Gopal Sri Ram JCA:

[1] This is the Judgment of the Court.

[2] There are two appeals before us. The first is Civil Appeal No. M-02-153-2005; the second is Civil Appeal No. M-02-154-2005. Both appeals arise from the same civil suit that was tried by the High Court in Melaka. The judgment to the High Court is reported in [2005] 5 CLJ 289. The first appeal is by the plaintiff in the court below. The second appeal is by Madam Chun, the second third party in the court below. We heard arguments in these appeals on 28 and 29 April 2008 and adjourned them for delivery of judgment to today.

[3] The brief facts relevant to these appeals are as follows. On 10 June 1993, a company called Airport Auto Centre Sdn Bhd ("Airport Auto"), the first third party in the court below, as beneficial owner, entered into an agreement with the defendant in the court below (respondent before us) to sell an undivided share in a piece of land held under Lot 208 ("the subject property"). The purchase price was RM200,000. Later, on 9 December 1994, Madam Chun caused the subject property to be transferred to the plaintiff. Later still, the plaintiff brought an action against the defendant to recover vacant possession of the subject property and consequential relief. The defendant delivered a counterclaim seeking specific performance against the plaintiff, an order against Madam Chun that she cause the plaintiff to specially transfer to the defendant the undivided share in the subject property and damages for breach of contract against Airport Auto. The learned judge dismissed the plaintiff's claim and entered judgment on the counterclaim both against the plaintiff and against Madam Chun.

[4] Before us, the plaintiff relied on three grounds in support of its appeal. First, that the counterclaim was barred by res judicata. Second, that the remedy of specific performance was not available to the defendant. Third, that the learned judge had erred in not undertaking a judicial appreciation of the evidence led before him in consequence of which he misdirected himself. We will deal with each of these points in turn.

[5] To appreciate the argument raised on the plea of res judicata, it is necessary to narrate some of the factual background on which the plea is based. After the commencement of proceedings, the defendant took out a summons for an interlocutory mandatory injunction. Its application was based on an agreement dated 20 October 1991 between itself and a company called Jaytra Sdn Bhd. Under that agreement the defendant was given the right to extract sand from the subject property. At the date of that agreement Jaytra had been wound up. However, Madam Chun's husband, Wu Soo Hwa purported to act as the general manager of Jaytra. He appointed himself and Madam Chun as its directors. Tribute on the sand mined from the subject property was paid by the defendant to Madam Chun. All this was, of course, wholly illegal. The judge who heard the defendant's application for an injunction dismissed it. An appeal to this court failed. The judgment of this court is reported in [2001] 1 CLJ 181. It is clear from a reading of the judgments of Siti Norma Yaakob and Abu Mansor JJCA that the issue that was dealt with upon that occasion was the validity of the mining agreement which the defendant had with Jaytra. To illustrate the point we need do no more than quote the following sentence from the judgment of Siti Norma Yaakob JCA:

I have already pointed out that no such right existed as it [the defendant] cannot derive any advantage or right under the first agreement [with Jaytra] which it has admitted is unenforceable.

[6] It is also pertinent to note that in an application for an interlocutory injunction; whether mandatory or prohibitory; the primary question for the court is whether the justice of the case warrants the grant of relief. See, Keet Gerald Francis Noel John v. Mohd Noor bin Abdullah & Ors [1995] 1 CLJ 293. It is upon that issue that this court made its p