Shaik Daud Ismail JCA:

I have read the judgment of YA Dato' Siti Norma Yaakob, and I concur with it.

Siti Norma Yaakob JCA:

The subject matter of the dispute between the parties in these proceedings is over a piece of land held under Grant No. 4749, Lot 208, Mukim of Batang Melaka, Daerah Jasin, Melaka, measuring approximately 106 acres in area ("the land"). However the instant appeal is only concerned with whether an interlocutory mandatory injunction can be issued to restrain the respondent/plaintiff from ejecting the appellant/respondent from the land. For a better understanding of the issues raised before us, I need to go back as far as 1991 to recount the various events that have occurred and the consequential rights and obligations that have been acquired by all parties concerned.

On 20 October of that year, the registered proprietor of the land was a company known as Jaytra Sdn. Bhd., ("Jaytra") which was managed by one Chun Nyook Lin ("Chun"), (the second third party in the court below) and her husband, Wu Soo Hwa ("Wu"). On that date, Jaytra entered into an agreement with the appellant wherein Jaytra granted the appellant a licence to mine and sell sand, rock and other materials on the land until such deposits have been exhausted on payment of a tribute ("the first agreement"). On the strength of the first agreement, the appellant moved into the land and started its sand mining operations.

Sometime in August 1992, the appellant discovered that Jaytra had no capacity to enter into the first agreement as it had been wound up by an order of court dated 9 May 1988, at the instance of a creditor and Wu, who signed the agreement on behalf of Jaytra was an undischarged bankrupt. Before us, counsel for the appellant conceded that the first agreement is invalid and unenforceable.

On 20 August 1992, Bank Utama (M) Berhad, ("Bank Utama") a chargee of the land issued a notice to the appellant to cease all sand mining operations on the land and to vacate the land. The appellant also received a similar notice dated 22 September 1992, from the official receiver as the liquidator for Jaytra.

As the appellant had expended time and money on its sand mining operations, it persuaded Bank Utama to purchase all of Jaytra's landed properties including the land for RM6.2 million. However the intended sale was to be made through another company by the name of Airport Auto Centre Sdn Bhd. ("Airport Auto") the first third party in the court below, whose two subscriber shares are held by Chun and a relative. As Airport Auto had no funds to purchase the lands, they requested the appellant to defray the deposit and initial expenses amounting to RM200,000. The appellant agreed to make the advance for payment to Bank Utama provided:

(1)that it be given the right to purchase the land for RM500,000 from Airport Auto so that it can continue with its sand mining activities on the land.

(2)that Airport Auto will have the option to repurchase the land from the appellant for RM500,000, such option to be exercised within 30 days from the completion of the sale of the land to the appellant.

(3)in the event the option is not exercised, Airport Auto will grant the appellant the right to extract the sand from the land on terms similar to the first agreement entered into between the appellant and Jaytra.

(4)in the event the sale of Jaytra's landed properties to Airport Auto is not completed or the lands are sold to other parties, Airport Auto will make a refund of the deposit to the appellant, such refund being guaranteed by Wu.

On 12 February 1993, Bank Utama, obtained a consent order in Originating Summons No. 31-1322-86 to have all of Jaytra's landed properties including the land, sold, by way of private treaty to Airport Auto for RM6.2 million on terms and conditions as set out in the draft sale and purchase agreement annexed to the affidavit in support of the order for sale and upon terms to be agreed upon between Bank Utama and the official receiv