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1 IN THE COURT OF APPEAL OF MALAYSIA AT PUTRAJAYA ( APPELLATE JURISDICTION)
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Court of Appeal of Malaysia29 Sept 2021W-01(NCC)(A)-158-03/2020
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“(iv), 37 (1)(a) (vi) and 37 (1) (b)(ii) of the Arbitration Act 2005 And In the matter of Orders 7, 28, 69”
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1 IN THE COURT OF APPEAL OF MALAYSIA AT PUTRAJAYA ( APPELLATE JURISDICTION)
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BETWEEN
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KEMENTERIAN DALAM NEGERI KERAJAAN MALAYSIA - APPELLANTS AND SALCONMAS SDN BHD - RESPONDENT [In the Matter of High Court of Malaya at Kuala Lumpur Originating Summons No. WA-24 NCC (ARB)-45-10/2019 In the matter of a Privatisation Agreement dated 30.10.2004 And In the matter of an arbitration between Salconmas Sdn Bhd and Ketua Setiausaha Kementerian Dalam Negeri dan Kerajaan Malaysia And In the matter of an Arbitration Final Award dated 9.8.2019 And 26/07/2022 09:19:33 W-01(NCC)(A)-158-03/2020 Kand. 176 In the matter of sections 37 (1)(a)
Subparagraph
(iv), 37 (1)(a) (vi) and 37 (1) (b)(ii) of the Arbitration Act 2005 And In the matter of Orders 7, 28, 69
Subsection
(4), 69 (5) and 92 Rule 4 of the Rules of Court 2012
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Between Ketua Setiausaha Kementerian Dalam Negeri
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Kerajaan Malaysia - Plaintiffs And Salconmas Sdn Bhd - Defendant] CORAM: MOHAMAD ZABIDIN BIN MOHD DIAH, JCA HADHARIAH BINTI SYED ISMAIL, JCA SUPANG LIAN, JCA JUDGMENT OF THE COURT Introduction [1] The appeal by the appellants (the plaintiffs) is against the decision of the High Court dated 14.2.2020, in dismissing the appellants’ application to set aside the arbitral Final Award with costs of RM10,000.00. [2] We heard the appellants’ and the respondent’s submissions on 29.9.2021 and unanimously dismissed the appeal. Background facts [3] On 30.10.2004, the appellants together with one company named Syarikat Tanah dan Harta Sdn Bhd and the respondent (defendant) entered into a Privatisation Agreement (the Agreement) to develop a new General Operations Force (Pasukan Gerakan Am (PGA) ) Complex in Sibu and Limbang with the contract sum of RM68,100,000.00 through land swap (the Project) . [4] The Agreement is conditional upon the respondent fulfilling the condition precedent stipulated in clause 2 of the Agreement which reads as follows: “2. CONDITION PRECEDENT
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2.1 This Agreement is conditional upon the Company’s fulfilment of the following conditions precedent:-
a
(a) The Company shall prior to the commencement date acquired Project Land 2B at its own risks, costs and expenses; and
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(b)Submit to the Government the appropriate documents evidencing to the satisfaction of the Government that the company has fulfilled the condition specified in clause
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2.1 (a) above; Within six (6) months from the Execution Date.
