PERSIDANGAN MAHKAMAH
PERSEKUTUAN MALAYSIA
DI PUTRAJAYA
MAHKAMAH PERSEKUTUAN
PERMOHONAN SIVIL NO.
08-32-1996(W)
ANTARA
MOHD.
LATIFF BIN SHAH MOHD.
Setiausaha
Kelab Raintree Kuala Lumpur …
RESPONDEN
(Sebagai
Pegawai Berdaftar Kelab)
PERMOHONAN SIVIL NO.
08-34-1996(W)
ANTARA
TENGKU ABDULLAH IBNI
SULTAN ABU BAKAR … PEMOHON/PERAYU
& 8 LAGI
DAN
& 2 LAGI (Mendakwa bagi pihak mereka sendiri dan
kesemua ahli kelab
Raintree Kuala Lumpur
yang lain kecuali
Responden-Responden
CORAM: ABDUL HAMID MOHAMAD F.C.J.
RAHMAH
HUSSAIN F.C.J.
RICHARD
MALANJUM J.C.A
In this judgment, “Applicants” refer to
the applicants in notice of motion, Enclosure 74(a) in
08-32-1996(W) and applicants in notice of motion, Enclosure 61(a) in 08-34-1996(W).
As this court is only concerned with
the issue of jurisdiction to set aside its own order, it is sufficient merely
to set out the chronology of events leading to these applications.
In 1986, three suits were instituted in
the High Court. On 6 February 1995,
after a full trial, the High Court made various orders. The Applicants appealed to the Court of
Appeal. Their appeals were dismissed on
21 May 1996. The coram of the Court of
Appeal then was Gopal Sri Ram JCA, Ahmad Fairuz bin Dato’ Sheikh Abdul Halim
JCA (as he then was) and Abdul Malek bin Haji Ahmad JCA.
The Applicants then applied to this
court for leave to appeal against the dismissal of those appeals. The applications were heard by Steve Shim
(C.J. Sabah and Borneo), Siti Norma Yaakob and Mohtar Abdullah FCJJ. On 12 April 2001, this court, dismissed the
application for leave to appeal to this court.
The court gave a written judgment reported under the name of Allied
Capital Sdn. Bhd. v. Mohamed Latiff bin Shah Mohd. and another
application (2001) 2 MLJ 305.
On 18 September 2003 the Applicants filed two new notices of motion (Enclosure 74(a) in 08-32-1996(W) and Enclosure 61(a) in 08-34-1996(W) praying for the following orders:
“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; ……….”
Subsequently, the Respondents, on 21 November 2003, filed two notices of motion (Enclosure 76(a) in 08-32-1996(W) and Enclosure 63(a) in 08-34-1996(W)) praying for the applicants motions to be struck off on the following grounds:
“(a) that the application which
the Respondent purport 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 became 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.
(2) the costs of this application be borne by the Respondent and/or
the solicitors for the Respondent; and
(3) such further and/or other reliefs and/or orders as this Honourable Court may deem fit and proper.”
At the hearing we decided to hear the Respondent’s applications first on the jurisdictional issue. But, to avoid confusion, in this judgment, I shall refer to the applicants in original applications as “Applicants”.
What must be stressed is that the
applications before us are first, to set aside the order of this court dated 12
April 2001 and, if they succeed, for this court to rehear their other
applications for leave to appeal against the Court of Appeal judgment on 21 May
1996 to this court. So, they have to
cross the first hurdle first i.e. to set aside the order of this court dated 12
April 2001.
The Applicants admitted that they were
not alleging that this court that made the order of 12 April 2001 was not
properly constituted. Neither do they
allege bias on the part of any of the judges who made the order. The allegation of bias is against Gopal Sri
Ram JCA who was a member of the coram of the Court of Appeal that dismissed
their appeal on 21 May 1996. But, that
is not an issue yet before us. That
will be an issue at the hearing of the applications for leave to appeal and, if
leave is granted, at the hearing of the appeals. At this stage the only issue is whether the order of this court
dated 12 April 2003 should be set aside.
In the course of the submission, the
only ground that learned counsel for the Applicants could come up with was that
the earlier coram of this court had not had the advantage of considering subsequent
decisions of this court and also the courts in England.
