Abdul Malik Ishak J:-

Question Of Law For Determination

[1] I was confronted with a summons in chambers in encl. 56 filed by the plaintiff, on the one part, and the 1st, 3rd, 4th and 5th defendants, on the other part, for an order pursuant to O. 14A and/or O. 33 r. 2 of the Rules of the High 1980 ("RHC") that the question of law set out in Schedule "A" be determined accordingly. The 2nd defendant was not involved in this legal manoeuvring since it was wound up on 28 February 1996. In Schedule "A", the question of law was phrased and framed in this way:

[2] Can the plaintiff still maintain and continue with this action on the existing statement of claim filed on 20 January 1988 after the execution of the settlement agreement dated 18 November 1993 and the transfer of the 6,000,000 ordinary shares in Sama World Asia Sdn Bhd to the plaintiff?

[3] In the event the issue as phrased and framed was answered in the negative, this would determine the action in favour of the 1st, 3rd, 4th and 5th defendants.

[4] But, in the event the issue as phrased and framed was answered in the affirmative, the action would proceed accordingly on the other issues arising.

[5] Ours is an adversarial system of procedure as compared to the inquisitorial system used in civil law jurisdictions. Thus, the question of law as phrased and framed would certainly expedite the disposal of this case, once and for all.

[6] It was a joint application by the parties for the disposal of the plaintiff's case on a point of law.

[7] It must be borne in mind that only questions of law that can be raised by the parties must necessarily arise in the action itself (Republic of Bolivia v. Bolivion Navigation Co . [1876] 24 WR 361), and it has always been the case that the Court will not decide fictitious questions of law (Bright v. Tyndall [1876] 4 Ch. D 189; and Sumner v. William Henderson & Sons [1963] 1 WLR 823, [1963] 2 All ER 712, CA).

The Subject Matter Of The Plaintiff's Claim Under The Existing Statement Of Claim

[8] In its existing statement of claim filed on 20 January 1988, the plaintiff sought to enforce its alleged rights against the defendants based on the alleged deed of settlement dated 5 October 1987 (which was not the deed of settlement dated 18 November 1993 as alluded to in the question of law in Schedule "A") and an alleged letter of guarantee dated 5 October 1987 which the plaintiff alleged was entered into between the plaintiff and the defendants. The plaintiff's alleged cause of action was principally founded on an alleged breach of the deed of settlement dated 5 October 1987.

[9] According to the plaintiff in its existing statement of claim that under the alleged deed of settlement dated 5 October 1987 the following eventualities would occur:

(a) that the 1st and the 2nd defendants were to pay the plaintiff a sum of RM7,232,404.08 (see paras. 9 and 10 of the plaintiff's existing statement of claim);

(b) that the 1st, 2nd, 3rd, 4th and 5th defendants would procure the release of the plaintiff's corporate guarantees (see para. 11 of the plaintiff's existing statement of claim); and

(c) that the 3rd, 4th and 5th defendants guaranteed the repayment of the sum payable by the 1st defendant (see para. 16 of the plaintiff's existing statement of claim).

[10] The plaintiff asserted its claims in the existing statement of claim and sought judgment for the following reliefs:

(i) the repayment of the sum of RM7,132,404.08 under the alleged deed of settlement dated 5 October 1987 against the 1st and the 2nd defendants as principal debtors and against the 3rd, 4th and 5th defendants as guarantors (see the averments in paras. 17, 18, 19, 20 and 21 of the plaintiff's existing statement of claim); and

(ii) damages for breach of the term of the alleged deed of settlement dated 5 October 1987 to procure the release of the corporate guarantees (see the averment at para. 21(c) of the plaintiff's existing statement of claim).

A New Event - The Settlement Of The Suit By Way Of Th