Gopal Sri Ram JCA:

There are two appeals before us. They tell a very sad story about the delay in the courts. All litigation involves some delay or other. But in these cases, the delay has been long and extremely unsatisfactory.

As I said, there are two appeals and they arise out of two suits filed as long ago as 1979 in the High Court at Kota Kinabalu. In each action, the Yayasan Sabah or Sabah Foundation is a plaintiff but its co-plaintiff is different in each case. The first is Civil Suit No. 351/79, the second is Civil Suit No. 352/79. After the issue of the writ, in each case, pleadings were exchanged and some preliminary steps were taken in the action. For convenience, it is necessary to deal with each suit separately, although there is some overlap between them.

In Civil Suit No. 351/79, the writ was issued on 22 February 1979. The defence was delivered on 21 August 1979 and was amended on 28 November 1979. The summons for directions was taken out on 18 September 1981 and made returnable on 26 October 1981. When the summons for directions came up for hearing, it was adjourned at the request of the defendants' counsel (not Mr. Cherryman who has appeared before us in this appeal) who said he needed time to take instructions. Then, on 18 January 1983, solicitors for the defendants wrote to their opposite number asking them to have the summons for directions restored for hearing at an early date. Two days later, the plaintiffs' solicitors wrote to the assistant registrar and in their letter of 20 January 1983 made the request. That letter was copied to the defendants' solicitors. Nothing happened. There then followed a number of letters, fifteen in all, between 21 July 1983 to 26 April 1986 from the plaintiffs' solicitors to the court. Each letter asked for the summons to be fixed for hearing. None of these letters received any response from the court. It may be added that none of these letters were copied to the defendants' solicitors. There then followed a period of complete inaction on the part of the plaintiffs and their solicitors for nine years and nine months.

The next set of correspondence in the first action is between 8 January 1996 to 15 November 1996. These letters were also addressed to the court but received no reply. However, in October 1995 there appears to be some correspondence between the court and the plaintiffs' solicitors which indicates that the suit had been transferred to the Sessions Court. Upon the plaintiffs' solicitors indicating the suit was not suitable to be tried by the Sessions Court, it was sent back to the High Court.

On 6 January 1997, the plaintiffs applied for and obtained ex parte Mareva injunctions in both suits. The following day, ie, 7 January 1997, the High Court at Kota Kinabalu issued a notice of hearing to show cause why both suits should not be heard together. That notice was made returnable on 9 January 1997. The hearing on 9 January 1997 was adjourned to 15 January 1997 on which date the learned judge made an order that Suits 351/79 and 352/79 be heard together. Some two weeks later, on 30 January 1997 the solicitors for the defendants wrote to the plaintiffs' solicitors giving them notice that they would be applying to strike out both actions. Striking out applications in both suits were taken out and served on 21 February 1997. So much for the brief chronology in Suit 351/ 79.

In Suit 352/79, the writ was issued on 22 February 1979. The defence was delivered on 21 August 1979. The pleadings were then amended and a summons for directions was taken out. An order for directions was made on 16 March 1981. The suit was then set down for trial on 11 October 1983. I may add, for completeness, that throughout this period, there was no application by the defendants to have the suit to be struck out for disobedience of an order or for lateness in having the action set down for trial. Like the first action, there was also correspondence between the plaintiffs' solicitor