DALAM
MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANGKUASA
RAYUAN)
RAYUAN SIVIL NO.: 08-32-1996 (W)
ANTARA
DAN
MOHD LATIF
BIN SHAH MOHD
Kelab
Raintree Kuala Lumpur
(Disaman
sebagai pegawai berdaftar Kelab) … RESPONDEN
&
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANGKUASA RAYUAN)
RAYUAN
SIVIL NO.: 08-34-1996 (W)
ANTARA
1. TENGKU
ABDULLAH IBNI SULTAN ABU BAKAR
2. YUSOF
BIN ABU BAKAR
3. JOHN
LOW NYAP HENG
4. YEOH
CHONG SWEE
5. LEONARD
THAM
6. TENGKU
AZLAN
7. ABDUL
KADIR KASSIM … PEMOHON-
8. CLIFFORD TAN PEMOHON /
9. LT.
COL. ZARAZILLAH PERAYU-PERAYU
DAN
1. MOHD
LATIF BIN SHAH MOHD
2. MOHD
ALI BIN MOHD DEWAL
3. DAVID
SIEW WAI KEONG
(Mendakwa
bagi pihak mereka sendiri dan
semua
ahli Kelab Raintree Kuala Lumpur … RESPONDEN-
yang
lain kecuali Perayu-Perayu) RESPONDEN
[Dalam
Perkara Mahkamah Rayuan Di Kuala Lumpur
(Bidangkuasa
Rayuan)
Rayuan Sivil
No. W-02-109-1995]
Antara
1. Tengku
Abdullah Ibni Sultan Abu Bakar
2. Yusof
Bin Abu Bakar
3. John
Low Nyap Heng
4. Yeoh
Chong Swee
5. Leonard
Tham
6. Tengku
Azlan
7. Abdul
Kadir Kassim
8. Clifford Tan … Pemohon-Pemohon/
9. Lt. Col. Zarazillah Perayu-Perayu
Dan
1. Mohd
Latif Bin Shah Mohd
2. Mohd
Ali Bin Mohd Dewal
3. David
Siew Wai Keong
(Mendakwa
bagi pihak mereka sendiri dan
semua
ahli Kelab Raintree Kuala Lumpur … Responden-
yang lain kecuali Perayu-Perayu) Responden]
[Dalam Perkara
Mahkamah Tinggi Kuala Lumpur
(Bahagian Dagang)
Guaman No.
C22-204-1986]
Antara
1. Mohd Latif
Bin Shah Mohd
2. Mohd Ali
Bin Mohd Dewal
3. David Siew
Wai Keong
(Mendakwa
bagi pihak mereka sendiri dan
semua ahli
Kelab Raintree Kuala Lumpur
yang lain
kecuali Perayu-Perayu) … Plaintif-Plaintif
Dan
1. Tengku
Abdullah Ibni Sultan Abu Bakar
2. Yusof Bin
Abu Bakar
3. John Low
Nyap Heng
4. Yeoh Chong
Swee
5. Leonard
Tham
6. Tengku
Azlan
7. Abdul Kadir
Kassim
8. Clifford
Tan
9. Lt. Col.
Zarazillah … Defendan-Defendan]
CORAM: Abdul Hamid Mohamad F.C.J.
Rahmah
Hussain F.C.J.
Richard
Malanjum J.C.A.
JUDGMENT OF
THE COURT
1. There are before this Court two
applications of similar nature (Enclosure 74 (a) and Enclosure 61 (a)) (the
applications proper) filed on 18.09.2003 by the Applicants pursuant to Rule 137
of the Federal Court Rules 1995 in relation to two Federal Court Civil Appeals
Nos. 08-32-1996 (W) and 08-34-1996 (W) respectively.
2. The applications proper were filed
following the dismissal by this Court on 12.04.2001 the application by the
Applicants for leave to appeal against the decisions of the Court of Appeal rendered
on 21.05.1996.
3. And the appeals to the Court of Appeal came
about after the High Court made several orders on 06.02.1995 after a full trial
in respect of the three suits filed thereat in 1986.
