JUDGMENT

Chang Min Tat FJ (delivering the judgment of the Court) :

This is an appeal from the decision of the High Court at Kuching ordering the appellant to give up vacant possession of premises No. 29 Padungan Road Kuching to the respondent and to pay damages for trespass assessed at $600 pm from 1 March 1976 to delivery of possession.

This order of the learned Judge was given in Civil Suit No. K512 of 1977 on 21 April 1979. Though it was stated in the order that this suit had come up for hearing and evidence was adduced, the appeal record included the pleadings in an earlier Suit No. K267 of 1976, in which the self same prayers and reliefs were sought.

By her statement in this earlier action, the respondent claimed possession on one ground and one ground only, namely that the appellant was a trespasser. The statement of defence admitted the respondent's legal title to the premises but claimed that while previously from 1 August 1974 to 31 December 1974 he was the sub-tenant of Kwong Ing Co. Ltd (the company) who was then the tenant of the premises holding the same of the then registered proprietors at a rent of $600 pm under a registered sub-lease for ten years from 1 May 1968 with a contractual right to renewal for a further but indeterminate term, the respondent had agreed to accept him as the new tenant at an increased rental of $700 as from 1 January 1975. The respondent had then desired a further increase of the rent to $750 and the appellant had agreed. To this intent, the respondent's solicitors had been instructed to prepare an agreement of lease which the appellant had signed but which remains unexecuted by the respondent. The defence claimed the protection of the Rent Control Ordinance Cap. 86 (Sarawak Laws) and finally contended that the notice to quit dated 8 June 1976 was bad in law.

It is clear that the prayers in the earlier action are precisely those obtained by the respondent in her later action. Yet no point was taken that the later action was totally unnecessary and ought to be rejected and dismissed out of hand for prolixity and abuse of the process of Court. Any defect in the pleadings could have been cured by amendments, but no defect was shown and no application for any amendments was ever made.. Despite the clear prolixity, evidence was led in the former action but it was said to decide a preliminary point of law before the trial of the action. At it turned out, it was not on any point of law at all. It was on two questions of fact, the first whether the respondent had consented impliedly to the sub-letting by the company to the appellant of the shop premises from 1 August to 31 December 1974 and the second whether she had accepted the respondent as chief tenant of the entire premises thereafter. The Court answered the first question in the affirmative and the second in the negative.

This, of course, meant that the case would have to go on. In the ordinary course of events, a preliminary point of law which does not decide the matter between the parties one way or the other is an unjustified waste of time and occasions an equally unjustified increase in costs. Preliminary points of law have been described as too often treacherous short cuts and their price can be delay, anxiety and expense: see Tilling v. Whiteman [1979] 2 WLR 401 per Lord Wilberforce at page 403 D-G and per Lord Scarman at page 410 C-E. But where it is a trial of so-called preliminary issues of fact, the justification is even harder to see. This is more so, where the facts as found here on these two preliminary issues were not seen to be as they rightly are, the bases for the judgment that was delivered and the answers to the prayers sought by the respondent. For ourselves we have read the evidence that was led in the earlier action on these preliminary issues and have thought that it was sufficient to enable the whole action to proceed to a conclusion. This must be the reason why eventually after a delay and some anxiety, when t