JUDGMENT

Abdul Malik Ishak J:

I am suprised that the first defendant lodged an appeal against my decision which was handed down on 15 February 1996 through their Counsel Mr. Rodney Gomez from Messr. Shearn Delarnore & Co. The brief facts that led to my decision dated 15 February 1996 may be summarised in this fashion.

On January 31, 1996, the Senior Assistant Registrar heard an application in chambers vide enclosure 5 where the plaintiff sought for the following prayers:

1. Bahawa Penghakiman Terus di bawah Aturan 14, Kaedah-Kaedah Mahkamah Tingi, 1980 dimasukkan bagi pihak plaintif terhadap defendan pertama dalam jumlah RM3,140,197.10 atau secara alternatif jumlah RM1,915,189.00 bersama dengan faedah pada kadar 8% setahun dari tarikh penghakiman sehingga tarikh penyelesaian.

2. Bahawa kos permohonan ini di bayar oleh defendan pertama kepada plaintif.

In the event, the Senior Assistant Registrar gave summary judgment in the sum of RM1,915,189.00 against the first defendant who, in due course, filed a notice of appeal to the Judge in Chambers under O. 56 of the Rules of the High Court, 1980 ('RHC'). This was a perfectly legitimate course of action taken by the first defendant. When the matter finally came up before me on 15 February 1996, Mr. Rodney Gomez represented the first defendant while Mr. Jagjit Singh from Messrs Jagjit Singh & Co. appeared for the plaintiff. What transpired before me on15 February 1996 was equally amazing. Though both parties made short submissions yet they both agree that the decision of the Senior Assistant Registrar should be affirmed and that, additionally, I was to make an order that the sum of RM1,225,008.10 be referred to arbitration. I did just that.

It must be emphasised that this judgment does not concern the second defendant.

Incidentally it is instructive to note that in enclosure 10, the first defendant sought for the present proceedings to be stayed under s. 6 of the Arbitration Act, 1952 supported by an affidavit of Yap Kiang Sang affirmed on 15 December 1995 where at paragraph 4 thereof he deposed that:

Saya dengan sesungguhnya percaya menurut fasal 34 kontrak adanyasuatu perjanjian untuk merujuk segala pertikaian dan perbezaan kepada timbangtara. Sekarang dikemukakan dan ditunjuk kepada saya dan ditanda sebagai 'YKS-1' adalah sesalinan Artikel Perjanjian dan syarat kontrak.

Clause 34 of the contract stipulates that all disputes and differences ' shall be and is hereby referred to the arbitration ...' and clearly this must be the intention of the first defendant when they filed enclosure 10.

Rule 17 of the Legal Profession (Practice And Etiquette) Rules 1978 states

that: "An advocate and solicitor shall not practice any deception on the Court."

This is followed by r. 18 which states in strong terms that:

The conduct of an advocate and solicitor before the Court and in relation to other advocates and solicitors shall be characterised by candour, courtesy and fairness.

I did say in K.S. Chua & Co. v. Chui Miang Chew & 5 Others [1995]3 AMR: 2605 especially at page 2618 that:

Lawyering is not an easy job. It requires hardwork, skill, patience, knowledge of the law and, above all, good health and some measure of luck.

(a) to put an end to the proceedings, for they are thereby spent and ex