4. In the applications proper the Applicants
seek for the following orders, inter alia:
“(1) the Order
of the Federal Court made on 12th April 2001 dismissing the
Appellant/Applicant’s earlier Notice of Motion be set aside;
(2) the earlier Notice of Motion be reheard;
(3) the
Appellant/Applicant be given leave to appeal to the Federal Court against the
whole of the Order of the Court of Appeal dated 21st May 1996;
(4) the
Appellant/Applicant be given leave to file and serve the Notice of Appeal
within 14 days from the date of the Order giving leave;
(5) all
execution proceedings relating to the Order of the Court of Appeal dated 21st
May 1996 and the High Court dated 6th February 1995 be stayed until
final decision of the Federal Court;
(6) the costs
of this application be costs in the said appeal.”
5. However, pending the hearing of the
applications proper the Respondents filed two Notices of Motion (Enclosure 76(a)
in 08-32-1996 (W) and Enclosure 63(a) in 08-34-1996 (W) (subsidiary
applications) praying for an order that the applications proper be struck off
on the following grounds, inter alia:
“(a) that the
application which the Respondent purported to make to this Court by the said
Notice of Motion is an abuse of process;
(b) that this
Honourable Court has no jurisdiction or power to set aside this order given on
12.4.2001 (dismissing the Respondent application for leave to appeal against
the decision of the Court of Appeal made on 21.5.1996 in the said matter)
or to re-hear the said application;
(c) that the decision
of the Court of Appeal become final and was no longer subject to any further
appeal when this Honourable Court dismissed the Respondent’s said application
for leave to appeal on 12.4.2001;
(d) that no
circumstances exist to warrant the exercise by this Honourable Court of its
inherent power or discretion to review its decision given on 12.4.2001 and to
re-hear the Respondent’s said application for leave to appeal against the
decision of the Court of Appeal.”
6. At the outset of the hearing of the
applications proper it was agreed that the subsidiary applications should be heard
first and the jurisdictional issue determined.
7. Thus the primary consideration in this
Judgment is whether this Court has the jurisdiction to hear the applications proper
bearing in mind the grounds raised in the subsidiary applications.
8. In the event that the jurisdictional
issue is determined in the affirmative for the Applicants, the next stage will
be for the applications proper to be heard on their merits.
9. In retrospect it would have been more
advantageous in term of time and convenience if the applications proper and the
subsidiary applications were heard together.
10. Rule 137 of the Federal Court Rules 1995
reads:
‘For
the removal of doubt it is hereby declared that nothing in these Rules shall be
deemed to limit or affect the inherent powers of the court to hear any
application or to make any order as may be necessary to prevent injustice or to
prevent an abuse of the process of the court.’.
11. It is obvious that although the Rule is
declaratory of the inherent common law powers of the court to prevent injustice
or to prevent an abuse of the process of the court such move may have been necessary
in view of Article 121(2) of the Federal Constitution which reads:
“2) There
shall be a court which shall be known as the Mahkamah Perseketuan (Federal
Court) and shall have its principle registry in Kuala Lumpur and the Federal
Court shall have the following jurisdiction, that is to say-
o
(a) ………….;.
o
(b) ………..; and
o
(c) such other jurisdiction as may be conferred
by or under federal law.”
12. Accordingly, as the law presently stands
Rule 137 is the federal law that gives this Court the inherent powers and hence
jurisdiction to hear matters such as the applications proper.
13. It is therefore not correct to say that
this Court has no jurisdiction to entertain any application which seeks for an
order to review its earlier decision. There are decisions of this Court made in
the exercise of its inherent powers as stipulated in Rule 137. (See: Chia Yan Tek & Anor v Ng Swee Kiat
& Anor [2001] 4 MLJ 1; MGG
Pillai v Tan Sri Dato’ Vincent Tan Chee Yioun [2002] 2 MLJ 673).
14. In Chia Yan
Tek & Anor (supra) at p.10 Mohd. Dzaiddin CJ declared:
“Rule
137 of the Rules clearly gives us the inherent powers to hear any application
or to make any order as may be necessary to prevent injustice. The issue of
reopening or reviewing our own decision in the instant case therefore does not
arise.”
15. In passing we are conscious of the on-going
debate on the issue of whether Article 121(1), (1B) and (3) of the Federal
Constitution have done away with the common law inherent powers and jurisdiction
of the courts in this country. (See: Megat
Najmuddin Bin Dato Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd) [2002] 1 MLJ
385; MGG Pillai v Tan Sri Dato’ Vincent Tan Chee Yioun [supra]; cf. Filotek
Trading Sdn Bhd v Buildingcon-Cimaco Concrete Sdn Bhd [1999] 4 MLJ 268).
But we need not have to dwell on that
point in this Judgment.
