Gopal Sri Ram JCA:-

[1]The facts of this case are fairly simple. On 6 September 1994, the Deputy Home Minister issued a warrant of arrest for the arrest of the appellant pursuant to s. 2(i) of the Restricted Residence Act (Chap 39). The appellant was arrested on 20 September 1994. He was taken to the Klang Police Station and then sent to Pudu Prison where he was detained for a further 30 days. On 19 October 1994, the Minister ordered that the appellant be detained for three months at Mukim Dabong, Kuala Krai, Kelantan effective from the date of the order. However the appellant was only brought to the Dabong Police Station on 20 October 1994 where he was detained for several hours. The appellant was then instructed to spend four nights at the house of the OCS, Sergeant Major Ismail before being released at Mukim Dabong, Kuala Krai, Kelantan to commence his term of restricted residence there.

[2]In a summons taken out before the High Court, the appellant challenged, by way of declaratory relief, his restricted residence at Mukim Dabong, Kuala Krai as being illegal and void on the ground that his arrest and the other action taken against him by the police immediately preceding his restricted residence were unlawful. That summons was dismissed by the learned judge. The appellant then appealed to us.

[3]When the appeal was called on for hearing, learned senior federal counsel for the respondent rose to his feet and very properly informed us that the restriction order made against the appellant was at an end and that the appeal was accordingly academic. Learned counsel for the appellant however argued that if the appeal were to be dismissed out of hand, his client would suffer injury as he was facing charges for having breached the restriction order. All that counsel wanted was some form of protection for his client that would not deprive him of a defence to the charges framed against him.

[4]We were entirely in agreement with learned senior federal counsel that the appeal was indeed academic. The subject matter of the appeal was the correctness of the restrictive residence order made against the appellant and to which he had been subject. That order having come to an end, there was no longer a valid lis before us for adjudication. Any views we may express about the validity or otherwise of the order would be wholly academic in the circumstances of this case. It will simply have no effect at all. It will mean that we would act in vain. And it is settled law that a court will not act in vain. Equally is it also settled that the court will not grant academic declarations. See, Re Barnato [1949] Ch 258. There is therefore no alternative but to dismiss this appeal.

[5]But we equally recognised the need to ensure that the appellant will not suffer an injustice merely because his appeal is academic. The appellant's fear is that he will be deprived of a defence to the charges he is facing for having allegedly breached the order for restricted residence made against him. That difficulty will be sufficiently averted by ensuring that no point of issue estoppel is to arise against him by reason of the dismissal of this appeal. That is the rider we add to the order we made dismissing the appeal.

[6]We may add that the appellant need not have brought these proceedings at all. He could, in the criminal proceedings before the magistrate, have attacked the validity of the order made against him. As Abdoolcader J said in Eu Finance Berhad v. Lim Yoke Foo [1982] 2 MLJ 37:

The general rule is that where an order is a nullity, an appeal is somewhat useless as despite any decision on appeal, such an order can be successfully attacked in collateral proceedings; it can be disregarded and impeached in any proceedings, before any court or tribunal and whenever it is relied upon - in other words, it is subject to collateral attack. In collateral proceedings the court may declare an act that purports to bind to be non-existent. In Harkness v. Bell's