Mohtar Abdullah FCJ:

[1] On 21 May 1996 Dato' Gopal Sri Ram JCA delivered the judgment of the Court of Appeal (reported in [1997] 2 CLJ 607) in respect of the disputes concerning The Raintree Club of Kuala Lumpur ("the Club"), affirming the decision of Dato' Dr Zakaria M Yatim J (as he then was) in the High Court, with slight variation as to costs.

[2] Allied Capital Sdn Bhd ("Allied") (the applicant in 08-32-96(W) and Tengku Abdullah ibni Sultan Abu Bakar and 8 others ("the promoters") (the applicants in 08-34-96(W)) now apply to the Federal Court for leave to appeal against the whole of the said decision of the Court of Appeal pursuant to s 96 of the Courts of Judicature Act 1964.

[3] As clearly restated by Tan Sri Edgar Joseph Jr FCJ in Datuk Syed Kechik Syed Mohamed v. The Board of Trustees of the Sabah Foundation & Ors, [1999] 1 MLJ 257, at p 330; [1999] 1 AMR 833:

It is not the practice of this Court, nor as we understand it, the practice of the House of Lords, when sitting in its judicial capacity hearing application for leave to appeal, to give explicit reasons for granting or refusing leave, save in circumstances where their Lordships considered that they had no jurisdiction to entertain the application.

[4] We would similarly adopt the same time-honoured practice by briefly noting that we have heard the submissions by Dato' RR Sethu and Mr Cecil Abraham on behalf of Allied and the promoters respectively and also the reply by YM Raja Aziz Addruse on behalf of the respondents. We are satisfied that the High Court and the Court of Appeal had made concurrent findings on primary issues such as whether the promoters of the Club stood in a fiduciary capacity to the Club; whether, as fiduciaries, they had acted in breach of their fiduciary duties; whether there was any injury resulting from such breach of fiduciary duties, and if so, whether the proper relief was asked for and given. There is also the issue whether the respondents, as members of the Club, had the standing to bring the action on behalf of the other members of the Club (other than the promoters) in a representative capacity. We are satisfied that the judgment of the Court of Appeal has not raised any question of general principle which the Federal Court has not previously decided or any question of importance upon which further argument and a decision of the Federal Court would be to public advantage. The concurrent decisions of the High Court and the Court of Appeal on the said issues are in fact mere applications of well-established principles of law to the particular facts of the case. In such a situation, it would be highly unlikely that an appellate Court would disturb such concurrent decisions. We are, therefore, equally satisfied that, even if leave is given, the applicants would prima facie not succeed in the appeal.

[5] Our decision, as above, would ordinarily have disposed of these applications under s 96 of the Courts of Judicature Act 1964. However, the matter does not end there. Allied has in fact raised as its first primary point the issue of bias on the part of the learned judge who presided in the Court of Appeal and delivered its judgment as abovesaid. The objection is founded on two grounds, firstly, the learned judge's membership of the Club and secondly, the allegation that he had acted professionally for Allied on the very matters in issue in this suit. In view of the serious implications in law arising out of this objection, we are now compelled to deal with this issue at length.

[6] One Yusof bin Abu Bakar, a director of Allied, in his affidavit affirmed on 18 November 1996 avered as follows:

9. The Appellant/Applicant does not question the integrity and ability of Yang Arif Dato' Justice Gopal Sri Ram as a judge of the Court of Appeal. However, I believe that the rules of natural justice are so fundamental that the decision intended to be appealed against ought to be set aside irrespective of the merits and I also believe that the appe