Tengku Maimun Tuan Mat CJ:

Introduction

[1] The courts in the common law systems or jurisdictions often remind themselves of the 'common sense warning'; that courts ought not to be too quick to assume illegality or invalidity of contracts when dealing with statutes regulating commercial transactions.

[2] This is because in many cases the mere existence of penal sanctions against the impugned transaction is not itself a sufficient ground to render the entire commercial transaction void for illegality unless the law very clearly (expressly or impliedly) intended it to be so even without an express savings clause.

[3] The most recent pronouncement of this court endorsing the above proposition of law is PJD Regency Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor And Other Appeals, 2021 MarsdenLR 942 ('PJD Regency').

[4] The essential issue in this appeal is whether the Asset Purchase Agreement and Asset Sale Agreement in the Bai Bithaman Ajil ('BBA') transaction is invalid for being in violation of s 214A National Land Code 1965 which is now the National Land Code (Revised 2020) [Act 828] ('NLC').

Background Facts

[5] The 1st appellant was granted BBA facility by the respondent ba