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|Insas Berhad & Anor. v Ayer Molek Rubber Company Berhad & Ors 1995 [FC]|
|Saturday, 12 August 1995 12:00am|
INSAS BERHAD & ANOR. V. AYER MOLEK RUBBER COMPANY BERHAD & ORS.
Mohd.Eusoff b. Chin CJ (delivering judgement of the Court): On 1 August 1995 we granted the applicants Insas Berhad and Megapolitan Nominees Sdn. Bhd. leave to appeal to the Federal Court against the order of the Court of Appeal given on 26 July 1995 which granted an interlocutory injunction to the respondents restraining the applicants from exercising or enjoying rights including disposing off the shares whether directly or indirectly pending the disposing of an appeal before the Court of Appeal. We also granted a stay of execution of the order of the Court of Appeal and gave the applicants two weeks to file a notice of appeal to the Federal Court.
The factual background of the case is as follows:
(1) On 10 April 1995, the plaintiffs (applicants) applied for and was granted an ex-parte mandatory injunction by the High Court. This injunction compelled the 11th defendant who is the share registrar of Ayer Molek Rubber Company Berhad (the company) to process the plaintiffs’ 540,000 shares within 2 working days and the managing director and secretaries of the company were ordered to issue within 2 working days 5 new share certificates in the name of the plaintiffs, and the other defendants were restrained from interfering, interrupting or causing any hindrance in any manner whatsoever in the registration of the shares.
(2) On 11 April 1995 the injunction order was served on most of the defendants.
(3) On 12 April 1995 the defendants filed an ex-parte summons-in-chambers to set aside the ex-parte injunction granted.
(4) On 13 April 1995 this ex-parte summons-in-chambers was made inter-partes and it was served on the plaintiffs’ solicitors at 12.00 noon. It was heard by the learned Judge at 2.00 p.m. on the same day.
The plaintiffs’ Counsel requested for an adjournment to enable them sufficient time to file an affidavit-in-reply because the defendants’ affidavit had been served on the plaintiffs’ solicitors only at 12.00 noon that day. The Judge after hearing arguments from both parties, adjourned the inter-partes hearing to 27 April 1995 for him to make a decision, as that was the earliest date available, whereupon the defendants’ solicitors applied for a stay of the mandatory injunction pending the hearing of their application on 27 April 1995, but the Judge refused to grant the stay.
(5) On 14 April 1995 the defendants made an application to the learned President of the Court of Appeal for a stay of the High Court order pending the hearing of their motion for stay in the Court of Appeal. The learned President did not grant the stay.
(6) Meanwhile on the same day, (14 April 1995) the shares were registered into the names of the plaintiffs in compliance with the order of, the High Court.
(7) On 18 April 1995, the defendants filed a notice of appeal to the Court of Appeal against the decision of the learned Judge of the High Court adjourning the hearing of the defendants’ application from 13 April 1995 to 27 April 1995 (hereinafter, ‘the appeal’). On the same day the defendants also filed a motion in the Court of Appeal for a stay of the ex-parte injunction given by the High Court on 10 April 1995, pending the disposal of their appeal to the Court of Appeal.
(8) On 21 April 1995, the High Court informed the parties that the hearing fixed for 27 April 1995, had to be adjourned to 11 May 1995 because the High Courts were shifting office to another building at Denmark House, in Jalan Ampang.
(9) On 11 May 1995 the defendants’ Counsel, in open Court, withdrew the defendants’ application to set aside the ex-parte mandatory injunction granted on 10 April 1995. The learned High Court Judge allowed the withdrawal of the application with no order as to costs. An application by the defendants to strike out the plaintiffs’ indorsed writ was adjourned with the consent of parties to be heard together with the striking out of the statement of claim on 22 June 1995. This was adjourned to 7 August 1995 at the request of the plaintiffs.
