Lessee is permitted to build a steel structure factory which shall comply with all the conditions that imposed or required by the authority for such factory on the vacant land to support Lessee’s commercial use and is strictly not permitted to use the said premises for any illegal or immoral activity.

The Lessee shall apply to the necessary authorities a certificate of fitness upon lessee completing the steel structure factory. ii. Assignment, SubLetting (Clause 5.4)

5.4.1 The Lessee is permitted to create a sub-lease or transfer or assign the Lease hereby created or part with the possession of the said premises or any part thereof

5.4.2 The Lessee may sub let the Premises or any part thereof for a period not exceeding 16 years but subject to the unexpired term of the Lease herein provided that the 8 subtenancy contains covenant by the sub-tenant to obey and perform the covenants contained herein. The term of the subletting shall automatically expire at the expiration or sooner determination of this Lease. iii. Nuisance (Clause 5.5) The Lessee shall not do or permit anything to be done in or upon then said premises or any part thereof anything that may be or become a nuisance or cause annoyance or damage to the Landlords or to the owners or occupants of the adjacent land or property or to the neighbourhood of the said premises. iv. The Lessor Covenants (Clause 6) The Lessors hereby covenant with the Lessee as follows:

6.1 …

6.2 …

6.3 To allow the Lessee to erect steel structure factory which shall comply with the requirement 9 of the authorities for the purposes of the Lessee business.

6.4 …

2.6

2.7 Thereafter on 23.7.2009, the Plaintiffs had entered into a Tenancy Agreement of the steel structure factory with a company, Rock-Crystal Sdn Bhd (”Rock Crystal”) wherein the Plaintiff agreed to rent the factory to Rock Crystal for a period of 2 years commencing from 1.9.2009 until 31.8.2011.

2.8 Before the expiry of the tenancy period, the Plaintiffs had received a letter dated 21.6.2011 from a solicitors firm, Messrs. Rajadevan & Associates who acted for the Defendants. In this letter dated 21.6.2011, the Defendants had given the Plaintiffs a notice to terminate the Lease 10 Agreement. The relevant paragraphs read as follows: “ … d) you have entered into Sub-Lease Agreements without giving the our clients a copy of the Sub-Lease Agreement for verification. e) that pursuant to Clause 2 of the Said Lease Agreement you are to pay the agreed rental on or before the 7th day of each month. f) that you have been consistently late in paying the agreed rental. g) that pursuant to Clause 5.3 of the Said Lease Agreement you were permitted to build a steel structure on the Said Property and you were to apply to the relevant authorities for the Certificate of Fitness. h) you have yet to obtain the Certificate of Fitness from the relevant authorities. 11 i) have constructed a retaining wall on the said land which constitutes a hazard to the neighbouring land at Lot 7848. i) That pursuant to Clause 5.5 of the Said Lease Agreement you shall not do anything upon the Said Property which may become a nuisance to the occupants of adjacent lands of the Said Property. j) that you have constructed a retaining wall on the Said Property which constitutes a hazard to the neibouring land at Lot 7848. k) that you have in fact encroached into the neighbouring lot. TAKE NOTICE that we are instructed by our client to demand from you which we hereby do that pursuant to clause 9 of the Said Lease Agreement you within 30 days of this letter rectify the breaches of the Said Lease Agreement failing which our client will exercise their right to terminate the Said Lease Agreement.”. 12

2.9 Upon the Plaintiffs’ failure to remedy the breaches set out in the letter dated 21.6.2011, the Defendants had issued a Notice of Termination dated 4.8.2011 terminating the Lease Agreement.

2.10 Consequent to the termination of the Lease Agreement, a dispute arose between the Plaintiffs and the Defendants.

2.11 The dispute has led the Defendants to initiate a civil suit against the Plaintiffs. The suit was filed on 25.8.2011 at the Shah Alam High Court (No.22NCVC-991-2011) (“Suit 991”). In suit 991, the Defendants claimed for inter-alia vacant possession of the said land, double rental and damages for alleged breaches of the terms of the Lease

2.12 The Plaintiffs (in Suit 991) disputed the Defendants’ (in suit 991) claims and in their Statement of Defence, they had pleaded that it was instead the Defendants who were actually in breach of the Lease Agreement for failing to 13 obtain the requisite approval from the State Authority to change the category of land use from agriculture to commercial.

2.13 Hence, the Plaintiffs (in suit 991) had counterclaimed for an order that the Defendants be directed to apply and obtain the necessary approval from the State Authority. The Plaintiffs also claimed damages in respect of demolition and renovations costs that they have incurred.

