JUDGMENTBY: CHANG MIN TAT FJ

(delivering the judgment of the Court): In this action, the appellants sued the Government of Sabah for the loss of income from a piece of land of area 3280 acres which they quantified at $ 44 millions odd or alternatively for$ 13.2 million for the value of the land as a coconut plantation and the value of the timber thereon. With respect to the draftsman of the statement of claim, it must be said that the arithmetics of either of these two alternative heads of claim are not easy to follow from the figures given.

The language used in the statement of claim is also, with respect, so verbose and mixed that it becomes necessary to sort out the wheat from the chaff. This much, however, is clear from the statement of claim.

The donors of a power of attorney, then trading as partners in a firm known as the Chung Kwong Estates were the applicants in Lahad Datu Land Application No. 238/60 (L/A. 238/60) for a tract of virgin jungle land of some 3280 acres in extent. The development of this tract of land meant, first, the extraction of the timber thereon and then, turning it into agricultural land, more particularly into a coconut and rubber plantation. The application was made at that time to the then Government, which was the Government of the Colony of North Borneo.

The statement of claim next averred that "some 820 acres of L/A. 238/60 had been approved in the first instance" subject to the conditions imposed. If this averment implies that the application for the entire 3280 acres had been approved and that a grant of 820 acres was to be issued as the first part of the approved application, the language used falls far short. On September 5, 1962, the Government of the Colony of North Borneo granted a lease No. 17397 not for 820 acres but for 851 acres to the applicants for a term of 99 years from April 3, 1962 at an initial annual rent of $ 851, the rent to be increased to $ 3,404 from January 1, 1968 and to $ 4,106 from January 1, 1972. The lease is subject to a development plan, which is for the development of 10%-25% of the area in the first year, then the next 40% for the following 3 years and the balance in the next period of 3 years. Within 7 years the area of 851 acres was to be fully developed as a coconut and rubber plantation in accordance with a plan to be submitted by the lessees to the Director of Lands and Surveys. Nothing in the lease indicates that it was part of the whole area applied for, or if in fact it was, that the remaining area had been approved for alienation.

There the matter stood. On September 16, 1963 (Malaysia Day) the Government of the Colony of North Borneo was succeeded by the Government of Sabah as a component unit of the Federation of Malaysia. At no time before its demise had the outgoing Government ever issued any grant for the remaining area of L/A. 238/60 and it is also to be observed that no averment was made that this remaining area had been approved for lease to the applicants.

The next significant development is the "transfer" of the lease by the lessees to the Southern Estates Ltd., presumably with the approval of the Government. With this assignment of the lease, the original lessees would have dropped out of the picture, save as to their liability for any breaches of the terms and obligations of the lease on their part to be performed but they have been kept in the picture by the device of a power of attorney executed by them in favour of the donee, Tio Chee Hing who is at all relevant times, the Managing Director of Southern Estates Ltd. on the contention that they have a claim against the Government and their attorney is only prosecuting this claim.

Apparently this claim is founded on an expectation of the balance of the 2430 acres in L/A. 238/60. In order to establish it, an effort has been made to extend the development term in Lease No. 17397 to the entire area. In our view, it is entirely without foundation. The actual lease issued is in respect of a

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