Now, let us look at the cases. In Lye Thai Sang & Anor v. Faber
Merlin (M) Sdn. Bhd. & Ors (1986) 1 MLJ 166 (S.C) the applicants
applied by motion for an order that the judgment of the Supreme Court in the
civil appeals, in which they were respondents, be reviewed.
The court held:
“Where,
therefore, a final decision has been delivered, an appeal is in effect heard and
disposed of. In other words, it is
brought to a final conclusion. And that
being the case, the Supreme Court has no power to re-open, re-hear and
re-examine its decision for whatever purpose.
The only exception where there can be a re-hearing is only
to the extent provided by section 42, in particular sub-section (3) of section
42. The other exception is as provided
under section 44 sub-section (3) to the effect that every order such as that
envisaged in sub-section (1) of section 44 may be discharged or varied by the
full Court.”
The next case is Chia Yan Tek &
Anor v Ng Swee Kiat & Anor (2001) 4 CLJ 61. The judgment in that case was delivered on 10 August 2001. In that case, the judgment of this court
allowing the appeal from the Court of Appeal was pronounced by the deputy
registrar on 22 December 2000. But, as
on that day, out of the three judges who heard the appeal, two of them had
retired, leaving only one. This court
held that as the effective date of the judgment was the date of its
pronouncement in open court i.e. 22 December 2000 and on that day only one out
of the three judges who heard the appeal was still in service (the other two
having retired earlier), on the date of the pronouncement of the judgment, the
court was not properly constituted. So,
the application to set aside the order of 22 December 2000 was allowed.
The next case is MGG Pillai v Tan
Sri Vincent Tan Chee Yioun (2002) 2 MLJ 673. The judgment was delivered on 16 May 2002.
In that case, this court heard the appeal on 12 and 13 January 1998 and
judgment was reserved. On 12 July 2000,
the judgment of the court by Eusoff Chin, the then Chief Justice and also the
presiding judge, was read out by the senior assistant registrar. At the time of the delivery of the judgment,
Chong Siew Fai CJ (Sabah & Sarawak) had retired from the bench on 2 July 2000. Both he and Wan Adnan, the then Chief Judge
(Malaya), the other member of the panel, had intimated their approval to the
written judgment of the Chief Justice.
The applicant applied by way of motion to set aside the judgment on the
grounds that: (i) the judgment was invalid as it was delivered by an improperly
constituted court; and (ii) the judgment was tainted by apparent bias on the
part of the presiding judge. The
respondent responded by filing a motion to strike out the applicant’s motion on
grounds of irregularities. (I am
omitting reference to the “third motion” filed by the applicant as it is not
relevant to the present discussion).
This court, by a majority, allowed the
applicant’s application and dismissed the respondent’s application. In other words, the judgment of this court
pronounced on 12 July 2000 was set aside.
Both Siti Norma Yaakob FCJ and Haidar Mohd. Noor FCJ (as he then was)
held that as the effective date of the judgment was the date of its
pronouncement in open. The court
followed Chia Yan Tek (supra),
and held that since there were only two judges remaining on that day,
and as no consent was given by the parties to the proceedings pursuant to the
requirement of the preamended section 78 of the Courts of Judicature Act 1964
(“CJA 1964”) which was the law applicable in that case, for the proceedings to
be continued by the remaining two judges, the judgment “was ineffective and
invalid as the court was not properly constituted,” per Siti Norma Yaakob FCJ
at page 698 of the law report.
Steve Shim C.J. (Sabah and Sarawak)
dissented on this point. He was of the
view that the judgment was “not vitiated”, on two grounds. First, he was of the view that “the need for
consent of the parties (as provided by section 78 CJA 1964 – added) is confined
to the continued hearing as opposed to the concluded hearing of the proceeding
before the remaining panel of judges.”
The learned Chief Judge (Sabah and Sarawak) went on to say:
“Thus, on a
proper construction, it must necessarily mean that where the actual hearing of
a case is still continuing at the time of the inability of any judge, either
through illness or any other cause, consent of the parties is required before
the said hearing can be continued or proceeded with. Here, however, the hearing of the case had already been concluded
or completed pending judgment or reserved judgment at the time of the said
inability, no consent is needed.”
Secondly, the learned Chief Judge was of the view that section 78 was a “contingency provision”:
“It provides
for a contingency to wit, inability of a judge, through illness or any other
cause, to attend the proceedings, or otherwise exercise his judicial functions.
