JUDGMENT

Preliminary:

When these cases were fast tracked and came before me for case management, counsel for Hubah Sdn Bhd, Konkamaju Sdn Bhd, Konkajadi Sdn Bhd and Aggasf Properties Sdn Bhd, Mr Ronny Cham informed the court that these cases could be dealt with without the need for oral evidence to be called and was willing to accept the facts as put forth by the opposing sides which are represented by three set of lawyers. Mr Cham's proposal was not accepted by opposing counsel; hence I was required to hear submissions as to whether I should order an Order 14A trial. After hearing submissions from respective counsel, I concur with Mr Cham's proposal except for the issue of Limitation raised by him. That in short is the preliminary.

Proceeding:

These cases in substance concern various agreements and powers of attorney executed between the litigants. Koperasi Pusaka (Penampang) Berhad (RCS 219/72) (formerly known as Syarikat Kerjasama Batu-Batu Jayadiri (Moyog) Berhad) ("Koperasi"), who wears the hat of the plaintiff in two of the cases and the hat of the defendant in the other four cases, is now coming to court to set aside the various agreements and powers of attorney on the ground that they are null and void based on the non compliance of the Co-operative Societies Act 1983 and By laws of the Koperasi. This cause of action is opposed by their opponent on the ground that it is time barred and that the non compliance by the Koperasi of Co-operative Societies Act 1983 does not render the various agreements and powers of attorney null and void.

Background facts:

The agreed facts of the parties are as set out in appendix A. Rather than setting out the agreed facts in the body of this judgment, I find the judgment to be more readable if it is attached to this judgment which I do now as annexure A.

Issues:

The issues as agreed are basically these:

1. Whether the claims and counterclaims of the Koperasi, being a body corporate under Section 9 of the Co-operative Societies Act 1993 , in this joint trial must properly be a derivative action susceptible to the application of the rule in Foss v. Harbottle [1843] 2 Hare 461 and the exceptions to it and therefore the Koperasi's claims and counterclaims were not in order as the Koperasi's claims and counterclaims were brought by the Koperasi and the Koperasi was not named as a defendant in the Claims and Counterclaim?

2. Whether the by-laws of the Koperasi bind the Koperasi and third persons, namely, the Companies, who are not members of the Koperasi to the extent that third persons, namely, the Companies, are bound by the Koperasi's by-laws in all dealings and transactions with the Koperasi?

3. Whether the pleadings of the Koperasi in the Originating Summons and Civil Suits in this joint trial disclose a dispute touching on the constitution, by-laws, conduct of general meetings, management or business of a co-operative society between a member, past member, or person claiming through a member, past member or deceased member, and the co-operative society, its Board, or any officer of the co-operative society; or between the Koperasi or its Board and any officer of the Koperasi and therefore beyond the jurisdiction of this Honourable court by virtue of Section 82 of the Co-operative Societies Act 1993 ?

4. Whether the Koperasi's actions, whether claims or counterclaims in this joint trial, arising out of the following agreements or contracts are statute barred by virtue of Sabah Limitation Ordinance (Cap 72):-

(1) Sale and Purchase Agreement and Power of Attorney both dated 23.02.1999 between the Koperasi and Hubah;

[See: Statement of Claim in Suit No. K24(22)-172-2008, @ pg. 4 of Bundle of Pleadings]

(2) Sale and Purchase Agreement and Power of Attorney both dated 20.09.2002 between the Koperasi and Hubah;

[See: Statement of Claim in Suit No. K22-140-2009, @ pg. 30 of Bundle of Pleadings and Statement of Claim in Suit No. K22-163 of 2009 @ page 68 of the Bundle of Pleadings]

(3) Deed of Assignment dated