(i) Whether the High Court in the said suit can set aside the Consent Judgment entered in 2007 suit. [17] All learned counsels for the parties, be it for the 1st or 2nd defendants respectively or for the plaintiff, had cited the decision of the Federal Court in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393, to support their arguments on this issue. Based on 10 Badiaddin, supra, both learned counsels for the defendants argued that a Consent Judgment cannot be set aside unless in exceptional cases such as illegality, lack of jurisdiction or breach of rules of natural justice. They argued, mere collusion to conspire or “berniat jahat” is not a ground to set it aside. It was also not true that the rules of natural justice had been breached that the plaintiff had been deprived of the right to be heard, as the plaintiff had knowledge of the intended Consent Judgment from the beginning and yet did not do anything to stop it. They further argued, since the plaintiff was not a party to the Consent Judgment, he has no right to set it aside. Learned counsels for the dependents also cited inter alia, the following cases to support their arguments: Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697; Khaw Poh Chuan v Ng Gaik Peng & Ors [1996] 1 MLJ 761; Yee Seng Plantations Sdn Bhd v Kerajaan Negeri Terengganu & Ors [2000] 3 CLJ 666, Tiong Nam Trading & Transport (M) Sdn Bhd v Commercial Union Assurance (Malaysia) Sdn Bhd [2008] 2 MLRA 108 and Boustead Naval Shipyard Sdn Bhd v Dynaforce Corporation Sdn Bhd [2015] 2 MLRA 348. [18] On the part of the plaintiff it was argued that grave injustice was a valid ground to set aside the Consent Judgment. Learned counsel for the 11 plaintiff cited Peh Swee Chin FCJ’s judgment in Badiaddin, supra, which at page 418 – 419, inter alia stated the following: “The grounds referred to for setting aside a consent order of a judgment by consent are grounds which basically relate to consensus ad idem or the free consent of parties to a binding agreement or contract. It is elementary that if it is proved that there are grounds which vitiate such free consent, the agreement is not binding. Now a consent order or a judgment by consent is undoubtedly based on an agreement of both parties where consent to the agreement must or should have been free in the first place. If the agreement upon which a consent order or judgment by consent is based, is vitiated by any ground recognized in equity as vitiating such free consent, such as fraud, mistake, total failure of consideration, (see Huddersfield Banking Co. v. Henry Lister [1895] 2 Ch. and the cases cited therein), then such a perfected consent order or judgment by consent could be set aside in a fresh action filed for the purpose.” [19] Hence he argued there would be grave injustice if the Consent Judgment was allowed to stand as the plaintiff did not consent to it. [20] Other than Badiaddin, supra, he also cited inter alia, the following cases to strengthen his argument; S Pakianathan v RK Stallard [1979] 2 MLJ 251, Khaw Poh Chuan, supra; Yee Seng Plantation, supra; Lai Kee Peng v Tay Hup Lian [2016] 4 CLJ 1. 12 [21] It seems, other than Badiaddin, supra, all parties also relied on the same case of Khaw Poh Chuan, supra, and the case of Yee Seng Plantations, supra. The passage in Badiaddin, supra, which was quoted by learned counsel for the plaintiff as shown above, had also been quoted by learned counsel for the 2nd defendant in his written submission. Thus, it is obvious and undisputed that only parties to the Consent Judgment can be bound by it. [22] We had considered the arguments put forth by the parties including the authorities cited. It was our considered view that the law on the setting aside of a Consent Judgment was and is clear. As the Federal Court in Badiaddin, supra ruled, a Consent Judgment cannot be set aside unless special exception is shown that it can be proven that there involves illegality, lack of jurisdiction and fraud. In the instance, we found none has been proven. [23] The learned High Court Judge opined that the 1st and 2nd defendants had colluded to frustrate the plaintiff’s right over the land. But collusion alone is not fraud. The Federal Court in Loi Hieng Chiong v Kon Tek Shin [1983] 1 MLJ 31 had stated the following: 13 “As regards the law, it has been said that the courts have so far not ventured to lay down as a general proposition what amounts to fraud. It can only be determined from acts and circumstances of a particular case. It usually takes the form of a statement of what is false or a suppression of what is true. Where the relative position of the parties is such as raises the presumption of an unconscientious use of power arising out of the circumstances and conditions, the