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2.2 ….In the event the company fails to transfer Project Land 2B within the specified period or such other period as may be agreed in writing by the Government this Agreement may be terminated in accordance with clause
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22.2.” [5] It is not in dispute that the respondent had failed to fulfil the condition precedent. [6] Nine years later, the appellants terminated the Agreement through a letter dated 20.8.2013. The appellants informed the respondent that the Agreement is unenforceable and no longer binding on the parties as the respondent had failed to fulfil the condition precedent. [7] The respondent disputed the termination and wrote a letter to the appellants dated 3.11.2014 requesting the formation of a Dispute Resolution Committee under clause 27 of the Agreement to settle the dispute through arbitration. However, the appellants through a letter dated 6.1.2015 rejected the request on reason that the Agreement was no longer effective and that all the clauses therein were no longer applicable and not binding on the parties. [8] The procedure for appointing an arbitrator is specifically provided in clause 28.2 of the Agreement and it reads as follows: “28.2 Any matter, dispute or claim referred to arbitration
Preamble
pursuant to clause 28.1 shall be referred to an arbitrator to be agreed by the relevant parties or, failing agreement, to be nominated on the application of any of the relevant parties by the Director of Regional Centre for Arbitration in Kuala Lumpur..” [9] The respondent’s solicitor then wrote a letter dated 12.12.2016 to the appellants to refer the dispute to arbitral tribunal and proposed En Ameir bin Hassan as sole arbitrator. There was no reply by the appellants to the said letter. [10] Therefore, in default of parties’ agreement on an arbitrator, the mechanics of clause 28.2 would require any party to make an application to the Director of AIAC for the nomination of the arbitrator. [11] It is an undisputed fact that no reference was made to the KLRCA in respect of the nomination of an arbitrator. [12] Instead, on 13.2.2017, the respondent filed Originating Summons No. 24 NCVC-23-02/2017 at Kangar High Court, Perlis ( Kangar 1st OS) applying for an order to refer the dispute to arbitral tribunal and to appoint En Ameir bin Hassan as sole arbitrator. The appellants did not file affidavit in reply. On 21.4.2017, the learned Judicial Commissioner (JC) allowed the respondent’s application (Kangar 1st Order). The appellants did not appeal against the Kangar 1st Order. [13] The 1st arbitral meeting was held on 15.8.2017 wherein the arbitrator fixed the hearing dates from 12.2.2018 to 16.2.2018. Both parties filed their respective pleadings, bundle of documents and witness statements in preparation for the hearing. [14] However, on 30.1.2018, the appellants filed Originating Summons No. WA-24 NCVC-195-01/2018 at the Kuala Lumpur High Court (KL 1st OS) and applied for the following orders:
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(i) Declaration that the arbitral proceeding contravenes clause 28 of the Agreement;
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(ii) Declaration that the Kangar 1st Order appointing Encik Ameir bin Hassan as the Arbitrator is null and void;
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(iii) That the Kangar 1st Order be set aside; and
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(iv) That all arbitral proceeding be stayed pending disposal of the KL 1st OS. [15] On 14.3.2018, the Kuala Lumpur High Court Judge allowed the appellants’ application (KL Order) and the arbitral proceeding was put to a stop. [16] The respondent then filed Originating Summons No. RA-24C (ARB)-2-03/2018 at the Kangar High Court (Kangar 2nd OS) applying for the following orders :
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(i) Declaration that the KL Order contravenes sections 8, 14, 15, 18, 23 and 34 of the Arbitration Act 2005 and void.
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(ii) That the KL Order be set aside. [17] On 26.4.2018, the Kangar High Court allowed the respondent’s application (Kangar 2nd Order). The appellants appealed against the Kangar 2nd Order to the Court of Appeal. The appeal was dismissed on 8.11.2018. There was no further appeal by the appellants. [18] The appellants and the respondent proceeded with the arbitral proceeding wherein on 9.8.2019, the Arbitrator issued a Final Award in favour of the respondent. [19] In the Final Award, the Arbitrator held inter-alia :
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(i) That the condition precedent was waived and not binding on both parties.
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(ii) That the termination of the said Agreement due to the non-compliance of the condition precedent is unlawful.