2.14 On 7.11.2013, the High Court Judge had dismissed both the Defendants’ claims as well as the Plaintiffs’ counterclaims.

2.15 Dissatisfied, the Defendants filed an appeal in the Court of Appeal. On 7.4.2014, the Court of Appeal had allowed the Defendants’ appeal.

2.16 Against the said decision of the Court of Appeal, the Plaintiffs filed two Notices of Motion to the Federal Court 14 namely; for leave to appeal against the decision of Court of Appeal and to produce fresh evidence.

2.17 The Federal Court on 26.7.2016 had dismissed both the Notices of Motion. C. THE PLAINTIFFS’ CASE [3] The Plaintiffs’ application is supported by the following affidavits: i. Affidavit in Support affirmed by Wong Thang Song on 11.4.2017 (Enclosure 2); and ii. The Plaintiffs’ Affidavit in Reply affirmed by Wong Thang Song on 22.11.2017 (Enclosure 19). [4] In the affidavits in support of their application, the Plaintiffs had contended the following: i. The Lease Agreement is valid as the Defendants had agreed to seek amendments to the category of land use 15 from agriculture to industry to enable the Plaintiffs to use the land for commercial use. ii. Through CEC Project Management, the Defendants did apply to the Land Administrator Petaling Land Office for the amendment of the category of land use from agriculture to industry. iii.. The State Authority had approved the Defendants’ application for the change of the category of land use. iv. An official search at the Petaling Land Office had revealed that the application for conversion was approved by the Land Office and certain amount of premium was required to be paid by the Defendants to the Land Office. v. The Defendants however failed to pay the premium required. vi. The title in continuation with the endorsement “Industry” was not issued by the Land Office to the said land. 16 vii. The Majlis Bandaraya Shah Alam has been issuing licences to the factory under the category “Industry” since 2010 up to the year 2017 to enable the factory to be operated lawfully. viii. The Selangor State Authority vide a Gazette Notification No.1565 dated 27th May, 2010 amended the category of land use from “agriculture” to “Industry” rendering the factory erected on the said land to be lawful. ix. The Lease Agreement is valid and lawful because the Defendants had been collecting rental from the Plaintiffs since 2006 without any complaint of breach on the part of the Plaintiffs. x. In the grounds of judgment of the High Court Judge in suit 991, the Learned Judge had made a finding that the Defendants themselves were in breach of the Lease Agreement. Being in breach of the Lease Agreement, the Defendants cannot be allowed to take advantage of the breach by the Plaintiffs. Therefore, it is unjust for the 17 Defendants to raise the issue of validity of the Lease Agreement after 6 years has lapsed. The Defendants should have fulfilled their obligation in obtaining the approval from the State Authority to change the category of land use. D. THE DEFENDANTS’ OBJECTION [5] The Defendants had opposed the Plaintiff’s application by filing an Affidavit in Reply affirmed by Leo Jad Ngo on 30.10.2017 (Enclosure 17). [6] The Defendants had opposed the Plaintiffs’ application on the sole ground that the matter is res judicata. The Plaintiffs’ application is thus an abuse of court process. E. ANALYSIS AND FINDINGS OF THE COURT [7] The Plaintiffs in the present originating summons (Enclosure 1) primarily sought for an order to declare that the Lease 18 Agreement dated 1.12.2006 is lawful and valid until its expiry on the 31.10.2024 and the termination of the Lease Agreement vide letter dated 4.8.2011 is unlawful and bad in law. Therefore, essentially the subject matter before this Court pertains to the validity of the Lease Agreement. [8] The Defendants on the other hand contend that the subject matter in the Plaintiffs’ application is res judicata. The Defendants had contended that the subject matter has been litigated in the Shah Alam High Court then appealed to the Court of Appeal. [9] It was further contended by the Defendants that the Court of Appeal had declared the Lease Agreement a void agreement, and consequentially ordered vacant possesion of the said land to the Defendants. As the subject matter is res judicata, the Plaintiffs’ application tantamounted to an abuse of court and hence must be dismissed. THE LAW ON RES JUDICATA 19 [10] The legal principles of res judicata has been comprehensively elaborated by the Supreme Court in the case of Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783. Peh Swee Chin SCJ had stated at page as follows: “What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicature. When a matter between two parties has been adjudicated by a Court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that it is in the public interest that there should be finality in litigation - interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action - nemo debet bis vexari pro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. 20 Thus, there are in fact two kinds of estoppel per rem judicatum. The first type relates to cause of action estoppel and the second, to issue estoppel, which is a development from the first type. The cause of action estoppel arises when rights or liabilities involving a particular right to take a particular action in Court for a particular remedy are determined in a final judgment and such right of action ie. the cause of action, merges into the said final judgment; in layman's language, the cause of action has turned into the said final judgment. The said cause of action may not be re-litigated between the same parties because it is res judicata. There is one school of thought that issue estoppel applies only to issues actually decided by the Court in the previous proceedings and not to issues which might have been and which were not brought forward, either deliberately or due to negligence or inadvertence, while another school of thought holds the contrary view that such issues which might have been and which were not brought forward as described, though not actually decided by the Court, are still covered by the doctrine of res judicata ie. doctrine of estoppel per rem judicatum. 