Hasan Lah J:

Introduction

In this action the plaintiff is claiming for damages to be assessed, special damages in the sum of RM344,800, interest and costs. The claim is grounded on negligence of and/or breach of contract by the defendants while acting as the plaintiff's advocates and solicitors.

Facts

The 1st defendant is an advocate of the High Court in Sabah and Sarawak and at all material times was practising under the name and style of the legal firm of Messrs Linton & Co. Advocates, the 2nd defendant, at Lot 584, 1st Floor, Law Gek Soon Road, Bintulu. The plaintiff is a claimant in respect of all that parcel of land situate at Sungai Keresap, Batang Kemena, Bintulu, containing an area of 6.201 hectares (15.31 acres) more or less described as Lot 272, Block 38 Kemena Land District (hereinafter referred to as the said Lot 272"). On or about 24 July 1991 the defendants were retained by the plaintiff in respect of a dispute relating to the said Lot 272. The inquiry was held by the assistant settlement officer pursuant to the Sarawak Land Code where it was decided on 2 September 1991 that the said Lot 272 was to be divided between the plaintiff and the other 15 claimants comprising his brothers, sisters and cousins. The plaintiff's entitlement was 16/441 share.

The plaintiff then instructed the defendants to lodge an appeal against the said decision. The appeal was than lodged by the defendants on behalf of the plaintiff at the Sessions Court in Bintulu on 3 October 1991 (hereinafter referred to as "the land appeal"). The settlement order containing the decision of the said assistant settlement officer was gazetted on 21 November 1991 in the Sarawak Government Gazette.

At the hearing of the appeal on 22 May 1993 before the Sessions Court counsel for the respondents in the land appeal case raised a preliminary objection that the plaintiff had not complied with the conditions in s. 102 of the Sarawak Land Code and hence, the appeal was incompetent. The Sessions Court delivered its ruling on 26 June 1993 whereby the plaintiff's appeal was dismissed with costs. The Sessions Court held inter alia that the Sessions Court had no jurisdiction under the Land Code to hear the land appeal "because it is not, in facts an appeal against or based upon the decision of the settlement officer as envisaged by s. 102 for when petition of appeal was filed the decision had not been published in the Gazette".

On 30 June 1993 the plaintiff paid a retainer fee of RM1,000 to the defendants for appeal to the High Court. The Notice of Appeal was filed on 6 July 1993. On 19 February 1994 the plaintiff paid another sum of RM2,000 to the defendants being payment "in respect of partial payment of appeal to the High Court". The plaintiff did not pursue the appeal to the High Court. Under cross examination by the learned counsel for the defendants the plaintiff stated that he did not pursue the appeal to the High Court because he was not aware of the procedure. On the other hand the 1st defendant stated in his evidence that after the filing of appeal to the High Court the plaintiff gave no further instructions to the defendants nor sign a Warrant to Act as the plaintiff intended to seek a second opinion from the other lawyers on the matter.

The Defence

Essentially the defendants' defence are as follows:

(a) The defendants deny that the land appeal case was dismissed and struck off due to the alleged negligence/breach of contract of the defendants (para. 2 of amended defence);

(b) The 1st defendant had acted with due care and diligence, did in fact file the land appeal after the plaintiff obtained and gave the decision of the assistant settlement officer and resisted the preliminary objection in the Sessions Court (para. 3 of amended defence);

(c) The plaintiff refused to exhaust and failed to give the defendants instructions to proceed on the appeal to the High Court against the decision of the Sessions Court and had not exhausted all avenues