When the respondents’ application for the stay of the ex-parte mandatory injunction made by the High Court on 10 April 1995, came up for hearing before the Court of Appeal on 24 July 1995, the learned Counsel for the respondents, Mr. S.C. Loh withdrew the respondents’ application for the stay of ex-parte mandatory injunction. We asked Mr. S.C. Loh why did he withdraw the respondents’ application to set aside the ex-parte injunction order granted on 10 April 1995. He told us it was because the ex-parte order had been executed and the ex-parte order had lapsed under the Rules of the High Court 1980, 2 weeks after the exparte order was made. We inquired whether had he not withdrawn the respondents’ application to set aside the ex-parte order, the learned High Court Judge could have heard it on 11 May 1995, and might have reversed his ex-parte injunction order and returned the parties’ positions to status quo. Now, that the respondents had withdrawn their application to set aside the ex-parte order, it is deemed that the respondents conceded that the High Court had rightly granted the ex-parte order. How could the respondent then proceed with their appeal against the order of the learned High Court Judge made on 13 April 1995, adjourning the case from 13 April 1995 to 27 April 1995 since the respondent had conceded the ex-parte order was correctly made?. The foundation and substratum of the appeal had collapsed. As we know it a Court has power to adjourn a hearing, as is given to it under O. 35 r. 3 of the Rules of the High Court, 1980. Mr. S.C. Loh did not produce any authority to show us that a party may appeal against the order of a Judge to adjourn the hearing of any matter before him. We ourselves are not aware of any case in which an appeal had been allowed to be made against an order of adjournment for decision or further arguments of a case by even a Magistrate. If this is allowed an appeal will be filed for every adjournment made by a Magistrate, Sessions Court Judge, High Court Judge or even by Court of Appeal, and the Courts will be flooded with appeals on adjournments. The Court of Appeal in this case itself had done the same thing in this appeal. It had adjourned the hearing of the application for a fresh injunction twice, once from 24 July 1995 to 25 July 1995 and then again to 26 July 1995. Can these adjournments then be the subject of appeals to the Federal Court?. At the most, frequent adjournments of a case for no good reason may be made as one of the grounds in an appeal proper. We are doubtful if an appeal can be sustained against an order of adjournment by a Judge. We made these inquiries because we wanted to find out if there are good grounds upon which we may decide whether or not to allow the applicants’ application for leave to appeal to the Federal Court from the order of the Court of Appeal granting an oral application by the respondents’ learned Counsel for an interim injunction to restrain the applicants from enjoying or exercising any rights including disposing of the shares whether directly or indirectly pending the disposal of the respondents’ appeal before the Court of Appeal against the decision of the learned High Court Judge made on 13 April 1995 adjourning the hearing from 13 April 1995 to 27 April 1995.
The oral application for the interim injunction by Mr. S.C. Loh on 24 July 1995 was made after he had withdrawn the motion to stay the ex-parte mandatory injunction before the Court of Appeal. From the judgment of the Court of Appeal a copy of which was tendered to us by Mr. S.C. Loh at the start of the hearing before us on 1 August 1995, we note that no undertaking as to damages were given to the Court of Appeal by either Mr. S.C. Loh as solicitor or by the respondent when applying for the fresh injunction. Mr. S.C. Loh told us that the shares concerned had been seized by the police for purpose of police investigation. We asked him if that fact was conveyed to the Judges of the Court of Appeal when he made the oral application before them for the interim injunction. Mr. S.C. Loh confirmed that he had done so. If that was the case where was the urgent need for the interim injunction to be issued by the Court of Appeal.
The learned Counsel for the applicant, Dato’ V.K. Lingam drew our attention to s. 43 of the Court of Judicature Act, 1964 and r. 14 of the Rules of the Court of Appeal, 1994 which stated that whenever an application can be made to either the High Court or to the Court of Appeal it shall be made in the first instance to the High Court, and r. 27 of the Rules of the Court of Appeal requires that all applications to the Court of Appeal must be made by motion substantially in Form 4 of the First Schedule with affidavits filed and served on all parties and the notice of motion shall be served on the parties concerned not less than 7 days before the return day. Mr. S.C. Loh contended that the Court of Appeal was acting under their inherent jurisdiction and under s. 44 of the Court of Judicature Act, 1964. We do not wish to deal with the merits of the intended appeal here by the applicant, but we find good reasons that s. 44 of the Court of Judicature Act 1964, does not apply here. Further, the Court of Appeal only exercises appellate jurisdiction and hear appeals from orders and judgments of the Courts below. Therefore it does not deal with original applications. We therefore allowed this application for leave to appeal by the applicants against the interim injunction ordered by the Court of Appeal on 26 July 1995, and ordered that the notice of appeal to the Federal Court be filed within two weeks from 1 August 1995.
