JUDGMENT

Abdul Malik Ishak J:

Introduction

[1] The plaintiff's injunction application in encl. 2 was dismissed with costs by me on 9 February 2004 and the plaintiff has since filed an appeal to the Court of Appeal on 10 February 2004. I have since written my judgment in regard to encl. 2 and I will refer to this judgment as the "first judgment". By way of encl. 14, the plaintiff applies, which is in the nature of an Erinford application, for a limited injunction until the hearing and final disposal of the appeal to the Court of Appeal and that application seeks to restrain the defendant from acting on, placing reliance or enforcing the security documents as alluded to in the first judgment as against the plaintiff which were executed in tandem with the Al-Istisnaa' facility agreements. This is an application for a limited injunction and it is in the nature of what is now commonly known as an Erinford injunction pending the appeal to the Court of Appeal.

The Law

[2] It goes without saying that I have the jurisdiction to grant a limited injunction pending appeal to the Court of Appeal or an injunction in the nature of an Erinford order. The jurisdiction that is vested in me arises from the power of the High Court to entertain an application in order to ensure that the appeal to the Court of Appeal is not rendered nugatory. That jurisdiction can be seen in s. 43 of the Courts of Judicature Act 1964 (Act 91) which states as follows:

43. Applications.

Wherever application may be made either to the High Court or to the Court of Appeal, it shall be made in the first instance to the High Court.

[3] This would be followed, still on the point of jurisdiction, by the case of Erinford Properties Ltd v. Cheshire County Council [1974] 2 All ER 448. I need go no further than to reproduce the headnote of that case and I shall do so now (see p. 448 of the report):

Where a judge dismisses an interlocutory motion for an injunction he has jurisdiction to grant the unsuccessful applicant an injunction pending an appeal against the dismissal; it is not necessary for the applicant to apply to the Court of Appeal (see p. 453 a b and d, post).

There is no inconsistency in granting such an injunction after dismissing the motion, for the purpose of the order is to prevent the Court of Appeal's decision from being rendered nugatory should that Court reverse the judge's decision (see p. 454 a b d e and f, post).

[4] This means that notwithstanding that I had refused the plaintiff's injunction application in encl. 2, I could still grant the plaintiff's application for an Erinford injunction as sought for in encl. 14. Another case worth citing would be the case of Permodalan MBf Sdn Bhd v. Tan Sri Datuk Seri Hamzah Abu Samah & Ors, [1988] 1 MLJ 178 , a decision of Syed Agil Barakbah SCJ (as he then was) and in the course of delivering the judgment of the then Supreme Court, his Lordship said:

Turning to the main issue, the learned judge, in granting the order suspending the ex parte injunction, applied the principle based on English authorities. He quoted a passage by Plowman J in London Permanent Benefit Building Society v. de Baer [1969] 1 Ch. 321 at 332 from the judgment of Cotton LJ in Polini v. Gray [1879] 12 Ch. D 438. The principle, inter alia , says that where there is a reasonable ground of appeal and if not making the order to stay execution of the decree would render the appeal nugatory, ie, it would deprive the appellant, if successful, of the result of the appeal, then it becomes the duty of the Court to interfere and suspend the right of the successful party. That, in the view of Cotton LJ, applied equally to the case where action has been dismissed and to the case where a decree has been made establishing the plaintiff's title. He also cited Erinford Properties Ltd. v. Cheshire County Council [1974] 2 All ER 448 where Megarry J applied the dictum in Polini v. Gray [1879] 12 Ch. D 438 and held that a judge who dismissed an interlocutory motion for injun