transaction cannot stand unless the person claiming benefit of it is able to repel the presumption by contrary evidence proving to have been in point of fact, fair, just and reasonable per Lord Selborne, L.C. in Earl of Aylesford v Morris(1); See also Fry v Lane(2). In Derry v Peek(3) it was held that to establish fraud it is necessary to prove the absence of a honest belief in the truth of that which has been stated; in the words of Lord Herschell “Fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belied in its truth; or (3) recklessly, careless whether it be true or false”. [24] The Court of Appeal in CIMB Bank Bhd v Veeran a/l Ayasamy [2015] 5 MLA 603 had stated as follows: “The elements of fraud and/or conspiracy must be proved by clear, cogent and convincing evidence. There must be something more than mere failure or an omission on the part of the third defendant. There can never be fraud and/or conspiracy cannot exit, where the intent to deceive does not exist”. 14 [25] The defendants entered into the Consent Judgment of their own free will. In fact before entering into it, the 1st defendant had obtained the advice of Messrs Yusof Khan & Fong, the very same lawyer who was appointed by the plaintiff himself to fight the 2007 suit. And the plaintiff was aware of this as he was informed by the 1st defendant. Yes, the 2nd defendant had offered a higher purchase price but the plaintiff had also done the same when he offered an increased purchase price to the deceased in order to buy the said property knowing fully well of the pending 2007 suit. The 1st defendant never concealed the fact that he was going to enter into Consent Judgment from the plaintiff. Hence we did not find any illegality or fraud involved. The issue of lack of jurisdiction obviously did not arise. There was also no vitiating factor which undermined the Consent Judgment. Being fully aware of the intended Consent Judgment and not doing anything to stop it, it was therefore misplaced for the plaintiff to now argue that there would be grave injustice to allow the Consent Judgment to stand. We found the plaintiff had failed to bring himself within the special exceptions as pronounced by Badiaddin, supra. [26] Further, we were also of the view that since the plaintiff was not privy or a party to the Consent Judgment, it follows that he had no right to set it aside. See: Tiong Nam Trading, supra and Boustead Naval Shipyard, 15 supra. The most he could do was to ask the Court to set aside only clauses which mentioned his name but not the whole Consent Judgment. See: Khaw Poh Chuan, supra. [27] However, we agreed with the 1st defendant that the mere fact the plaintiff’s name was mentioned did not give him the automatic right to set aside the Consent Judgment. This was because the plaintiff, as we mentioned earlier and reiterate it now, knew about the 2007 suit from the beginning and was the one who introduced and appointed Messrs. Yusof Khan and Fong to act for the 1st defendant and even paid the legal fees to the lawyers on behalf of the 1st defendant. Hence, as submitted by the 1st defendant, and we agreed, the 1st defendant was fighting the 2007 suit for the plaintiff and the plaintiff was in actual fact using the 1st defendant to fight the case from behind the scene. In Dewan Undangan Negeri Kelantan, supra, it was inter alia held by the Supreme Court: “(6) As to the contention that the declaratory order should not have been made because the Election Commission and the incumbents of the state seats, namely, Haji Samat and Haji Mahmud, were directly affected but were not before the court, the court found that the appellants were in reality fighting the suit on behalf of Haji Samat and Haji Mahmud. In the circumstances, there was no principle of law which disentitles the court from disposing of the case by making a declaration of title in the respondents’ favour.” 16 [28] Applying the same principle to the instant appeal, based on the facts of the case, even though the plaintiff was not a party to the Consent Judgment, we found it was not wrong to include his name in the Consent Judgment. [29] Based on the above, we found there was no good reason for the High Court in the said suit to set aside the Consent Judgment in the 2007 suit. We need also emphasise the fact that the Court of Appeal had set aside the summary judgment obtained by the 2nd defendant against the 1st defendant and ordered for the 2007 suit be fixed for full trial merely means that there were issues to be tried in the 2007 suit. It does not stop parties from settling the matter out of court by entering into the Consent Judgment. Hence the learned High Court Judge erred when His Lordship opined that the Consent Judgment was against the order of the Court of Appeal.