JUDGMENT OF THE COURT

Introduction

These are two related appeals fixed for hearing before us. The first, is the Civil Appeal No. 02-13-2007 (S) which the parties have referred to as "Zara Appeal". The second, is the Civil Appeal No. 02-14-2007 (S) which has been referred to as "Banita Appeal". The Zara Appeal is in relation to appeals against the decision of the Court of Appeal in Civil Appeal No. S-02-838-1999 and No. S-02-848-1999 given on 6 June 2003 on an appeal from the judgment of the High Court given at Kota Kinabalu on 6 September 1999 in Civil Suit 351 of 1979. The Banita Appeal is in relation to the appeals against the decision of the Court of Appeal in Civil Appeal No. S-02-849-1999 and No. S-02-820-1999 given on 6 June 2003 on an appeal from the judgment of the High Court given at Kota Kinabalu on 6 September 1999 in Civil Suit No. 352 of 1979. Both the High Court Civil Suit No. 351 of 1979 and Civil Suit No. 352 of 1979 were heard in a joint trial by the learned Judge of the High Court, Ian Chin J. wherein the parties involved in the suits and the factual background leading to the dispute between the parties are substantially the same.

Preliminary Objections

At the outset of the hearing both parties indicated their intention to raise preliminary objections on a number of issues arising from both the Zara Appeal and the Banita Appeal. We do not find it necessary to deal with these preliminary objections here which we had dismissed as being of no merits except on one issue raised by the appellants in the Zara Appeal in challenging the validity of the decision of the Court of Appeal dated 6 June 2003 on the four grounds set out as follows:

(1) Whether the function of a judge of the Court of Appeal for the purpose of section 42 of the Courts of Judicature Act 1964 ("CJA) includes the delivery of a reasoned judgment.

(2) As to the operation of sections 38 and 42 of the CJA where a duly constituted Court of Appeal consisting of three judges has pronounced judgment in Open Court reserving its reasons and,

(a) only two such judges have subsequently provided written or any grounds of judgment;

(b) these judges have both retired at the date their respective grounds of judgment are pronounced in Open Court;

(c) the third judge has neither provided grounds of judgment of his own nor communicated his approval of the grounds of judgment of the others, and further in any event;

(d) the third judge has not been unable, through any known illness or any other cause, to provide any grounds of judgment of his own.

(3) Whether and in what circumstances inordinate delay affects the validity of a judgment.

(4) Whether there had been inordinate delay which invalidated the judgment in these suits.

In dealing with the appellants' challenge to the validity of the decision of the Court of Appeal dated 6 June 2003 we find it appropriate to state the following chronology of events:

06.09.1999 - Main Judgment of Ian Chin J. in both suits delivered.

23.03.2001 - Conclusion of argument in the Court of Appeal before the Coram comprising her ladyship Siti Norma, JCA (as she then was) and their lordships Mohd Saari, JCA and Dennis Ong Jiew Fook, JCA.

06.06.2003 - Decisions of Court of Appeal in both suits announced in Open Court in the presence of all three Judges.Siti Norma, JCA stated that the decisions were unanimous

09.06.2003 - Written Grounds of Judgment signed by his lordship Mohd. Saari, JCA who subsequently retired.

05.01.2007 - Written Grounds of Judgment signed by her ladyship Siti Norma, JCA who then retired.

05.02.2007 - Deputy Registrar handed copies of the written Grounds of Judgment to the parties' representatives.

21.03.2007 - Leave to Appeal granted to the respective parties by the Federal Court.

It is unfortunate to note from the above chronology of events there is an element of delay in the delivery of the judgment and the written Grounds of Judgment. However, we are concerned here only on the validity of the decision or judgment