As stated earlier, Mr. S.C. Loh had tendered to the Court and to Dato’ V.K. Lingam a copy each of the judgment of the Court of Appeal dated 31 July 1995 written by N.H. Chan, JCA. This is what the judgment states in its opening paragraph:
Since the respondents (appellants in the Court of Appeal) had in the Court of Appeal withdrawn their application for stay of the mandatory injunction, there was no more application left for the Court of Appeal to deal with, and the application should have been dismissed, and the Court of Appeal was thereafter functus officio. We agreed that Mr. S.C. Loh did the right thing because when he withdrew in the High Court his application to set aside the mandatory injunction, it is deemed that he had conceded that the mandatory injunction had been properly made. Consequently his appeal against the learned High Court Judge’s adjourning the case from 13 April 1995 to 27 April 1995 had no leg to stand on. But the Court of Appeal went on to entertain an oral application by Mr. S.C. Loh from the Bar, and to deal with the merits of the case, and granted the application. This is wholly irregular and improper. The respondents’ appeal against the High Court’s adjourning the hearing after hearing arguments from both parties from 13 April 1995 to 27 April 1995, was not even before the Court of Appeal, as it had not been fixed for hearing on that day.
The learned Counsel for the appellants Dato’ V.K. Lingam had strongly objected to the derogatory criticism by the Court of Appeal in its written judgment and to the aspersions cast on the professional conduct of the appellants’ solicitors as they were not only made without jurisdiction but are also wholly and utterly unjustified and unwarranted. He requested that all these remarks and criticism made by the three Judges of the Court of Appeal in their judgment against the High Court Judge, the applicants and their solicitors should be expunged from the judgment.
We scrutinised the record before us to see if there is any evidence which prompted the Court of Appeal Judges to make these derogatory and unwarranted remarks. We find that these remarks had been made suo motu without any basis. We asked Mr. S.C. Loh the learned Counsel for the respondents if he had appeared at all stages of the proceedings. He replied he did. We asked him if he had ever objected to the applicants’ case being heard by the Appellate and Miscellaneous Division of the High Court. He replied he never raised any objection. We further asked him if he had ever raised any objection to the learned High Court Judge, Dato’ Azmel hearing the application, and he replied he did not. We finally asked him whether, in the Court of Appeal, he ever raised any of these objections, and again he replied that he did not do so. He also admitted and confirmed that he never at any stage of the proceedings criticised the conduct of the learned solicitors for the applicants which could cause the three learned Judges of Appeal Court to attack the appellants’ Counsels. Then why should the learned Judges of the Court of Appeal go on a frolic of their own to find fault with the High Court Judge, and criticise the conduct of the applicants’ solicitors in a very disparaging manner. Their own conduct would tend to show that they were themselves biased and taking the side of the respondents against the applicants, the High Court Judge and the applicants’ solicitors.
It appears that the three Judges in the Court of Appeal were not happy because the case was heard by the Appellate and Miscellaneous Division of the High Court, because they felt that it ought to have been heard by the Commercial Division. As far as we are aware, the Appellate and Miscellaneous Division may hear all cases the disposal of which do not involve the calling of witnesses to give oral evidence. However, where a suit is pending in the Commercial Division the hearing of which involves the calling of witnesses for oral evidence, then any application pending the hearing, should be filed in Commercial Division. We do not find any good and sufficient reason as to why the three Judges of the Court of Appeal should launch a scathing attack on the High Court Judge for hearing the case when the learned Counsel for the respondents (defendants) in the first place had not raised any objection to the Judge or the Division proceeding with the case.