21 We are of the opinion that the aforesaid contrary view is to be preferred; it represents for one thing, a correct even though broader approach to the scope of issue estoppel. It is warranted by the weight of authorities to be illustrated later. It is completely in accord or resonant with the rationales behind the doctrine of res judicata, in other words, with the doctrine of estoppel per rem judicatum. It is particularly important to bear in mind the question of the public policy that there should be finality in litigation in conjunction with the exploding population; the increasing sophistication of the populace with the law and with the expanding resources of the Courts being found always one step behind the resulting increase in litigation. It is further necessary at this stage to understand the import of the words in the said famous statement ie "... every point which properly belonged to the subject of litigation... " which Somervell LJ explained in Greenhalgh v. Mallard [1947] 2 All ER 255, 257 as follows: ... res judicata for this purpose is not confined to the issues which the Court is actually asked to decide, but it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them.”. 22 [11] In the case of Joseph bin Paulus Lantip & Ors v Unilever Plc [2012] MLJU 1759, the Federal Court held that, “[30] Thus, for the doctrine of res judicata to apply, the same issue must have been raised and decided in an earlier proceeding or action in which the parties are represented. And for that reason, it is not open for the same issue to be litigated afresh between the same parties. This doctrine is based on the public policy that there must be finality and conclusiveness in judicial decisions and the right of the individual from being vexed by multiplicity of suits at the instance of an opponent. In Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another 1960 AIR S.C. 941, the Indian Supreme Court stated the principle as follows: “(7) The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or 23 proceeding between the same parties to canvass the matter again.”. [12] Before this Court can determine whether the subject matter is res judicata as contended by the Defendants or otherwise, a close scrutiny of Suit 991 is inevitable. [13] Now, following the disputes between the Defendants and the Plaintiffs pertaining to the Lease Agreement, the Defendants had on 25.8.2011 filed the Suit 991 in the Shah Alam High Court against the Plaintiffs. [14] In Suit 991, the Defendants claimed for vacant possession of the said land and double rental. The Defendants also claimed for damages arising from the Plaintiffs’ breaches of the terms of the Lease Agreement. [15] The Plaintiffs had defended the action. In their statement of Defence, they had pleaded that it was the Defendants who had 24 breached the Lease Agreement for not obtaining the approval from the State Authority to change the category of land use from agriculture to commercial use. The change of the category land use would enable the Plaintiffs to apply for certificate of fitness of the steel factory erected which they had erected on the said land. [16] The Plaintiffs had also filed a counter claim inter alia seeking for an order that the Defendants be directed to apply to the State Authority for change the category of land use. The Plaintiffs also claimed for damages namely; for the cost of demolition and renovations of the existing structure incurred by them as well as general damages. [17] After a full hearing, on 7.11.2013 the High Court judge had dismissed both the Defendants’ claims and the Plaintiffs counterclaims. [18] Against the dismissal of their action, the Defendants appealed to the Court of Appeal. 25 [19] On 7.4.2014, the Court Of Appeal allowed the Defendants’ appeal, and set aside the decision of the High Court and consequently entered judgment in favour of the Defendants as per prayers 15(a) p 21 of the Appeal Records (Vol.1), and granted vacant possesion of the said land to the Defendants. [20] Disatisfied with the decision of the Court of Appeal, the Plaintiffs filed two motions in the Federal Court namely; for leave to appeal to the Federal Court and leave to produce new evidence. However, both motions were dismissed. [21] It is pertinent to note here that before Suit 991 was filed by the Defendants, the Defendants had issued a letter dated 2.6.2011 to the Plaintiffs demanding the Plaintiffs to rectify all the breaches set out in the said letter within thirty (30) days. In the same letter, the Defendants had given notice that in the event that the Plaintiffs fail to comply with the demand, they would exercise their rights under the Lease Agreement to terminate the agreement. 26 [22] It is also pertinent to note that the Defendants in paragraph 11 of their Statement of Claim in Suit 991 had pleaded that the Plaintiffs had failed to comply the said notice. [23] The Plaintiffs’ failure in complying the said notice had resulted in the Defendants terminating the Lease Agreement vide Notice of Termination dated 4.8.2011. This was pleaded at paragraph 12 of the Defendants’ statement of claim. [24] For ease of reference, the two paragraphs are reproduced below.