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(iii) Allowing the respondent’s claim as follows: CLAIM AMOUNT a. Loss of profit - RM144,730,780.00 b. Miscellaneous cost incurred - RM 100,000.00 c. Punitive and Exemplary Damages - RM 1,000,000.00 Total - RM145,830,780.00 [20] Aggrieved by the said Final Award, the appellants applied via Originating Summons No. WA-24 NCC (ARB)-45-10/2019 at the Kuala Lumpur High Court (KL 2nd OS) to set aside the Final Award under section 37 of the Arbitration Act 2005 (the Act) on the following grounds:
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(a) The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration;
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(b) The composition of the Arbitral Tribunal was not in accordance with the agreement of the parties; and
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(c) The award is in conflict with the public policy of Malaysia. High Court Decision [21] On the issue of the composition of the Arbitral Tribunal, the learned High Court Judge decided that in view of the implicit acceptance by the court in the 2nd Kangar OS of the fact that the appointment of the Arbitrator was indeed contrary to the agreement of the parties, Her Ladyship took the view that special circumstances exist as to why the doctrine of res judicata in the wider sense should not apply in the present case. Despite this ruling, the learned Judge finds the failure of the plaintiffs to raise the issue of the composition of the arbitral tribunal pursuant to section 18 of the Act constitutes a waiver of the right to raise the issue that the composition of the arbitral tribunal is not in accordance with the agreement of the parties. [22] On the issue of public policy, the learned Judge found the plaintiffs have failed to prove the Final Award is in conflict with public policy. [23] As the claim for miscellaneous expenses was not pleaded, the nominal award of RM100,000.00 by the Arbitrator was set aside for not falling within the terms of submission to the arbitration. [24] Save and except for setting aside the award of RM100,000.00 the appellants’ claim was dismissed. The Issues [25] The appellants raised three issues in this appeal:
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(i) Whether the issue on the appointment of the arbitrator is res judicata;
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(ii) Whether the learned High Court Judge has erred in holding that the appellants have waived the right to challenge the arbitral tribunal’s composition because the appellants did not raise the said issue before the Arbitrator under section 18 of the Arbitration 2005;
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(iii) Whether the learned High Court Judge has erred in holding the appellants have failed to prove that the Final Award is in conflict with public policy. First Issue [26] The appellants submit that the appointment of the Arbitrator and the composition of the arbitral tribunal was in contravention of clause 28.2 of the Privatisation Agreement. It is also submitted that the issue on the appointment of the arbitrator and the composition of the arbitral tribunal was not res judicata because there was never any determination made pertaining to the composition of the arbitral tribunal under clause 28.2 of the agreement in all the previous suits and appeal. [27] In response,the respondent submit that the issue on the appointment of En Ameir bin Hassan as the Arbitrator is res judicata in the sense that the fact has been finally decided and the appellants cannot relitigate the same issue in other proceeding; see Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 ML J 189; Dato Sivananthan a/l Shanmugam v Artisan Fokus Sdn Bhd [2015] 2 CL J 1076. The facts giving rise to res judicata are as follows :
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(i) The application to appoint En Ameir bin Hassan as Arbitrator was made in the Kangar 1st OS. Therefore, any issue pertaining to the appointment should be raised in the Kangar 1st OS. But, the appellants did not file affidavit in reply. In other words, the appellants elected not to participate in the Kangar 1st OS. When the Kangar High Court allowed the respondent’s application on 21.4.2017 (Kangar 1st Order), the appellants did not appeal against the decision.
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(ii) Instead, the appellants challenged the appointment of the Arbitrator via KL 1st OS on the ground the appointment contravened clause 28.2 of the Agreement and section 13 (6) & (7) of the Arbitration Act 2005 (the Act). The legality issue on the appointment was raised and argued by the appellants in KL 1st OS and was accepted by the KL High Court. On 14.3.2018, the KL High Court set aside the Kangar 1st Order (KL Order).
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(iii) In retaliation, the respondent applied to set aside the KL Order via Kangar 2nd OS. Again the appellants raised and argued the legality issue of Kangar 1st Order. 26.4.2018, the Kangar High Court allowed the respondent’s application (Kangar 2nd Order).
Subparagraph
(iv) Aggrieved, the appellants appealed against the Kangar 2nd Order to the Court of Appeal. Again, the appellants argued on the legality of the arbitrator’s appointment by the Kangar High Court. The appellants’ appeal was dismissed by the Court of Appeal. There was no further appeal by the appellants. This means the appellants have accepted the decision in the Kangar 2nd OS.
