Zulkefli Makinudin FCJ:

Background

[2] The relevant background facts leading to the present application by the third to the eighth respondents may be summarized as follows:

(1) Pursuant to the order of Court dated 25 August 1975 made in Penang High Court Originating Summon No 156 of 1975 the sale and purchase agreement in respect of landed properties belonging to the testator was entered into between the first and second respondents as duly appointed trustees by the Court and the third to the eighth respondents as purchasers on 8 January 1979.

(2) The order of Court dated 25 August 1975 referred to above, inter alia, reads as follows:

AND IT IS FURTHER ORDERED that the Testator's immovable property be sold with the approbation of the Judge free from encumbrances (if any) and subject to the encumbrances (if any) of such of them as shall be agreed upon AND IT IS FURTHER ORDERED that the Applicant's and the Defendants' Solicitors do have the joint conduct of the sale of all the immovable property of the Testator still remaining unsold AND IT IS FURTHER ORDERED that the proceeds of sale of the Testator's immovable property be paid into Court to the credit of these proceedings subject to further Orders.

(3) The sale and purchase agreement dated 8 January 1979 is subject to the following terms and conditions:

(i) The purchase price is calculated at the price of RM1.60 per square foot,

(ii) Deposit is 5% of the purchase price or RM150,000.

(iii) The subject land being released from compulsorily acquisition by the State Authority of Penang.

(iv) Formal sanction to sell in accordance with the Probate and Administration Act 1959 ("Act 97").

(v) Completion is within six months from the date of order of Court sanctioning the sale by the trustees.

(vi) If the acquisition of the land is not released within two years from the date of the agreement, it shall be null and void.

(vii) Purchasers entitled to specific performance of the Agreement.

(viii) Time shall be the essence.

(ix) If the purchasers default in payment of the balance purchase price, deposit will be forfeited by the trustees.

(4) The State Authority duly released the said land from compulsorily acquisition within two years but the vendors (the first and second respondents) refused to apply for "approbation of the judge" in respect of the sale in accordance with the express terms of Court order dated 25 August 1975 referred to above.

(5) Pursuant to Civil Suit No 8 of 1981, the third to the eighth respondents (purchasers) sued the first and second respondents (vendors), inter alia, for specific performance of the sale and purchase agreement dated 8 January 1979 ("the first action").

(6) The appellant was allowed to intervene in the first action referred to above and was added as the fourth defendant.

(7) In the course of the proceedings of the first action the appellant also applied to amend his defence by including, inter alia, an allegation that the first and second respondents had no power to execute the sale and purchase agreement dated 8 January 1979. With regard to the allegation in the proposed amendment that the land was sold at an under value, the learned High Court Judge refused leave to amend. No appeal was filed by the appellant against such refusal.

(8) On 9 September 1997, the Court allowed the purchasers' claim in the first action and decreed specific performance in terms of the sale and purchase agreement dated 8 January 1979.

(9) The first and second respondents and the appellant appealed to the Court of Appeal vide Civil Appeals No P-02-556-1997 and P-02-593-1997 against the decree of specific performance of the High Court in the first act