Melalui surat Peguamcaranya Tetuan Rajadevan & Associates bertarikh 21/06/11 Plaintif telah selaras dengan Klausa 9 Perjanjian tersebut memberi Defendan-Defendan masa 30 hari untuk membetulkan semua keingkaran Perjanjian Penyewaan seperti yang dihuraikan diatas tetapi Defendan-Defendan gagal, engkar dan/atau abai dari membuat demikian.

Plaintif selanjutnya selaras dengan Klausa 9 telah melalui surat Pegumcaranya Tetuan Rajadevan & Associates bertarikh 27 04/08/11 memberi Notis kepada Defendan untuk menamatkan perjanjian tersebut dan menuntut milikan kosong Hartanah Tersebut. [25] On the premise that the Lease Agreement had been terminated, the Defendants thereafter commenced Suit 991 against the Plaintiffs claiming inter alia for vacant possession of the said land. [26] Upon close perusal of the Plaintiffs’ statement of defence in Suit 991, this Court has found that nowhere in the Plaintiffs’ statement of defence that they had disputed the Defendants’ paragaraph 12. [27] In this instance, therefore the inescapable conclusion from the Plaintiffs’ own pleading is that the Plaintiff did not challenge the termination and therefore the termination of the Lease agreement was accepted. The Plantiffs’ stance in accepting that the Lease Agreement had been terminated is glaringly 28 obvious in their counterclaim. In their counterclaim, the Plaintiffs sought for the following reliefs:

