JUDGMENT

Rahmah Hussain JCA:

The appeal before this court is against the decision of the learned High Court Judge in setting aside the arbitrators' award dated 22 February 2000.

The arbitration proceedings was instituted pursuant to an arbitration clause (cl. 6.03) of a Consultancy Services Agreement dated 26 October 1984 ("CSA") signed between the Lembaga Amanah Kebajikan Masjid Negeri Sarawak ("Lembaga") and Sami Mousawi-Utama Sendirian Berhad (appellant).

In the light of the pleadings filed by the parties in the arbitration proceedings and at the request of the parties thereto, the arbitrators directed that the following Preliminary Issue be tried, namely:

Whether the Claimant (a body corporate) being not an "Architect", "Engineer" or "Quantity Surveyor", as defined in the Architects Act, 1967, Registration of Engineers Act, 1967 and Quantity Surveyors Act, 1967, (respectively) can having regard to ss. 7 and 7A of the said Acts, provide in Malaysia, the comprehensive architectural, engineering and quantity surveying consultancy services for the design and supervision of the construction, building and erection of the new State Mosque and related buildings which the Claimant is contractually obligated to provide under the Consultancy Services Agreement dated 26 October 1984. In any eventwhether the Claimant has a cause of action against the Respondent in respect of its entitlement to fees and other remedies pursuant to the Consultancy Services Agreement dated 26 October 1984 in the light of the provisions of the Architects Act, 1967, Registration of Engineers Act, 1967 and Quantity Surveyors Act, 1967" (hereinafter referred to as the "Preliminary Issue").

The three learned arbitrators, had on different grounds, answered the Preliminary Issue in the affirmative - with two arbitrators finding that there was no breach of s. 7 & 7A of the said Acts and one finding that s. 39 of the Acts saved the claimant (appellant).

Dissatisfied with the said decision the respondent (Government of Sarawak) applied to the High Court to set it aside.

The learned High Court judge in a lengthy and erudite judgment allowed the respondent's application. Hence this appeal before us.

Facts Of Case

On 5 July 1984 the British architectural firm called Sami Mousawi International ("SMI"), with Sami Mousawi as the principal, and the Malaysian architectural cum engineering firm called Perunding Utama ("PU"), with Abdullah Mohd. Noor as the principal, jointly wrote to the Amanah Kebajikan Mesjid Negeri Sarawak ("Lembaga") to propose the provision of comprehensive consultancy services for the design and supervision of a proposed new Sarawak State mosque. It was stated in the proposal:

(1) that SMI would prepare in the United Kingdom the architectural drawings from concept, schematic and outline design to actual tender drawings and specifications as well as the mechanical and engineering (M&E) report, layout, design and calculations; and

(2) that PU would assist in some of those works and, inter alia, prepared the civil work designs and drawings, cost estimates, structural drawings, M&E detail drawings and specifications and bills of quantities and PU would submit and seek approval of the building plans from all the relevant authorities.

It was also proposed that a legal entity would be formed to enter into the agreement with the Lembaga. The proposal was accepted by the Lembaga. The claimant (appellant) was formed and the Consultancy Services Agreement (CSA) was executed incorporating the proposal. The claimant and the two directors were not registered nor approved to practise the disciplines covered by the three Acts.

Therein the CSA, the claimant (appellant) described itself as "a group of Consulting Architects and Engineers of reputable standing and expertise and is able and capable to undertake and provide all the necessary services to effectively and satisfactorily perform and complete the design and supervision of the project" that is the comprehensive d