16. In addition we are of the view that Rule
137 cannot be construed as to limit the jurisdiction of this Court only to
situations where its earlier decision is a nullity either because the Court
making it was not properly constituted or being illegal or lack of jurisdiction.
In other words the exercise of jurisdiction should not be confined to the
standing of the coram that rendered the impugned decision. Surely the phrase ‘to hear any application or to make any order
as may be necessary to prevent injustice or to prevent an abuse of the process
of the court’ is wide enough to encompass circumstances beyond those stated
situations. To limit therefore the application of Rule 137 to only certain situations
would tantamount to stifling the wide jurisdiction envisaged therein. The foundation of the jurisdiction of this
Court under Rule 137 is to ‘prevent
injustice or to prevent an abuse of the process of the court’. (See: Megat Najmuddin Bin Dato Seri (Dr) Megat
Khas (supra)).
17. No doubt the judicial pronouncements thus far
on the said Rule appear to confine mainly on ‘coram failure’ situation hence ruling
as being nullity the earlier decisions in issue. But these authorities in our
view are merely instances on the application of the Rule. They should not be
read as having set down the parameters on the jurisdiction of this Court in the
context of the said Rule.
18. In the subsidiary applications the grounds relied
upon for asking the applications proper to be struck off are that the decision
of the Court of Appeal had become final after the refusal of leave, that there was
no longer any right of appeal against the decision of the Court of Appeal once
the application for leave had been dismissed and that upon dismissal of the
application for leave this Court is functus officio.
19. With respect there is nothing in Rule 137
indicating that such grounds are sufficient for the applications proper to be
dismissed in limine without having to hear the merits.
20. Ultimately when invoking Rule 137 an applicant in our
view has the onerous task of establishing to the satisfaction of this Court that
on the facts, circumstances and the law as applied in an impugned decision in
issue, it occasioned injustice or abuse of process which need to be rectified
or prevented. Hence we would think that it is on a case by case basis. And we
hasten to add that we do not think it was the intention of the Legislature when
promulgating Rule 137 that every decision of this Court is subject to review.
To do so would be anathema to the concept of finality in litigation.
21. Just recently this Court declined
jurisdiction to hear an application made under Rule 137. (See: Adorna Properties Sdn. Bhd. v Kobchai
Sosthikul (Rayuan Sivil No. 02-14-1997 (P)). But in that case it was
obvious that that was the second time the applicant applied under Rule 137 in
respect of the same judgment of this Court albeit on a different ground.
Moreover it was not shown and even if it had been, the Court was not convinced that
the application of the law in the impugned judgment had occasioned grave
injustice. There this Court was also concerned with the attitude of the
applicant venting his complaints against the impugned judgment by way of
instalment in addition to the fact that there was a considerable lapse of time between
the first and second applications.
22. The present applications proper however are
the first attempt by the Applicants to set aside the 12.04.2001 decision of this
Court. Further the impugned decision is only on refusal of leave to appeal and
not a substantive judgment. And views have been expressed in substantive
judgments of this Court where in retrospect having heard the merits of the
appeal proper it was felt that the grant of leave to appeal should not have
been made in the first place. Thus, if the grant of leave to appeal could be
subsequently doubted there is no reason why the converse should not be permitted.
And one way is the application of Rule 137.
(See: Sri Kelangkota-Rakan Engineering JV Sdn
Bhd & Anor v Arab-Malaysian Prima Realty Sdn Bhd & Ors [2003] 3 MLJ 257;
Moscow Narodny Bank Ltd. v Ngan Chin Wen (2004) 2 CLJ 241).
23. Thus, for the foregoing reasons we rule
that this Court has jurisdiction to hear the merits of the applications proper.
The subsidiary applications are therefore dismissed with costs. And we hereby
order that the applications proper be fixed for hearing accordingly.
Date: 3rd September 2004
signed
(DATIN PADUKA RAHMAH BT. HUSSAIN)
Hakim
Mahkamah Persekutuan Malaysia
signed
(DATUK RICHARD MALANJUM)
Hakim
Mahkamah Rayuan Malaysia
Bagi Pihak Pemohon: Dato’
Pathmanathan
Mr.
Murali B. Pillai
Mr.
Sreether Sundaram
Tetuan
Murali B. Pillai & Assoc.
Tetuan
Gideon Tan Razali Zaini
Bagi Pihak Responden: Raja
Aziz Addruse
M/s
Liza Chan Sow Keng
Hema
Markandan
Tetuan
Liza Chan & Co.