Lamin Mohd Yunus PCA:

I have had the privilege of reading the draft judgment of my brother judge Peh Swee Chin, FCJ and with respect I entirely agree with him as to the result in that we uphold the order of the Court of Appeal and that the appeal is therefore dismissed. The High Court below at Kota Kinabalu decided in favour of the appellants who brought this action as plaintiffs before the said court by way of an originating summons.

The facts of the case have been gone into in some length by the Court of Appeal in its judgment and to some extent by my brother judge Peh Swee Chin, FCJ and so I do not propose to repeat them unless when I find it necessary to do so. The High Court declared that the Federal licence of January 1995 was within the scope of the 1987 Agreement. In other words the 1987 Agreement remained valid and enforceable even in the face of the terms of the said Federal licence on the ground that the terms of the licence could be implied into the agreement. However the Court of Appeal did not agree with the finding of the High Court and after dealing extensively with the legal principles relating to implied terms it came to the conclusion that the 1987 Agreement could not further subsist and be enforceable. The Court of Appeal also struck down the said agreement on the ground of illegality, an issue not canvassed before the High Court but taken for the first time before it.

On the issue of implied term, with respect, my brother judge Peh Swee Chin, FCJ found himself at variance with the Court of Appeal. He said that with the issuance of the Federal licence of 1995 the Club was to carry on with the on-course and off-course betting "a sort of old wine in new bottle" and so the decision of the High Court should be upheld. For my part on whichever principles relating to implied terms as discussed by the Court of Appeal the order of the High Court cannot be upheld. I therefore agree with the finding of the Court of Appeal on this issue. If I may mention very briefly only on certain aspects of the arguments regarding the said issue. There were some material differences between the conditions of the original licence and the amended licence both issued by the State Authority on the one hand and on the other those contained in the Federal licence of 1995. As observed by the Court of Appeal some of them were absent in both the original and the amended licenses. For example conditions 9, 25 and 26 of the Federal licence are not found in both the original and the amended licence. Conditions 9, 25 and 26 read:

9. The licensee shall produce a list and details of agents that are appointed by him for the Minister's approval.

The agents whose appointment has not or was not approved by the Minister cannot operate.

25. The Minister can at any time add, vary or cancel any condition or restriction that is stated in this license.

26. The Minister can at any time cancel this license without giving any reason.

Further upon the issuance of the 1995 Federal licence under the Pool Betting Act 1967, it remains valid only for one year as condition No. 1 so stipulates. The previous two licences had no time limit. Again under the Federal licence, it is the Minister who approves the appointment of any agent. Under the 1987 Agreement the company (the appellants) has the exclusive rights to conduct and manage all bettings. Clearly therefore the Federal Minister's powers under the Federal licence are beyond the contemplation of parties to the 1987 Agreement. In this regard, I need only quote the words of the Court of Appeal appearing at p. 196 of the appeal record:

We are entirely satisfied; adopting the objective test suggested by Lord Radcliffe in Davis Contractors, that the farthest thing operating upon the minds of the present litigants, when they made their bargain, having regard to all the facts and circumstances in existence at the time when they made it, was the repeal of the Ordinance and its replacement by the Act. Nor