Abdul Malek Ahmad FCJ:

I have read the judgment in draft of my learned brother Abdul Hamid Mohamad JCA and entirely agree with his findings relating to the withdrawal of, and costs to be paid on, the notice of motion to set aside the order of this court on 28 March 2001 granting leave to appeal. I also fully endorse the manner he detailed the background of the case. However, despite his somewhat persuasive stance in dealing with the appeal, I find it difficult to come to the same conclusion as he did since he had declined to answer the question posed and had dismissed this appeal without even considering the merits. In other words, he had allowed the preliminary objection of the respondents.

Learned counsel for the respondents Dato' V. Sivaparanjothi raised the preliminary objection at the outset based on their letter dated 7 May 2002. The four issues raised were:

(a) the question/issue for which leave was granted is not a matter/issue that arose or was decided by the High Court in the exercise of its original jurisdiction and/or by the Court of Appeal;

(b) consequently, the Federal Court did not have jurisdiction to grant leave. Accordingly, the leave granted should be withdrawn/set aside and/or the aforesaid appeal ought to be dismissed;

(c) the question for which leave was granted is hypothetical and/or academic; and

(d) consequently, the Federal Court should decline to answer the question and the aforesaid appeal ought to be dismissed.

He conceded that these issues were not raised at the leave application hearing but added that they could be taken at any stage. He cited Capital Insurance Bhd v. Aishah bte Abdul Manap & Anor[2000] 4 CLJ 1, where this court held that since the preliminary objection related to the question of jurisdiction of the Federal Court to hear appeals from the Court of Appeal, and noting that at the leave stage the preliminary objection taken by the respondents that the leave application was improper was summarily dismissed by the court, the respondents were entitled to raise this preliminary objection and the court could entertain the application.

At p. 5 of that case report, Mohamed Dzaiddin FCJ, as he then was, said:

There is however one interesting point which deserves our consideration. From the chronology of events, on 17 February 2000 an application for leave to appeal against the Court of Appeal decision was granted by this court in which I sat as a panel member. A preliminary objection taken by the respondents that the application was improper was summarily dismissed by the court. In view of leave to appeal having been granted earlier by this court, can the respondents raise here a preliminary objection that this court has no jurisdiction to hear the appeal?

At p. 6, he continued:

In our view, there is much force in the submission. Since the preliminary objection relates to the question of jurisdiction of the Federal Court to hear appeals from the Court of Appeal, and noting that at the leave stage the preliminary objection taken by the respondents that the leave application was improper and summarily dismissed by this court, the respondents are entitled to raise this preliminary objection and this court can entertain the application.

Learned counsel reiterated that the particulars the appellant intended to put in his proposed amended statement of defence had already been pleaded. The purpose was just to derail proceedings, he added, as the discovery of particulars after the pleadings had closed was never raised in the High Court or in the Court of Appeal.

When my learned brother Steve Shim Lip Kiong CJ (Sabah and Sarawak) as presiding judge interjected to say that all these arguments could be dealt with in the appeal proper, learned counsel agreed. However, at that point of time, I was already aware that the facts in the Capital Insurancecase were distinguishable as there the Court of Appeal dealt only with the preliminary objection on the point that the appeal record was defective f