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The State of Malaysian Judiciary more than 10 years ago

Posted on: December 17, 2008

And now no better…

Anwar Ibrahim is debating the Appointment of Judges Bill in Parliament now.
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Insas Berhad & Anor. v Ayer Molek Rubber Company Berhad & Ors 1995 [FC] PDF Print E-mail
Saturday, 12 August 1995 12:00am

INSAS BERHAD & ANOR. V. AYER MOLEK RUBBER COMPANY BERHAD & ORS.
FEDERAL COURT, IPOH
TAN SRI DATO’ HJ. MOHD. EUSOFF B. CHIN CJ DATO’ DR. ZAKARIA B. MOHD YATIM JCA DATO’ P. S. GILL J
[CIVIL APPLICATION NO. 08-48 OF 1995]
12 AUGUST 1995

JUDGEMENT

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:

This is an application by the appellants to stay an ex-parte mandatory injunction pending appeal to the Court of Appeal.

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 [1964] 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:

If there is one principle of cardinal importance in the administration of justice, it is this: the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this Court. At the same time it is equally necessary that in expressing their opinions, Judges and Magistrates must be guided by considerations of justice, fair play and restraint. It is not infrequent that sweeping generalizations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before Courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks, and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve. (emphasis added).

… We do not think that in the present case we need go into the question as to the extent to which a Judge or Magistrate may draw upon his experience in assessing or weighing evidence or even in judging the conduct of a person. We recognise the existence of exceptional circumstances in a case where the Judge or Magistrate may have to draw upon his experience to determine what is the usual or normal conduct with regard to men and affairs. We say this with respect, but it appears to us that in the present case even allowing for the great experience which the learned Judge had in the matter of criminal trials his statement that “there was not a single law-less group in the whole country whose record of crime came anywhere near the record of that organised unit which is known as the Indian Police Force” was wholly unwarranted and, if we may say so, betrayed a lack of judicial approach and restraint. The learned Judge referred to no material on which this observation was based, nor did he say that his experience of criminal trials gave him an occasion to compare the records of crime of various lawless group in the State vis-a-vis the police force. To characterise the whole police force of the State as a lawless group is bad enough; to say that its record of crime is the highest in the State is worse and coming as it does from a Judge of the High Court, is sure to bring the whole administration of law and order into dispute. For a sweeping generalisation of such a nature, there must be a sure foundation and the necessity of the case must demand it. We can find neither in the present case. We think that the State Government was justifiably aggrieved by such a sweeping remark. Similar in nature is the remark about the stinking of “every fish in the police force barring, perhaps, a few”. The word “perhaps” seems to indicate that even about a few, the learned Judge had some doubt. We consider that these sweeping generalisations defeat their own purpose.

They were not necessary for the disposal of the case against Mohammad Naim.

…For the reasons given above, we have come to the conclusion, a conclusion which justice demands, that the present case is one of those exceptional cases where the inherent jurisdiction of the Court should have been exercised and the remarks earlier referred to as (a), (b) and (c) should have been expunged.

We accordingly allow the appeal and direct that the aforesaid remarks do stand expunged from the order of the learned Judge dated 4 August 1961.

In Singer Sewing Machine v. Jeremiah, [1972] 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.

It is stated in Halsbury’s Laws of England (4th Ed.) para 84 as follows:

Implicit in the concept of fair adjudication lie two cardinal principles, namely, that no man shall be Judge in his own cause (memo judex in causa sua) and that no man shall be condemned unheard (audi alteram partem). These two principles, the rules of natural justice, must be observed by Courts, tribunals, arbitrators, and all persons and bodies having the duty to act judicially, save where their application is excluded expressly or by necessary implication.

In A.M. Mathur v. Pramod Kumar Gupta & Ors. [1990] 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:

Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be a constant theme of our Judges. This quality in decision making is as much necessary for Judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the Court as well to other coordinate branches of the State, the executive and the legislature. There must be mutual respect.

When these qualities fail or when litigants and public believe that the Judge has failed in these qualities, it will be neither good for the Judge not for the judicial process.

The Judge’s bench is a seat of power. Not only do Judges have power to make binding decisions, their decisions legitimate the use of power by other officials. The Judges have the absolute and unchallengeable control of the Court domain. But they cannot misuse their authority by intemperate comments, undignified banter of scathing criticism of Counsel, parties or witnesses.

We concede that the Court had the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct.

Learned Judge having held that the High Court has no jurisdiction to entertain the review petition ought not to have commented on the professional conduct of the appellant and that too without an opportunity for him.

We regret to note that the observations made and aspersions cast on the professional conduct of the appellant are not only without jurisdiction, but also they are wholly and utterly unjustified and unwarranted.

We therefore, allow the appeal and expunge all the remarks made by B M Lal, J against the appellant in the impunged order.

Bhagwati CJ in State of M.P. & Ors. v. Nandlal & Ors., [1986] 4 SCC 566, at 615 in expressing his strong disapproval of the strictures made by the Judge, stated:

We may observe in conclusion that Judges should not use strong and carping language while criticising the conduct of parties or their witnesses. They must act with sobriety, moderation and restraint. They must have the humility to recognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and result in injustice.

Here, in the present case, the observations made and strictures passed by B M Lal, J were totally unjustified and unwarranted and they ought not to have been made.

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 [1994] Supp. (3) SCC 437 at 448, where the Indian Supreme Court held:

Therefore one of the main principles is that a Judge should take special care in making disparaging remarks against a Judge of a subordinate Court or against a person or authority whose conduct comes in for consideration before him in cases to be decided by him. Making uncalled for remarks against the said persons or authorities would be violation of judicial discipline.

We would therefore expunge the following remarks from the judgment of the Court of Appeal:

…But this case is more than that. This is a case about an injustice which has been perpetrated, by a Court of law.

This is also a case about abuse of the process of the High Court and, therefore, it concerns the inherent power which any Court of justice must possess to prevent misuse of its procedure and in which the Court has a duty to exercise this salutary power.

Although the ex-parte mandatory injunction should not have been granted in the circumstances of this case in the first place, that is not the injustice which is revealed in this case. The injustice is manifest: it is to be seen in the form in which the order is framed, the terms of which pre-empt the defendants from exercising their right to apply to discharge an ex-parte injunction obtained behind the backs of the defendants. Here, the plaintiffs through their legal advisers have abused the process of the High Court by instigating the injustice through misuse of the Court’s procedure by manipulating it in such a way that it becomes manifestly unfair to the defendants.

By doing what they did, these unethical lawyers have brought the administration of justice into disrepute among right-thinking people.

We do not think we can do better with this censure than to voice and emphasise the opening words of Lord Diplock in his judgment in the House of Lords in Hunter v. Chief Constable [1982] AC 529, at 536:

My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any Court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique.

It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the Court has a duty (I disavow the word discretion) to exercise this salutary power.

The fact that the proceedings were filed in the wrong Division does not render the proceedings to be in any way invalid but may, coupled with other considerations in the present case, give the impression to right thinking people that litigants can choose the Judge before whom they wish to appear for their case to be adjudicated upon.

This, we consider, may lead to very unhealthy negative thinking and since justice must not only be done but must also be seen to be done it is imperative for the trial Judge, upon perusal of the pleadings, to have taken the initiative of transferring the proceedings to the right Division so as to dispel any notion that he is partial to any party.

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.

www.malaysianbar.org.my

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