Defendan-Defendan memohon penghakiman terhadap Plaintif-Plaintif seperti berikut:- a. Plaintif-Plaintif diperintahkan untuk memperolehi kelulusan untuk tukar kegunaan Tanah tersebut. b. Plaintif-Plaintif diperintahkan untuk Jumlah kerugian yang akan ditanggung untuk merobohkan Dinding dan membina Dinding semula serta kos ubahsuaian. c. Plaintif-Plaintif diperintahkan untuk membayar Gantirugi Am. d. Sebarang refill dan/atau pelepasan yang dianggap adil dan munasabah. [28] More so, against the claim for vacant possession of the said land by the Defendants, the Plaintiffs did not at all seek for an order to declare that the termination of the Lease Agreement by the Defendants, vide Notice of Termination dated 4.8.2011 to be invalid, null and void. 29 [29] Hence, this Court is of the considered view that what the Plaintiffs were actually defending in Suit 991 was not so much of defending the Lease Agreement but they are more interested in claiming damages which they alleged to have suffered following the termination of the Lease Agreement by the Defendants. [30] From what has been revealed in the grounds of judgment of the Court of Appeal, the High Court had dismissed the Defendants’ claim upon rejection of the submission put forward by counsel for the Defendants that the said Lease Agreement was an illegal agreement as it contravenes section 24 of the Contract Act 1950 because the category of land use was ‘agriculture’ and therefore the construction of factory on the said land was not permitted. 30 [31] The High Court judge in rejecting the submission by the Counsel for the Defendants on the issue of illegality of the agreement has stated as follows: 12 Adalah tidak adil setelah enam tahun pihak Defendan mendirikan kilang tersebut dan menyewakan kilang tersebut kepada pihak ketiga baru kini pihak Plaintif menimbulkan isu kesahihan perjanjian tersebut padahal mengikut perjanjian, pihak Plaintif yang sepatutnya mengambil langkah untuk mendapatkan kebenaran untuk penukaran kategori tanah tersebut. Oleh yang demikian Mahkamah ini menolak tuntutan Plaintif begitu juga Tuntutan Balas Defendan terhadap Plaintif juga ditolak. Mahkamah juga memerintahkan pihak-pihak menanggung kos masing-masing. [32] This Court must mention here that it is not in dispute that the issue of illegality raised by the Defendants’ counsel was not pleaded in the Defendants’ statement of claim, and had only surfaced before the High Court at the end of the trial. 31 [33] It is also important to note that the only issue to be decided in the appeal before the Court of Appeal is the illegality of the Lease Agreement entered between the parties. [34] On the issue of illegality, the findings of the Court of Appeal are as follows: [16] In our view the learned Judicial Commissioner fell into error when he ruled that it was unfair on the respondent for the appellants to raise the issue to illegality some six years after the execution of the agreement and after the respondents had expended money on the said land by building the factory. In deciding the way he did the learned Judicial Commissioner had missed the point of law entirely which is that the Court is duty bound to take notice of the illegality whether or not it is pleaded if the facts showing the illegality are before the Court. The duty of the Court is to give effect to the law; not to be a party to the enforcement of an illegal contract. From the passage of the judgment of the learned Judicial Commissioner that we have quoted above, it is apparent that the learned Judicial Commissioner was concerned with the injustice that would be caused to the respondents if the appellants’ 32 argument on illegality is acceded to. The injustice in the opinion of the learned Judicial Commissioner is that the appellants had allowed the respondents to expend a substantial sum of money to build the factory on the said land then took about six years to complain to the court about the illegality. In our view whatever the motive of the appellants in complaining only six years after the execution of the said agreement is irrelevant. What is illegal remains illegal whether the complaint is taken early upon discovery of the illegality or very much later. [17] It is to be observed that the respondents are not entirely blameless in this case. Knowing that the said land use was agriculture and would require approval to convert it for industrial or commercial use, the respondents, nevertheless, went ahead to build the factory on the said land in contravention of the condition of land use and therefore were in breach of section 115 of the NLC. To compound the matter, there is no evidence to show that the respondents had obtained approval for the construction of the factory from the relevant local planning authority. The requirement for the conversion of land use for the purpose of the said agreement between the appellants and the respondents had been clearly 33 spelt out in the said agreement. Therefore, the respondents cannot deny such knowledge. The respondents had taken a big risk in having the building of the factory not approved by the relevant authorities as well as being in breach of the condition of land use for not obtaining prior approval for conversion of land use of the said land to industry or commercial use. [18] The case of Su Wee Lip @ Phillip Su (supra) relied by the learned Judicial Commissioner to support his decision is distinguishable on the facts. In the case there was no issue of illegality. That case involved land deals by the defendant and the plaintiff and the revocation of the power of attorney given by the owners of the land to the defendant to enable the defendant to deal with the land. In that case the defendant failed to deliver the land titles to the plaintiff after having received part of the purchase price from the plaintiff. The defendant then tried to challenge the revocation of the power of attorney given to him as bad even though he had assured and given representation to the plaintiff that he would not challenge the revocation. On the facts of the case the Court decided that the defendant should not be permitted to take advantage of his own wrong and thereby escape his obligation 34 under a deed that had been entered into between the plaintiff and the Plaintiff’s partner and the defendant for the sale of the lands. [19] For the above reasons, we allow the appeal and set aside the decision of the High Court and enter judgment for the appellants as per prayer 15(a) p 21 of the Appeal Records (Vol. 1), and for vacant possession to be delivered 90 days from the date of this judgment (7.4.2014). We also order each party to bear their own costs and the deposit refunded. [35] By reading paragraphs 16-19 of the the Court of Appeal’s grounds of judgment, this Court is in total agreement with the Defendants that the issues revolving the Lease Agreement had been decided by the Courts in Suit 991 on its very merits. The Court of Appeal has held that when an agreement made by parties is in contravention of any statutory provisions, it is the duty of the court to give effect to the law, not the parties. (“… the Court is duty bound to take notice of the illegality whether or not it is pleaded if the facts showing the illegality are before the Court. 35 The duty of the Court is to give effect to the law; not to be a party to the enforcement of an illegal contract.”) [36] In light of the of the pronouncement of the Court of Appeal in respect of the Lease Agreement, it is this Court’s judgment that the subject matter has been fully litigated and decided in Suit 991, thus the matter is res judicata. In the circumtances, clearly it would be an abuse of process of the court to allow the Plaintiffs to bring this originating summons in respect of the same issue previously litigated, adjudicated and disposed of on its merits. [37] For the reasons stated above, this Court hereby dismisses the Plaintiffs’ Enclosure 1 with cost of RM8,000.00 to the Defendants. 36 ………………………………………….. (DATUK AZIMAH BINTI OMAR) Judge High Court Shah Alam Selangor Darul Ehsan Dated 12th February 2018 For the Plaintiffs - Messrs Joseph Iruthayam & Co. Mr Joseph Iruthayam For the Defendants -