It comes into play only when the
contingency occurs …….
In the
instant case, the contingency occurs on 4 July 2000 when Chong Siew Fai (Sabah
and Sarawak) retired. At the time, the
new s 78 applied. The right to consent
provided under the old s 78 did not apply. It is not disputed that at the time when
Chong Siew Fai CJ (Sabah and Sarawak) retired, there were two other panel members still in office, ie
Eusoff Chin Chief Justice and Wan Adnan CJ (Malaya). That being so, the amended s 78(1) is clearly applicable because it specifically provides
that the reserved judgment shall be given by the remaining judges not being
less than two. Here, the reserved judgment
was delivered on 12 July 2000 when both of the remaining judges were still in
office. I therefore find no merit in
the second approach propagated by counsel for the applicant. For
the reasons stated, I hold the view that the Federal Court was properly
constituted at the time the reserved judgment was delivered. That judgment is therefore not vitiated.”
The
Applicants in the instant applications relied on the judgment of Steve Shim,
Chief Judge (Sabah and Sarawak) in which while agreeing with Lye Thai Sang
& Anor, he said:
“Quite clearly, that observation was
made in the context of the proper construction to be placed
on s 69(4) of the CJA. But that cannot
be read to mean that the Supreme Court had been deprived of its inherent
jurisdiction derived under the common law by virtue of s 3(1)(a) of the Civil
Law Act 1956, read with art 121(2) of the Constitution. This is the common law exception quite apart
from the statutory exceptions referred to in Lye Thai Sang. In any event, the Federal Court has now been
conferred with inherent power under r 137 of the Rules of the Federal Court
1995. This had also been reiterated
very recently by the Federal Court
in the case of Chia
Yan Tek & Anor v Ng Swee Kiat & Anor [2001] 4 MLJ 1 wherein Mohamed
Dzaiddin Chief Justice said at p 10:
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.
For the reasons stated, I hold the view
that the Federal Court does have the inherent jurisdiction and power which can
be invoked in limited circumstances to reopen, rehear and reexamine its
previous judgment, decision or order which has been obtained by fraud or
suppression of material evidence so as to prevent injustice or an abuse of the
process of the court. In the
circumstances, the preliminary objection raised by counsel for the respondent
fails.”
With respect, I do not think that section 3(1)(a) of the Civil Law Act 1956 is applicable. That section begins with the words: “Save so far as other provision has been made or may hereafter be made by any written law in Malaysia …….” The jurisdiction of this court is not only provided by “written law” but by the Constitution itself – see Articles 128 and 130. More detailed provisions regarding the jurisdiction of this court are to be found in the CJA 1964 and the Rules of the Federal Court 1995. In the circumstances, we do not think that we can invoke the provision of section 3(1)(a) of the Civil Law Act 1956 to generally introduce whatever additional jurisdictions the common law gives to the courts in England.
However, I agree that rule 137 does give the inherent powers to this court for the purposes stated therein. I also agree with the statement of Mohamed Dzaiddin, C.J. in Chia Yan Tek (supra) quoted by the learned Chief Judge (Sabah and Sarawak), as a general statement. However, I am of the view that that statement should be read in the light of the facts of that case. In other words, the inherent powers that this court possesses is limited to situations where the order is a nullity either because the court making the order was not properly constituted as in Chia Yang Tek (supra) or M.G.G. Pillai (supra) (majority judgment), or on ground of illegality or lack of jurisdiction, as in Muniandy a/l Thamba & Anor v. D.C. Bank & Anor (1996) 1 MLJ 374 (F.C.) and Badiaddin bin Mohd. Mohidin & Anor v Arab Malaysian Finance Berhad (1998) 1 CLJ 393 (F.C). To take it too far would defeat the concept of finality of a judgment and will open flood-gates as has started to happen, even with the restrictive views that the court has taken so far. The instant application is one such example.
Perhaps I should make brief reference to Muniandy (supra), Badiaddin (supra) and Sri Kelang Kota – Rakan Engineering JV Sdn. Bhd. v. Arab Malaysian Prima Realty Sdn. Bhd. (2003) 3 MLJ 257, cited by learned counsel for the Applicants.
Muniandy (supra) merely says that the court has inherent power to set aside an order which is a nullity. There is not even a suggestion that the order of this court dated 12 April 2001 is a nullity.
