(delivered by Lee Hun Hoe C.J. (Borneo)): The appellant, according to his statement of claim, was travelling as an attendant in a truck bearing registration No. KC 6007 which was in collision with another truck belonging to the United Malaysia Co. Ltd. driven by one Lee Nyong Kong, No. KA 343. In Civil Suit No. K.124 of 1976, judgment was entered in his favour against both the United Malaysia Co. Ltd., and Lee Nyong Kong.

For reasons best known to appellant, probably inability to pay on the part of the two aforementioned, he then filed this suit against the respondent company, alleging that by a policy of insurance issued by respondents to a Messrs. Wee & Wee Realty Sdn. Bhd., the respondents had agreed to indemnify any person driving on the insured's order or with their permission against any liability incurred by that person in respect of any loss or expense caused by or arising out of the use on a road of truck KA 343, and that Lee Nyong Kong was driving on the orders and/or with the permission of Messrs. Wee & Wee Realty Sdn. Bhd. at the time of the collision.

The respondents in their defence contended, inter alia, that since no judgment was entered against the party insured, i.e. Messrs. Wee & Wee they were not liable to pay appellant under Clause 9(1) of the Motor Vehicles (Third Party Risks) Ordinance (Cap. 130).

Respondents then filed a summons in chambers praying that the statement of claim be struck out under Order 18 rule 19 of the Rules of the High Court 1980 on the grounds that it disclosed no reasonable cause of action, was frivolous, vexatious and an abuse of the process of the court.

The appellant relied on section 9(1) of the Motor Vehicles (Third Party Risks) Ordinance (Cap. 130) for recovery of the judgment he had obtained in C.S. No. K.124 of 1976 from the respondents.

Section 9(1) reads:

"If, after a certificate of insurance has been issued under subsection (4) of section 4 to the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of subsection (1) of section 4 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the in surer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any written law relating to interest on judgments."

The learned Judicial Commissioner noted that the defendants against whom the judgment in C.S. K.124/76 i.e. Lee Nyong Kong & United Malaysia Co. Ltd. was obtained were not the insured, Messrs. Wee & Wee Realty Sdn. Bhd. to whom the respondents in this appeal had issued the policy in respect of truck KA 343. He therefore held that the judgment in Civil Suit K.124/76 is not the judgment within the meaning of section 9(1), and accordingly allowed the application to strike out the statement of claim.

The question to be answered is therefore whether the judgment obtained in C.S. K.124/76 is a judgment obtained "against any person insured by the policy" i.e. the policy issued to respondents in respect of truck KA 343.

Mr. Chew for the respondents submits that the only material issue is the status of the policy issued to Messrs. Wee & Wee.

According to the affidavit of Hibbard, manager of the respondent company, respondents had indeed issued a policy of insurance to Messrs. Wee & Wee Realty Sdn. Bhd. in respect of the truck for the period July 24, 1973 to July 23, 1974, but that there had been no assignment of the policy from Wee & Wee to United Malaysia Co. Ltd. or to any one else (if indeed assignment, rather than novation of the contract of insurance is what he really meant). It