Zaki Tun Azmi CJ:

Introduction

[1] The appellants raised two complaints before us. The first complaint is that the Court of Appeal had considered a matter which were neither pleaded nor argued at any stage of the proceedings be it at the High Court or the Court of Appeal. According to the appellants, the Court of Appeal in considering the judgment from the High Court, delved itself into the issue of frustration, when that question was never raised in the pleadings, in the argument at the High Court, the Memorandum of Appeal to the Court of Appeal, or in the course of argument at the Court of Appeal. Secondly, following that mistake, the Court of Appeal continued to make what the appellants contend as an obvious and erroneous statement of law as to what is frustration. Hence leave was granted on the following two questions for us to decide:

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Question 1

Whether it is open to an appellate Court to find or hold that a contract has been frustrated notwithstanding that such had neither been pleaded nor canvassed in the trial Court and neither pleaded as a ground of appeal in the appellate Court?

Question 2

Whether the doctrine of frustration in the law of contracts recognizes the failu