Hashim Yusoff FCJ:

[1] The Applicant for leave to appeal to the Federal Court was the defendant in the High Court and the appellant in the Court of Appeal below. As the affidavits filed were voluminous we had reserved our decision after hearing lengthy submission, in order to re-read the Grounds of Judgment of the Court of Appeal as well as of the High Court to see if the Applicant had satisfied the requirements of s 96(a) of the Courts of Judicature Act 1964. I now give my decision.

[2] In Beatrice AT Fernandez v. Sistem Penerbangan Malaysia, [2005] 3 MLJ 681 Malek Ahmad PCA expounded the principles applicable when considering an application for leave to appeal to the Federal Court. His Lordship who delivered the decision of the Federal Court wrote:

"An appeal to the Federal Court is not automatic and all litigants in civil cases who wish to do so must first obtain leave from the Federal Court. In deciding whether leave to appeal is to be granted, the applicant must satisfy s 96(a) of the Courts of Judicature Act 1964 (hereinafter the "CJA"). In Datuk Syed Kechik Syed Mohamed & Anor v. The Board of Trustees of the Sabah Foundation & Ors, [1999] 1 MLJ 257, it was held that leave will not be granted unless both of the following criteria are satisfied by an intending appellant.

(a) The judgment of the Court of Appeal has raised a point of general principle which the Federal Court has not previously decided or a point of importance upon which further argument and a decision of the Federal Court would be to public advantage; and

(b) If the point is decided in favour of the intending appellant, there is a prima facie case for success in the appeal."

[3] It is settled law that besides raising a new point of law that requires the Federal Court to give a ruling, the applicant seeking leave must also show that there is a prima facie case for success in the appeal.

[4] The facts of the case had been explained thoroughly in the judgment of the learned Judicial Commissioner (Report in [2007] 8 MLJ 639) as well as in the judgments of the learned Court of Appeal judges (Reported in [2007] 2 MLRA 495, [2007] 6 CLJ 741). Briefly, the Respondent was the Plaintiff in the High Court whose claim against the Applicant/Defendant was based upon a Sale & Purchase Agreement ("SPA") made between them on 19th November 2004 whereby the Applicant agreed to buy the Respondent's land in Batu Pahat, Johor, which has an area of about 14.4 acres at a price of RM33.5 million. The Applicant has been occupying the Respondent's land but disputed the date when payment of the balance of 90% of the purchase price was due to the Respondent. The Respondent's stand was that the Applicant failed to pay in time and therefore the 10% deposit was forfeited.

[5] According to Special Condition (1) and (3) of the SPA the Respondent was to evict 40 squatters and relocate a school known as the Hwa Nan Chinese School ("the School") away from the said land. The balance of the purchase price was to be paid within 4 months "from the date the Vendor confirms in writing that vacant possession is ready to be delivered to the purchaser pursuant to Clause 1 above and upon confirmation by the purchaser."

[6] The dispute between the parties was as to the determination of the date of intimation of vacant possession by the Respondent to the Applicant and the confirmation thereof by the Applicant based on the construction of Special Conditions (1) and (3).

[7] Consequently by summons in chambers (Enclosure [8]) filed in the High Court under O 14A of the Rules of the High 1980, the Plaintiff sought a construction of Clause 12 and Special Conditions (1) and (3) of the SPA and a determination of the date of delivery of vacant possession of the land as well as the date on which payment of the balance ie 90% of the purchase price was due and payable under the SPA.

SPECIAL CONDITIONS No. 1 and No. 3 read as follows :-

"1. The parties hereto are aware that currently there are forty (40) squatters an