The objectionable and wholly offensive remarks made against a Court of law, the plaintiffs and their solicitors and the learned High Court Judge all of whom had had no opportunity to defend themselves in the face of such unwarranted and unjustified criticisms ought to be expunged from the judgment of the Court of Appeal as it has a tendency to bring the whole administration of law and order in the Courts into disrepute. It is judicially recognised that judicial pronouncements should be judicial in nature and not depart from sobriety, moderation, and reserve. It has been said elsewhere that the pen of a Judge should be like the knife of a surgeon which probes into the flesh only as much as is absolutely necessary for the purpose of the case before it. A Judge should neither reward virtue nor chastise vice, and his judgment should not display emotion and intemperance as displayed in the judgment of the Court of Appeal here.
In State of Uttar Pradesh v. Mohd Naim  AIR (SC), 703 at 707 and 708, the Supreme Court of India had ordered the expunction of uncalled for strictures made by Mulla J of the Allahabad High Court against the Indian Police Force. In ordering the expunction of the remarks the Supreme Court observed:
In Singer Sewing Machine v. Jeremiah,  2 MLJ, 56 at 57, the High Court found that both the conduct of the appellant company and that of their solicitors to be wholly reprehensible. On appeal the Federal Court whose decision was reported in the same law journal at page 199, held that the strictures by the High Court on the appellants and their solicitors were unwarranted, and allowed the appeal.
In A.M. Mathur v. Pramod Kumar Gupta & Ors.  2 SCC 533 B.M. Lal J of the Madya Pradesh High Court when dismissing an apparently unsustainable review petition had made certain derogatory remarks against Mr. A.M. Mahtur, a senior advocate and also the ex- Advocate General of the State. The Supreme Court held at pages 538 and 539:
Bhagwati CJ in State of M.P. & Ors. v. Nandlal & Ors.,  4 SCC 566, at 615 in expressing his strong disapproval of the strictures made by the Judge, stated:
We therefore would like to remind Judges that they should refrain from criticising another Court, their brother Judges and lawyers who have no opportunity to correct such injustice caused to them which will have detrimental effect on their characters and professional careers especially in cases like this where there is no evidence or cause to warrant their criticism, and where the Judges of the Court of Appeal have no jurisdiction to hear an oral application when the motion for stay had been withdrawn. They must remember that they are themselves not infallible and should not use the Bench as a forum to pass harsh and disparaging strictures on others. Such conduct may be seen as being malicious, mischievous and irresponsible, and will bring the administration of justice into disrepute. Judges and Magistrates must not only act neutral and fair but be seen to act so. They should not jump into the arena and do battle with the parties lest they may be blinded by the dust of the battle.
Cases need not be multiplied on this cardinal point. However, to highlight this vital principle, we would refer to V. Sujatha v. State of Kerala  Supp. (3) SCC 437 at 448, where the Indian Supreme Court held:
We would therefore expunge the following remarks from the judgment of the Court of Appeal:
In expunging these totally unwarranted and unjustified remarks from the judgment of the Court of Appeal written on 31 July 1995, we must place on record of our disappointment and displeasure (to put it mildly) at the conduct of the three Judges of the Court of Appeal for having without any justification criticised those who were not given the opportunity to defend or explain themselves.
We wish to remind Judges and Magistrates that where they find that an advocate handling any matter before them has grossly abused the process of Court or acted in a highly unethical manner, the proper step to be taken is for them to lodge a report with the Legal Profession Disciplinary Board established under s. 99(2) of the Legal Profession Act 1976 which will investigate the complaint and where both the accuser and the accused will be given a fair opportunity to state their cases.
For the appellants – Dato’ V.K. Lingam (S. Sivaparanjothi & Adam Bachek with him); M/s. V. K.Lingam & Co.
For the respondents – Loh Siew Cheang (Loo Foong Meng, Ranjit Singh & Evelyn Khoo with him);M/s. Cheang & Ariff.