Raus Sharif JCA:

Introduction

[1] On 18 July 2008, the Kuala Lumpur High Court delivered a common judgment for 12 cases concerning Islamic financing which sent shock waves to the Islamic banking industry. The learned judge declared that the Bai Bithaman Ajil ("BBA") contract, a financial instrument in Islamic financing, which had been in existence and practised in this country for the past 25 years was contrary to the Religion of Islam.

[2] The plaintiff in the respective 12 cases was Bank Islam Malaysia Berhad ("BIMB"). BIMB is an Islamic bank licensed under the Islamic Banking Act 1983 and thus authorised to carry on Islamic banking business. The defendants were BIMB's customers.

[3] What had happened was this. Prior to the delivering of the common judgment, the learned judge had instructed counsel appearing in the 12 cases which were pending before him, to file their respective written submissions.

[4] The written submissions were duly filed but counsel were not called upon to appear before the learned judge to make oral submissions or provide clarification of their written submissions. From the written submissions the common judgment for the 12 cases was delivered by t