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(v) The decision in the Kangar 2nd OS means the Kangar 1st Order appointing En Ameir bin Hassan as Arbitrator remain intact, valid, final and binding on the parties. [28] Based on the background facts, we agree with the respondent that the issue on legality of the Arbitrator’s appointment is res judicata. The appellants had raised and argued the appointment issue three times i.e. in the KL 1st OS, the Kangar 2nd OS and in the Court of Appeal. We find no merit in the appellants’ contention that in all these previous suit, the court never determined the issue that the Arbitrator’s appointment was not in accordance with clause 28.2 of the Agreement. To the contrary, we find contravention of clause 28.2 of the Agreement formed the foundation of the appellants’ application to set aside the Kangar 1st Order. [29] After the Final Award was issued, the appellants filed KL 2nd OS to set aside the Final Award. Again, for the fourth time, the appellants raised the issue on the Arbitrator’s appointment giving the same reason that was raised in the KL 1st OS, Kangar 2nd OS and in the Court of Appeal. [30] At paragraphs 25, 29, 30, 34 and 35 of the judgment, the learned High Court Judge ruled that the appointment and the composition of the arbitral tribunal was not res judicata based on the following:- i) It was implicitly accepted by the Judicial Commissioner (JC) in Kangar 2nd OS that the appointment of the arbitrator was contrary to the Agreement. ii) The appellants were precluded from raising the issue of law during Kangar 1st OS. iii) The appellants’ Notice of Application to strike out Kangar 1st OS was not heard. iv) The appellants had tried to raise the issue in their striking out application but the court did not allow the appellants to be heard first. The appellants were not to blame for not being able to raise this issue in the Kangar 1st OS and because of that the doctrine of res judicata in the wider sense should not apply. [31] The respondent submit the learned High Court Judge has erred in deciding res judicata does not apply for the following reasons. First, it is submitted that it is not true that the learned JC in Kangar 2nd OS had agreed that the arbitrator’s appointment was not in accordance with the Agreement. The learned JC was merely quoting the reason given by the KL High Court in setting aside the Kangar 1st Order. It is obvious that paragraphs 19 & 20 of the learned JC’s grounds of judgment referred to by the learned High Court Judge to justify her decision that res judicata does not apply was misconstrued by the learned High Court Judge. [32] The second reason is the Notice of Application for striking out was not served on the respondent and was abandoned by the appellants. So, there was no issue of the appellants being denied an opportunity to raise the issue. Thirdly, the Notice of Application was not pleaded in the KL 2nd OS but raised by the appellants during clarification on 30.1.2020. However, the learned High Court Judge still proceeded with the non-pleaded Notice of Application and used it to justify her decision that the issue of the appointment of the arbitrator is not res judicata. It is submitted that parties are bound by their pleadings and the court is not entitled to decide a suit on a matter that is not pleaded. In support of that proposition ,the respondent cited Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] ML JU 194 wherein the Federal Court held that cases must be decided on the issue on the record. [33] In Aseambankers Malaysia Bhd & Ors v Shencourt Sdn Bhd & Anor [2014] 2 CL J 773, the Court of Appeal held that the court is not entitled to decide a suit on a matter that is not pleaded. And when the trial court decides on an issue that is not pleaded, the judgment can be set aside. [34] We have perused the KL 2nd OS and find the Notice of Application was indeed not pleaded. On the authority of Aseambankers Malaysia Bhd & Ors v Shencourt Sdn Bhd & Anor [2014] 2 CL J 773, we agree with the respondent that the learned High Court Judge had acted beyond her jurisdiction by deciding on matter that was not pleaded. Therefore, Her Ladyship’s decision that res judicata does not apply on the issue of the arbitrator’s appointment is an error of law and is set aside. Second Issue [35] During the hearing of the KL 2nd OS to set aside the Final Award, the appellants raised the issue that the composition of the arbitral tribunal was not in accordance with the agreement of the parties. But this issue was not raised in the arbitral proceedings. It is a disputed fact that the appellants had submitted and participated in the arbitral proceeding until the Final Award was issued without raising any objection over the appointment of the Arbitrator. [36] Section 18 (1) of the Arbitration Act 2005 provides: Competence of arbitral tribunal to rule on its jurisdiction 18 (1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. [37] In Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 ML J 417, the Federal Court held: “[40] A challenge to the jurisdiction of an arbitrator must be made during the arbitration proceedings itself,but not at the court hearing an application for a stay under section 10
Subsection
