JUDGMENT

Abdul Rahman Sebli JCA:

[1] For the salient facts, we shall rely on those that the learned counsel for the appellants had set out in his written submissions, with the necessary modifications. They are as follows. The appellants are the owners of properties adjacent to the land held under TL017522593 situated at Signal Hill, Kota Kinabalu, Sabah ("the subject land"), which is being developed by the 3rd respondent into a 15-storey condominium. The 3rd respondent is the registered owner of the subject land.

[2] The appellants had earlier filed an application for judicial review in the High Court at Kota Kinabalu amongst others to quash the decision of the 1st respondent giving development and building approvals for the 3rd respondent's high rise residential project. The grounds on which the application was made were that:

(a) the planning approvals were unlawful, null and void on the ground of procedural unfairness;

(b) the planning approvals were unlawful, null and void on the ground that they were unreasonable and irrational; and

(c) the planning approvals were unlawful, null and void on the ground that they are contrary to the legitimate expectation of the appellants.

[3] At the judicial review hearing, the 1st and 3rd respondents raised the following preliminary objections:

(i) That the application for judicial review was filed out of time;

(ii) That the appellants had come to Court with unclean hands.

[4] The unclean hands issue relates to the 3rd respondent's allegation that the appellants had illegally encroached into an open space adjacent to its high rise residential project by building structures such as a garage, a retaining wall and a pondok, in breach of By-Law 22 of the Building By-Laws, 1951.

[5] The open space does not, however, belong to the 3rd respondent. It belongs to the State. It was urged upon the Court by the 1st and 3rd respondents that to grant the appellants the reliefs sought would be tantamount to sanctioning an illegal occupation of State land and endorsing the use of the open space for personal benefit.

[6] On 13 August 2013, the learned High Court Judge upheld preliminary objection (i), ie the limitation issue and dismissed the appellants' entire application for judicial review on that ground alone. The learned judge did not address the issue of unclean hands as he took the view that the limitation issue goes to the jurisdiction of the Court.

[7] Being dissatisfied with the decision, the appellants appealed to this Court. At the hearing of the appeal on 12 November 2014, the 3rd respondent raised the issue of unclean hands against the appellants, and this can be seen from the following paras 23 and 31 of the learned counsel's written submissions:

"23. Further, it is respectfully submitted that the appellants' application for judicial review should not be entertained by this Honourable Court as they have come to Court with unclean hands.

31. In view of the clear legal principles that the Court will not assist a litigant who comes to Court with unclean hands, it is respectfully submitted that this Honourable Court ought to dismiss the appellants' appeal with costs."

[8] It is thus clear that in asking this Court to dismiss the appellants' appeal, the 3rd respondent had relied on the ground that the appellants had come to Court with unclean hands. After hearing the parties, this Court comprising Justices Zaharah Ibrahim (now FCJ), Alizatul Khair Osman Khairuddin and Mohd Zawawi Salleh overturned the learned judge's decision and ordered that the appellants' application for judicial review be heard on the merits.

[9] By allowing the appellants' appeal, it is implicit that this Court rejected the 3rd respondent's contention that the appellants had come to Court with unclean hands. It would have dismissed the appellants' appeal if it were otherwise. There can be no argument that the unclean hands issue was an issue that this Court was called upon to determine as it was specifically raised by the 3rd respondent in