Wan Suleiman FJ:

This is an appeal by appellants/plaintiffs against the decision of Zahir J in dismissing their claim for a declaration that they are the lawful owners and holders of two Forest Timber Licences and other consequential reliefs.

The State Government of Kelantan granted two timber Licences No. K.U. 13/68 covering an area of 9,000 Kayu Kelantan (SPKKK). Consequently, two Forest Timber Licences No. K.U. 13/68 covering an area of 9,000 acres in Batu Melintang and No. K.S. 19/68 covering an area of 7,670 acres in Gua Musang were issued to the Pengurus of SPKKK. However, there are two Syarikats of the same name but with different addresses. The Kota Bharu SPKKK was registered on 10 July 1970 and commencing business on 1 June 1970 while Kuala Krai's SPKKK was registered on 6 August 1970 and commencing business on 1 July 1970. The issue before the learned Judge and before us is the answer to the question who is the actual owner of the two licences.

The facts were set out fully by the learned Judge. We can do no better than to refer to his judgment at p. 190 of the Appeal Record:

The 2nd plaintiff was formerly the State Forest Officer in Kelantan from 1 November 1960 to 1968 and he went on optional pension at the age of 50 years and 3 months. Whilst waiting for retirement, according to his evidence, he applied for a timber concession at Batu Melintang on 15 March 1968 and which according to him was approved on 1 April 1968. He applied under the name of Syarikat Kayu Kayan Kelantan and gave his official address then at No. 276, Jalan Raja Dewa (NAB 32). He then went to see the Menteri Besar who advised him as he was still in service to submit another application in the name of another Syarikat with Sino-Malay joint venture which he did and backdated the application to 15 March 1968. The application is NAB 34 signed by 1st plaintiff ...

At p. 189 of his judgment the learned Judge sets out the parties' positions this way:

The plaintiffs alleged that on or about 7 July 1968, the 1st plaintiff was the sole proprietor of SPKKK and was the owner and holder of the two forest licences aforesaid. It was alleged that the said Foo Chow Jian, deceased, was once a logging contractor of the plaintiffs.

It was further alleged that in early 1970 the plaintiffs worked on the area under Licence No: K.U. 13/68 by extracting logs therefrom and paying royalties to the State Government. It was alleged that in March, 1970, the deceased unlawfully refused to return the two licences to the plaintiffs and on or before 23 February 1971 it was alleged that the defendants and the deceased falsely represented to the State Forest Officer (SFO) that the two licences belonged to them and on 23 January 1971 the SFO unlawfully accepted the said deceased as owner and holder of the said licences. It was further alleged that on 8 November 1971 the SFO refused to collect royalty tendered by the plaintiffs for logs felled in the two areas and prevented the plaintiffs from working there.

It was further alleged that on 5 February 1972 the deceased died and the statement of claim alleged that the said partnership between the defendants and deceased was dissolved. It was further alleged that the defendants and the deceased never worked in the two areas.

The defendants deny that the licences were not lawfully issued to the deceased, who, as they claim, was before his death, a logger and sawmiller on his own right and pleaded that the deceased was in lawful possession of the licences and pleaded that the State Government lawfully refused to receive royalties from the plaintiffs as they are not the lawful owners. Whilst admitting the death of the deceased, the defendants deny that their partnership was dissolved. They also admit not working in the two areas but the explanation was that it was because of the dispute between themselves and plaintiffs as to the ownership of the two licences.

The defendants in the alternative pleaded fraud and the particulars as