JUDGMENT

Richard Malanjum J:

[1] This is the JUDGMENT of the court.

[2] This is an appeal by the Appellant. He was the 1st Plaintiff in the court below. He is appealing against the decision of the learned Sessions court Judge (SCJ) dismissing his claim and one other.

[3] There were two suits, namely Nos. 52-03-96 and 52-04-96 before the learned SCJ with several plaintiffs involved. However at the commencement of the hearing their learned counsel applied to discontinue the action of the others. Hence, in suit No. 52-03-96 the remaining plaintiffs were the Appellant and Sri Gemawan Sdn. Bhd. As for suit No. 52-04-96 only the Appellant is left as the plaintiff. It was also disclosed that since January 1996 Sri Gemawan Sdn. Bhd. had been wound up.

[4] The facts of the case were well covered by the SCJ. There were also agreed facts submitted by learned counsel for the parties at the commencement of the trial. Thus it would be sufficient if the gist is reproduced herein.

[5] There were two logging trucks with trailers. One was a Kenworth Logging Truck bearing registration No. SK1921 whilst its trailer bore the registration No. SK1922. For convenience these are collectively referred to herein as 'KLT'. The other truck was known as the Pacific Logging Truck and its registration number was SU3187 while its trailer was registered with number SU3189. And for ease of reference these are also collectively referred to as 'PLT'. At all material times both KLT and PLT ('the trucks') were used to carry logs in Ng Gaat, Kapit, Sarawak. The condition of the road on which these trucks operated was severe. The gradient was steep besides being winding in most part. And as was the practice in the logging industry the trucks were insured with the Respondent under Special Perils Policy.

[6] On or about 17 November 1993 while KLT was going on a slope and laden with logs the brakes failed. As a result its driver took an evasive action by driving it to the side of the road. However the slope did not help and thus the truck went forward in downhill direction. At the same time the cables that held the logs snapped due to the sudden thrust. And even though the truck did not go further downhill as it was caught by an area of soft mud the momentum and sudden thrust made the logs to damage extensively the safety barrier tank, the truck's cabin, the engine bay, steering and radiator of KLT. Hence for the claim under the suit No. 52-03-96.

[7] As for PLT the damage was caused in a similar fashion although it was not on a downhill direction at that time. Again it was due to brakes failure that the driver had to take an evasive action and the sudden halt of the truck caused the logs to thrust forward thereby causing extensive damage to the front axle and engine. The gear box was also ripped off the chassis. Accordingly the claim was made under suit No. 52-04-96.

[8] At the outset of the hearing learned counsel of both parties agreed to seven issues to be considered by the SCJ. And they are reproduced as follows:

a. Whether the Plaintiffs or any one of them have/has any insurable interest as at the date of the Cover Note NG 92- 003985 dated 17 December 1992? If the answer to this question is answered in the negative, then both the summons must ipso facto be dismissed with costs to be taxed. If however, the court should find that all or anyone of the Plaintiffs have/has insurable interest, then the rest of the issues must be considered. In respect of any Plaintiff who is found to have no insurable interest, the claim by any such Plaintiff must be dismissed with costs to be taxed.

b. Whether the Plaintiffs are the legal owners of the KLT and the PLT in order to sustain their cause of action?

c. Whether all the Plaintiffs or anyone of them have/has any locus standi to legal interest to commence the summons against the Defendants?

d. Whether the Defendants are entitled to avoid the Special Perils Policy and repudiate liability on given grounds, inter alia :

Ground 5 - that the Plain