JUDGMENT

Lee Hun Hoe CJ (Borneo):

This is the second time that this appeal came before this Court. It was actually heard on 9 June 1988 before me, Sulaiman SCJ and Seah SCJ. Judgment was reserved. But before judgment could be delivered certain events took place resulting in the rehearing of the appeal pursuant to s. 42 of the Courts of Judicature Act 1964.

The respondents who were plaintiffs in Kota Kinabalu High Court Civil Suit No. K. 486 of 1983 sued Syarikat Chemas Pemborong Sdn. Bhd. (1st defendant), Chu Yun (2nd defendant), Yap My Chue (f) (3rd defendant), Syarikat Pemborong Maju Satu Sdn. Bhd. (4th defendant), Ho Yun Kiong (5th defendant) and Hing Nyuk Ching (6th defendant). On 24 January 1985 it was adjudged that Chu Yun do pay the plaintiffs, QBE Supreme Insurance Bhd. the sum of RM120,266.35 with interest at the rate of 12% per annum from 14 January 1983, statutory interest at 8% per annum from the date of judgment until payment and costs of RM225. The balance sum of RM32,550.25 together with accruing interest and costs remained unsatisfied. On 17 May 1985 a prohibitory order was obtained against Chu Yun in respect of:

(i) 1/16 undivided share of Lease No. 077508288 (not relevant to the appeal);

(ii) 1/20 undivided share of Lease No. 077516155;

(iii) 1/42 undivided share of Lease No. 077508242.

(These are subject matters of the appeal)

The prohibitory order was registered against Leases Nos. 077516155. It was renewed on 1 October 1985.

On 25 September 1985 solicitors for Chu Yun formally notified the plaintiffs' solicitors that "our client has no more interest in the properties concerned. The said properties have been sold for more than ten (10) years which documentations are handled by Messrs. Lo & Co. We suggest that you liaise with Messrs. Peters Lo & Co. for more details."

On 15 November 1985 the three appellants took out originating motion against the respondents QBE Supreme Insurance Bhd. applying for leave to intervene in civil suit no. K.486 of 1983 and for the prohibitory order to be set aside on the ground that Chu Yun has no saleable interest in the land comprised in Sandakan Town Leases Nos. 077516155 and 077508242. The application was supported by the affidavits of all three appellants. After hearing the submission of both parties the learned Judge dismissed with costs the application to set aside the prohibitory order and all subsequent proceedings and orders for sale. The appellants were dissatisfied with the decision and have appealed to this Court against the decision.

The documentary evidence filed by the appellants in the Court below appear to establish the following:

(i) On 17 February 1970 the 1st appellant entered into a sale and purchase agreement to buy one unit of flat to be erected by Chu Yun and another which flat is now known as 1/20 undivided share in Sandakan Town Lease No. 077516155;

(ii) On 10 October 1970 the 2nd and the 3rd appellants entered into a sale and purchase agreement to buy one unit of flat to be erected by Chu Yun and another which flat is now known as 1/42 undivided share in Sandakan Town Lease No. 077508242;

(iii) That the full purchase price of the said flats had been paid to and received by Chu Yun some 15 years ago;

(iv) That the appellants had entered into and are now in possession of the said flats after they had been completed some 15 years ago;

(v) That a memorandum of transfer in the statutory form was executed by the vendors and the purchaser in Lease No. 077516155 in respect of the 2/20 undivided share;

(vi) That Chu Yun is the registered owner of (a) 1/20 undivided share in Sandakan Town Lease No. 077516155 and (b) 1/42 undivided share in Sandakan Town Lease No. 077508242 on 17 May 1985.

The position is clear. Chu Yun was and is still the registered owner of (a) 1/20 undivided share in Lease No. 077516155 and (b) 1/42 undivided share in Lease No. 077508242 albeit he had sold his interest in these two parcels of land to the appellants in 1970, had received ful