(1). It is the arbitrator who decides the issue of jurisdiction. Any ruling of the arbitration that it has jurisdiction can be appealed to the High Court which will finally decide the matter.” [38] The appellants took the position that since the Arbitrator’s appointment was not made in accordance with the provisions of the law, his appointment is a nullity and the Arbitrator himself is not competent to conduct the arbitral proceedings. In the circumstances, the appellants submit that the court cannot invoke section 18 (1) of the Act when the foundation of the arbitration proceedings itself is null and void. [39] The respondent submits that the failure of the appellants to state their objection to the composition of the arbitral tribunal not complying with the Agreement before the Arbitrator constitutes a waiver of rights to object as provided under section 7 of the Act which reads : Waiver of right to object
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A party who knows :-
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(a) of any provision of this Act from which the parties may derogate; or
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(b) that any requirement under the arbitration agreement has not been complied with, and yet proceeds with the arbitration without stating its objection to such non-compliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived its right to object. [40] We disagree with the appellants’ submission. The law is trite. Any objection pertaining to the Arbitrator’s appointment and his jurisdiction must be raised before the Arbitrator. The High Court in Kangar 2nd OS has held that any challenge to the Arbitrator’s jurisdiction must be made before the Arbitrator under section 18 (1) of the Act. The decision in the Kangar 2nd OS was upheld by the Court of Appeal. [41] The learned High Court Judge in the KL 2nd OS agree with the respondent that the Appellants’ failure to raise any objection before the Arbitrator under section 18 (1) of the Act constitutes a waiver of its rights to object to the jurisdiction of the Arbitrator in the application to aside the Final Award.Her Ladyship’s decision is stated in paragraphs 48, 49 and 51 of the judgment as follows : “ 48. Since the decision in the 2nd Kangar OS was upheld by the COA, it must be accepted that the COA agreed with the High Court that any challenge to the jurisdiction of an arbitrator must be made before the arbitrator as provided under section 18 (1) of the Act. Since the plaintiffs did not challenge the jurisdiction of the arbitrator pursuant to section 18 (1) of the Act, they must be deemed to have waived their right to challenge the jurisdiction of the arbitrator.It is a fact that KL OS was only filed 284 days after the Kangar First Order and 12 days before the hearing of the arbitration.
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In the circumstances, I agree that the failure of the plaintiffs to raise the issue of the composition of the a rbitral tribunal pursuant to section 18 of the Act constitutes a waiver of the right to raise that issue in proceeding to set aside the arbitral award.
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Accordingly, I am of the view that the plaintiffs have waived the right to set aside the arbitral award by raising the issue that the composition of the arbitral tribunal is not in accordance with the agreement of the parties.” [42] On the facts and the law, it is clear to us that the appellants had not complied with Section 7 and 18 (1) of the Act i.e. to raise any objection before the Arbitrator. Therefore, we find the learned High Court Judge did not err in deciding that due to the non-compliance with these provisions of the Act, the appellants had waived their right to object on the Arbitrator’s jurisdiction in the KL 2nd OS. Accordingly, we find no merit in the second issue and the appeal on this ground must fail. Third Issue [43] The appellants applied to set aside the Final Award under section 37 (1) (b)(ii) of the Act which reads: 37 (2) Without limiting the generality of subparagraph (1) (b)
Subparagraph
(ii), an award is in conflict with the public policy of Malaysia where-
b
(b) a breach of the rules of natural justice occurred-
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(i) during the arbitral proceedings; or
Subparagraph
(ii) in connection with the making of the award. [44] The term “public policy” in the context of the Act has been discussed in detail by the Federal Court in the case of Jan De Nul (Malaysia) Sdn Bhd & Anor v Vincent Tan Chee Yioun & Anor [2019] 1 CL J 1. The principles that can be distilled from the said case are as follows :
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(i) “Public Policy” are matters concerning public good and public interest;
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(ii) To succeed in setting aside the award that was in conflict with the public policy of Malaysia, the applicant must show that the most basic notions of morality and justice would be offended by the award and that the conflict is injurious to the public good in Malaysia.
Subparagraph
(iii)The concept of public policy under s.37 of the AA 2005 for the purpose of setting aside an award ought to be read narrowly and more restrictively. The court’s intervention should be sparingly used.The court must be compelled that a strong case has been made out that the arbitral award conflicts with the public policy of Malaysia.
