JUDGMENT

Gopal Sri Ram JJCA:

[1] This appeal raises two short issues. Both have been visited by our courts on previous occasions. It has to do with the lawfulness of the consideration provided for an agreement and the right of a party to recover moneys paid under such a contract. The facts of this case are not in dispute.

[2] The appellant and respondents are parties to a prior litigation. During the course of that litigation, the appellant lodged a report against, inter alia, the first respondent, vide Tun HS Lee Report No 1524/96. It alleged that the first respondent had cheated the appellant over a power plant project abroad. This is a non-compoundable offence.

[3] On 15 October 1996, the parties to the earlier litigation entered into a consent order. In essence, that consent order required the instant respondents to pay the appellant RM5.1m in full and final settlement of the latter's claim. An integral part of the consideration for this payment appears in a later paragraph of the consent order. It provides that the appellant will apply to the relevant authorities to withdraw all complaints and reports against the respondents. A further consideration for the agreement housed in the consent order was that the injunction that the respondents had earlier obtained against the appellant would be dissolved. Later, the appellant took steps to enforce the consent order. He instituted winding up proceedings against the corporate respondents and bankruptcy proceedings against the natural respondents. A majority of these proceedings were commenced in the Shah Alam High Court. The respondents wanted to truncate these enforcement proceedings. They wanted to return to the status quo ante, immediately prior to the consent order. For this purpose, they took out an originating summons in the Shah Alam High Court. They claimed the following relief in their summons:

(1) for an order that the consent order dated 15 October 1996 recorded in Kuala Lumpur High Court Civil Suit No:D1-22-16-96 be set aside.

(2) that upon and in the event this honourable Court grants prayer (1) above the following consequential orders be granted:

(a) that the Kuala Lumpur High Court Civil Suit No:D1-22-16-96 be transferred to the High Court in Shah Alam and the said action be set down for trial.

(b) that all execution and enforcement proceedings based on the said consent order including the winding up petitions namely Kuala Lumpur High Court Companies Winding Up No D2-28-305-97 and Shah Alam High Court Companies Winding Up No 28-69-97 and Bankruptcy Proceedings namely Shah Alam High Court Bankruptcy No 29-65-97 and Bankruptcy No 29-61-97 instituted pursuant to the consent order are improper and ought to be set aside/struck off.

(c) that the sum of RM5.1m paid pursuant to the consent order to the defendant together with interest thereon from 20 October 1996 to date be forthwith deposited by the defendant with this honourable Court in an interest bearing account pending the hearing and disposal of Civil Suit No:D1-22-16-96 referred to in (a) above.

(3) costs; and

(4) such further and other relief as this honourable Court may deem fit and proper.

[4] The judge who heard the summons granted the relief sought. The appellant appealed to this Court. We heard arguments of counsel on 30 August 2000 and dismissed the appeal. We now give our reasons for upholding the learned judge's order.

[5] There is a preliminary issue that I would like to deal with before embarking upon the questions that lie at the heart of this appeal. It has to do with the correctness of the learned judge's order in setting aside the consent order. No challenge to his jurisdiction to do so has been raised by counsel for the appellant. This is not surprising. Ordinarily, the respondents would have been entitled to move the High Court for a declaration that the consent order was void and unenforceable by reason of its illegality. It is well within the jurisdiction of the High Court to grant such a declaration. Equity