So is Badiaddin (supra), where, Mohd. Azmi FCJ said that one special exception to the general rule that a High Court cannot set aside a final order regularly obtained form another High Court of concurrent jurisdiction is that where the final judgment of the high Court could be proved to be null and void on ground of illegality or lack of jurisdiction.
Sri-Kalangkota–Rakan Engineering JV Sdn. Bhd (supra) concerns the granting of leave to appeal to this court. This court having granted leave, heard the appeal. The appeal was decided on its merits. Having decided that there were no merits in the appeal, at the end of the judgment Abdul Malek Ahmad FCJ, delivering the judgment of the court said:
“Despite that, in the light of the authorities, we would hold that we are not prevented from reconsidering the issue of leave again. Coming back to the questions formulated for determination by this court, it is our view that the questions merely relate to the set of facts in the appeal and the application of the settled principles of law as it plain from the judgment of the Court of Appeal. As such, they do not come within the ambit of s 96(a) of the CJA and, therefore, there is no necessity or purpose for this court to answer the questions posed regardless of the fact that leave to appeal has in fact been granted at an earlier hearing.”
Similar situation also arose in Moscow Narodny Bank Ltd. v Ngan Chin Wen (2004) 2 CLJ 241. Abdul Malek Ahmad FCJ (who also wrote the judgment of the court in Sri-Kalangkota–Rakan (supra)), who was himself a member of the panel that granted leave to appeal, having heard the appeal on merits, in his judgment observed:
“Upon full analysis at the
hearing of this appeal I now realise that may be the question should not have
been allowed as in deciding the question in the Ernest Cheong appeal, this court had to decide when is the date the
interest becomes due.”
But, that statement is confined to such a situation i.e. where having heard the full argument on the merits of the appeal, it became clear to the court, that there was really no question of general principle within the meaning of section 96(a) CJA 1964. In such a situation the court may decline to answer the question.
This is not such a case. In these applications, this court had
refused leave. These applications are
to set aside that order refusing leave.
If at all it may succeed, it is only on the ground that that order is a
nullity on the ground of illegality or lack of jurisdiction or because the court
making the order was not properly constituted.
In the instant applications, there is
no allegation that the panel of this court that made the order of 12 April 2001
was wrongly constituted or that the order was a nullity on ground of illegality
or lack of jurisdiction. The only
ground put forward is that this court when hearing the application for leave
and making the order of 12 April 2001 did not have the benefit of considering subsequent
decisions, including, the House of Lords decision in R v. Bow Street
Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No.2) (1999)
1 All. ER 577.
First, it is not correct to say that this court when deciding the application for leave to appeal did not consider Pinnochet Ngarte case. That can be seen from the judgment of this court – see (2001) 2 MLJ 305.
Secondly, the principle of that case is
not relevant at this first stage in these applications. In that case, the allegation of bias was
against one of the judges that made the order sought to be set aside. In the instant applications, there is no
such allegation against any of the judges of this court that made the order of
12 April 2001. The allegation of bias
is against one of the judges of the Court of Appeal. That had been considered by this court when it heard the motion
for leave culminating in the order of 12 April 2001. Before us, we have not reached that stage yet. We are only considering whether that order
of 12 April 2001 should be set aside.
Any allegation of bias will only be relevant if it is directed against
at least one of the judges who made the order.
There is no such allegation against any of them.
Thirdly, it is trite law that a matter
is decided in accordance with the law then in force. Just because the court subsequently takes a different view, or
the law has been amended subsequently does not give the right to a party who
had lost the case earlier to re-litigate the case. Otherwise there will be no finality to any judgment, whatmore of
the apex court.
The Applicants have clearly failed to
satisfy this court that the order of 12 April 2004 is a nullity because of
illegality or for want of jurisdiction or that it was made by a court which was
not properly constituted that warrants the order to be set aside. The Applicants are actually asking this
court to re-open, re-hear and re-examine its decision which this court clearly
has no jurisdiction to do.
For these reasons, the Respondents’
applications (Enclosure 76(a) in 08-32-1996(W) and Enclosure 63(a) in
08-34-1996(W) should be allowed with costs and the deposit is hereby ordered to
be paid to be refunded to the Respondents.
September
2004.
(DATO’ ABDUL
HAMID BIN HAJI MOHAMAD)
Hakim Mahkamah Persekutuan
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.