A single notice of appeal cannot bind other defendants in separate suits; each must file independently. A test case must involve an agreement to be bound.

Abdul Rahman Sebli FCJ:

[1] We had allowed the appellant's appeal by answering Leave Question 1 in the negative and declining to answer Leave Questions 2 and 3. The background to the appeals has its genesis in the High Court when the appellant, who sued in his capacity as the registered Public Officer of Eng Choon Association Muar (Eng Choon Huay Kuan, Muar), Johor filed 50 suits against 50 different defendants (one of whom was the respondent) for similar reliefs in relation to 50 different premises.

[2] The 50 suits were filed and registered separately and were given different registration numbers. The reliefs that the appellant sought against the defendants were the following:

(a) An Order that the defendant and/or all persons that reside thereunder are required to vacate and deliver vacant possession of the relevant premises (in the case of the respondent, having specific address of 22-1, Jalan Hashim, 84000 Muar, Johor) for non-payment of quit rent;

(b) General and/or special damages to be assessed;

(c) Interest;

(d) Costs; and

(e) Such further and/or other reliefs as the Court deems fit and proper.

[3] In response, each of the 50 defendants filed a counterclaim against the appellant seeking, amongst others, various declaratory and injunctive reliefs and orders in respect of the said premises and land.

[4] The appellant had, on 13 December 2013 (prior to the filing of the 50 suits) issued to the respondent a Notice to Quit stating, amongst others, as follows:

(a) "(w)e are now instructed by our clients to give you notice, which we hereby do, that you do quit and deliver vacant possession of the demised premises on 31 December 2014 or at the end of the period of tenancy expiring next"; and

(b) "TAKE NOTICE that if you fail, refuse and/ or neglect to quit and deliver vacant possession of the demised premises by 31 December 2014 or at the end of the period of tenancy expiring next, then we have firm instructions to commence with the appropriate eviction proceedings against you in which event you shall be liable for all the costs incurred. Our clients also reserve their rights to claim against you for all the losses and damages suffered by them together with interest thereon."

[5] Despite being given more than one year's notice to quit and to deliver vacant possession of the demised premises, the respondent failed to do so on or before 31 December 2014.

[6] What is pertinent to note is that although the 50 suits were similar in nature in that they were based on similar facts and issues, they nevertheless remained, at all material times, separate and distinct as they involved different defendants and different premises.

[7] Of the 50 suits, the appellant obtained judgment in default against 13 defendants. The remaining 37 suits were contested. As the facts and issues of law in the remaining 37 suits were similar, parties had, by way of a consensus, agreed for the action in the present suit (Muar High Court Civil Suit No: 22NCVC-66-10-2015: Lim Choon Seng v. Lim Poh Kwee) to be tried as a "test case" whereby the decision in the case would bind the other 36 defendants in the other 36 suits, whichever way the decision was to go. It was an agreement to swim and sink together so to speak.

[8] Thus, if the defendant (respondent) in the test case were to be found liable, the other 36 defendants in the other 36 suits would likewise be held liable to the appellant, and vice versa. Such agreement will be upheld by the Court, barring any breach of any rule of law written or otherwise. There was no application for consolidation pursuant to O 4 r 1 of the Rules of 2012. Therefore the trial of the 37 suits did not proceed as one action.

[9] Due to the agreement between the parties, the other 36 defendants in the other 36 suits did not testify at the trial. According to learned counsel for the respondent, it was in reliance on the appellant's "representation" that the other 36 defendants in the other 36 suits waived their right to be heard at the tr