Ian HC Chin J:

Introduction

On 22 February 1979 two writs, Civil Suit No. 351 of 1979 and Civil Suit No. 352 of 1979, were taken out and I shall refer to them, the earlier as the Zara Suit and the other the Banita Suit. The Zara Suit was taken out by the Board of Trustees of the Sabah Foundation, Sinsuran Sdn. Bhd. and Seranum Sdn. Bhd. against Datuk Syed Kechik bin Syed Mohamed and Zara Sdn. Bhd. The claim in Zara Suit can be very briefly stated to be, as against Datuk Syed bin Kechik Syed Mohamed, for an account of profits and for an order of payment for losses and as against Zara Sdn. Bhd., an account of profits by a constructive trustee. As for the Banita Suit, it is a claim by the Board of Trustee of the Sabah Foundation and Seranum Sdn. Bhd. against Datuk Syed Kechik bin Syed Mohamed and Syarikat Banita Sdn. Bhd. for an account of profits in respect of certain timber concession. Seventeen years later, that is on 21 February 1997, the defendants in two suits took out separate applications to have the suits struck out under O. 18 r. 19 of the Rules of the High Court or under the inherent jurisdiction of the High Court, after the Court had fixed the two suits for trial. Arguments were heard on 27, 29 and 31 March. It was contended that there was inordinate and inexcusable delay.

Whether There was Inordinate and Inexcusable Delay

As for the Zara suit, I do not propose to go through each and every year that had elapsed since the filing of the writ. There is basically no serious complaint directed at the inaction during the years from 1979 to 1981 when the parties' solicitors had taken various proceedings concerning the pleadings leading to the filing of the summons for directions ('summons') on 8 August 1981 which summons was heard on 26 October but adjourned generally with no return date. The plaintiffs' solicitors on 23 December requested the High Court Registry to refix the summons for hearing but this met with no success not even after subsequent numerous written requests, viz., one in 1982, another one in 1983, three in 1984, nine in 1985 and three in 1986, the last being on 26 April 1986. These 17 letters requesting for the summons to be refixed for hearing did not manage even a single acknowledgment from the High Court Registry. As if induced or infected by the inaction of the High Court Registry, the plaintiffs' solicitors also undergone a period of inaction because they did nothing from 26 April 1986 to 21 June 1995, a period of more than nine years for which initially no explanation was offered for such inaction but by a subsequent affidavit (which came as a result of the submission that the solicitor should have seen the Deputy Registrar of the High Court concerning the unanswered letters) the solicitor said:

7. As to the suggestion in para. 5.6(a), over the years on a few occasions when I was in Court, I had seen the then Deputy Registrar regarding the Zara and Banita cases. I do not have any records of these meetings.

However from my experience, it was the practise to see the Assistant Registrar on such matters.

8. As to para. 5.6(b), it was not and still is not a practise in the profession for the Counsel to see Judges regarding their cases unless there were exceptional circumstances as explained in paras. 18-21 of my affidavit dated 7 March 1997.

As for the attendances before the Deputy Registrar which the solicitor deposed to, it was criticised by Mr. John Cherryman QC, learned Counsel for the defendants, as being lacking in detail, such as when and what was discussed, as to be of any value. That submission I agree because that averment is such a gloss over the details that it serves no purpose and if it was intended to explain the more than nine years of inaction, it failed miserably. As for the "exceptional circumstances" which the solicitor talked of his affidavit, supra, it was elaborated in his earlier affidavit of 7 March in this way:

18. I was in Court together with my then pupil, Mr. Jun