Subparagraph
(iv) Patent injustice, manifestly unlawful and unconscionable, substantial injustice, serious irregularity and other similar serious flaws in the arbitral process and award are instances where the upholding of the award is injurious to the public good and is in conflict of public policy in Malaysia. [45] In this case, the appellants had admitted that there was no breach of natural justice during the arbitral proceeding or in connection with the making of the award. This admission is stated in paragraph 35 of the appellants’ written submission at page 2320 in Enclosure 21. For ease of reference, we reproduced paragraph 35 below: “35. It must be clarified at the outset that it is not our contention that the breach of rules of natural justice occurred during the arbitral proceedings or in connection with the making of the award as provided under section 37(2) (b) of the Act.” [46] However, the appellants alleged the Final Award is in conflict with public policy due to the following reasons:-
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(i) There was serious irregularity in the Final Award as it was issued by the Arbitrator that was not appointed in accordance with clause 28.2 of the Agreement.
Subparagraph
(ii) It was patent injustice in the Arbitrator’s finding that the Private Lands were rejected by the plaintiffs (appellants) on
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14.4.2005 which is in conflict with his other finding that CW1 agreed that as at Mei 2005 there was no agreement or instruction to vary the terms of the Agreement.
Subparagraph
(iii) It was patent injustice in the Arbitrator’s finding that the respondent was instructed by the appellants to look for alternative site and the respondent proposed Lot 284 as it was not supported by any evidence and in conflict with the respondent’s own letter dated 18.5.2005 stating their difficulty to comply with the condition precedent. (iv )It was manifestly unlawful and unconscionable in the Arbitrator’s finding that the condition precedent had been waived because the condition precedent was never complied with within the agreed period that caused the Agreement to be terminated.
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(v) The decision of the Arbitrator that there was unlawful termination is substantial injustice. [47] The very same reasonings in paragraph [41] above were raised and argued before the High Court and which the learned Judge summed up as the appellants saying that the Final Award is manifestly erroneous because the Arbitrator had misconstrued the facts of the case and made a wrong decision. It cannot be denied that the findings made by the Arbitrator to which the appellants had labelled them as patent injustice, manifestly unlawful and unconscionable and substantial injustice are actually finding of facts. It is trite law that Arbitrator is the master of facts and that the court has no jurisdiction to set aside an award on the ground of error of fact or law on the face of the award. [48] In Far East Holdings Bhd & Anor v Majlis Ugama Islam dan Adat Resam Melayu Pahang & Other Appeals [2018] 1 CL J 693, the Federal Court held : “[115]…’Error of fact or law on the face of the award ‘ is not prescribed as a ground for court intervention. Hence, under AA 2005, there is no jurisdiction to set aside an award on the ground of ‘error of fact or law on the face of the award’. [153] Where it is a question of fact, ”The arbitrators remain the masters of the facts.On an appeal the court must decide any questions of law arising from the award on the basis of full and unqualified acceptance of the findings of fact of the Arbitrators. It is irrelevant whether the court considers these findings to be right or wrong.It also does not matter how obvious a mistake by the arbitrators on issues of fact might be or what the scale of the financial correspondence of the mistake of fact might be.” [49] After considering the facts and the law, the learned High Court Judge found that the appellants have not satisfied the criterion of “conflict with public policy”. Therefore, the application to set aside the Final Award based on the ground of conflict with public policy was dismissed. [50] We find the learned High Court Judge had not erred in her Ladyship’s finding that the element of “conflict with public policy” was not satisfied in this case. As rightly submitted by the respondent, we find the appellants have failed to explain in what way the Final Award is said to create patent or substantial injustice or is manifestly unlawful and unconscionable to the extent of conflicting against the public policy in Malaysia. We also find the appellants have failed to prove that the most basic notions of morality and justice would be offended by the award and that the conflict is something injurious to the public good in Malaysia. For these reasons, we find no merit in the third issue raised by the appellants. Our Decision [51] There is no merit in the appellants’ appeal. The appeal is therefore dismissed. Dated 15th July 2022. Hadhariah binti Syed Ismail Judge Court of Appeal. For the Appellants/ Plaintiffs : Zureen Elina binti Mohd Dom (Nur Ezdiani binti Roseb & Nurul Atiqah binti Azizan with her) Attorney General Chambers, Putrajaya For the Respondent /Defendant : Zambri bin Ibrahim Messrs Zamri Ibrahim & Co.
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