Mohd Ghazali Yusoff JCA:

Background

On 12 November 1971, the appellant (the plaintiff in the court below) as vendor entered into a sale and purchase agreement (hereafter referred to as "the agreement") over two pieces of land with one Teo Bak Sang as purchaser (hereafter referred to as "the purchaser"). The first piece of land measuring 36 acres was known as Geran No. 13267, Lot 1557, Mukim Assam Kumbang, Daerah Larut dan Matang, Perak. The second piece of land measuring 16 acres 0 roods and 15 poles was known as Sijil Hakmilik 1113, Lot 129 (now known as Geran No. 9318) (hereafter referred to as "Lot 129"). The subject of the dispute revolves around Lot 129 only. The terms of the agreement included the following:

(a) that the appellant shall sell the two pieces of land to the purchaser as separate and complete building lots at a price of RM1,700 per lot in four phases of which 114 building lots are in Lot 129 (cl. 4);

(b) that 8 completed building lots (of which 2 building lots are in Lot 129) and the building lots which are outside the boundaries of the two pieces of land shall be excluded from the sale and remain the property of the appellant (cl. 6);

(c) that the remaining areas of the two pieces of land, shown unshaded on the plan annexed to the agreement and designated as road reserve areas and areas reserved for public purpose, may be surrendered to the State Government by the appellant if required to do so in the course of subdivision (cl. 7);

(d) that the appellant shall be responsible for obtaining the conversion and subdivision of the two pieces of land (cl. 9); cl. 9 reads:

The purchase price for the building lots is on the basis of the issue of separate titles (qualified or final) for each lot, subject to the category "building" as defined in the National Land Code. Accordingly the vendor shall be solely responsible for obtaining the conversion and subdivision of the large and small lots at his own expense, and shall use all reasonable endeavours to obtain separate titles to the individual building lots with the minimum of delay: provided that

(a) ...;

(b) ...;

(c) The Vendor shall at his own costs and expenses employ a surveyor for the purpose of carrying out the necessary preparatory work for the issue of separate titles and to pay the reasonable expenses and fees of such surveyor. ...;

(e) that no variation of the approved layout plan (hereafter referred to as "the original layout plan") shall be permitted except with the written approval of both parties (clause 23); clause 23 reads:

The vendor shall be entitled to apply to the State Government and Municipal authorities for permission to further subdivided the areas designated as areas reserved for public purposes on the approved lay out plan, and for permission to include thereon additional building lots, and in the event that the same is approved, the Vendor shall sell and the Developer shall purchase such additional building lots as part of Phase "D" at the aforesaid price of Dollars One thousand seven hundred ($1,700/-) per lot. Save as aforesaid, no variation of the approved layout plan shall be permitted except with the written approval of both parties hereto.

On 4 December 1972 the purchaser assigned all his rights and interests in the agreement to the respondent (the defendant in the court below).

In 1973, the appellant filed a suit at the Ipoh High Court, namely, Civil Suit No. 362-1973 (hereafter referred to as "the 1973 suit") against the respondent for a declaration that the agreement be terminated on the grounds that the respondent:

(a) failed to construct an "approach road" as provided for in the agreement; and

(b) failed to pay the appellant RM6,840 which is apportioned payment in excess of RM13,350 for the surveyor employed by the appellant.

The 1973 suit was dismissed by the High Court on 17 September 1985. On 26 March 1986, the appellant's appeal to the then Supreme Court was also dismissed.

On 7 March 1988, pursuant to an application