TR Sandah ak Tabau & 7 Ors v Director of Forest, Sarawak (01-27-04/2015 (Q); 08(RS)-3-03/2019 (Q); 08(RS)-4-03/2019 (Q))

STATE GOVERNMENT OF SARAWAK … RESPONDENTS - HEARD TOGETHER WITH - CIVIL APPLICATION NO. 08(RS)-3-03/2019 (Q) SIEW AK LIBAU … APPLICANT

SIBU DIVISION STATE OF GOVERNMENT OF SARAWAK … RESPONDENTS 2 - ALSO HEARD TOGETHER WITH - CIVIL APPLICATION NO. 08(RS)-4-03/2019 (Q) SIEW AK LIBAU … APPLICANT ROSEBAY ENTERPRISE SDN BHD … RESPONDENT Coram: Azahar Mohamed, CJM David Wong Dak Wah, CJSS Alizatul Khair Osman Khairuddin, FCJ Mohd Zawawi Salleh, FCJ Idrus Harun, FCJ MAJORITY JUDGMENT OF THE COURT [1] My learned sister Justice Alizatul Khair Osman Khairuddin, and my learned brothers Justice Mohd Zawawi Salleh and Justice Idrus Harun have read this judgment in draft and have expressed their agreement with it. My learned brother Justice David Wong 3 Dak Wah holds a different view and has written a separate dissenting judgment. [2] These three related applications were filed by the applicants under rule 137 of the Rules of the Federal Court 1995 (“the RFC”) seeking for this Court to review and to set aside its own decision, which was delivered on 20.12.2016 in Federal Court Civil Appeals Nos 01(f)-27-04/2015(Q) [Appeal No. 27], 01(f)-30-04/2015(Q) [Appeal No. 30] and 02(f) 42-06/2015(Q) [Appeal No. 42] (collectively referred to as “the three appeals”). [3] The three appeals were heard jointly by a panel of five judges of this Court comprised of Raus Sharif PCA (as His Lordship then was), Abdull Hamid Embong FCJ, Ahmad Maarop FCJ (as His Lordship then was), Zainun Ali FCJ and Abu Samah Nordin FCJ. [4] Briefly, the appellants in the three appeals appealed against the decision of the Court of Appeal that affirmed the decision of the High Court by granting the respondent and the others that he represented, native customary rights (‘NCR’) over the entire lease, which the State Government of Sarawak had granted to Rosebay Enterprise Sdn Bhd. The respondents in the three appeals were Ibans and natives of Sarawak. 4 [5] In Appeal No. 27, the respondents claimed for an area measuring 5,639 hectares of land by alleging that they had acquired NCR over the claimed area by virtue of their “adat” or custom of the Ibans termed as “pemakai menoa” and “pulau galau” and also by virtue of the principle of common law. The term “pemakai menoa” and “pulau galau” mentioned in the court proceedings can be defined as an area of land held by a distinct longhouse or village community that includes farms, gardens, fruit groves, cemetery, water, and forest within a defined boundary (garis menua). “Pemakai menoa” also includes “temuda” (cultivated land that has been left to fallow); “tembawai” (old longhouse sites); and “pulau” (patches of virgin forest that have been left uncultivated to provide the community with forest resources for domestic use). The appellants conceded that the respondents had valid NCR to an area measuring 2,802 hectares of land comprising of cleared and cultivated land but disputed their claim for the balance area of the land. [6] In Appeal Nos 30 and 42, the respondents claimed that the provisional lease of state land that the authorities had granted to Rosebay Enterprise Sdn Bhd had infringed their NCR, which they had acquired since the 1800s. The High Court judge held that the 5 natives in the respective cases had acquired native customary rights and usufructuary rights over the claimed area through the Iban customs of “pemakai menoa” and “pulau”. Besides, the fact that the Iban customs of “pemakai menoa” and “pulau” were not codified did not mean that such a custom was no longer a custom, unless there were clear unambiguous words to repeal or reject the customs. It was further decided that the native’s custom of “pemakai menoa” and “pulau” were NCR having the recognition of law within the meaning of article 160 of the Federal Constitution. [7] The Court of Appeal upheld the decision of the High Court and ruled that the definition of “law” in article 160(2) of the Federal Constitution which includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof meant that common law applied in the State of Sarawak; and the common law applicable in Sarawak recognized the customary rights of the respondents known as “pemakai menoa” and “pulau” which existed and had been recognized since 1800s and had not been expressly repealed by subsequent legislation. 6 [8] Leave to appeal to the Federal Court was granted by this Court to the appellants in the three appeals on the following identical questions of law:

Whether the pre-existence of rights under native laws and customs which the common law respects include rights to land in the virgin/primary forests which the natives, like the respondents and their ancestors (who are Iban by race), had not felled or cultivated but were forests which they have reserved for food and forest produce? (Question 1)

Whether the High Court and the Court of Appeal are entitled to uphold a claim for native customary rights to land in Sarawak based on a native custom (namely) “pemakai menoa” and/or “pulau” where-i. there is no proof that such custom was practised amongst the native communities (particularly amongst the Ibans) for the creation of rights to land prior to the arrival of the first Rajah in 1841; ii. such a custom was never reflected or recognized as having been practised by the native communities in relation to the creation of rights to 7 land, in any of the Orders made and legislations passed by or during the Brooke era or by the Legislature of Sarawak; and iii. such a custom was never part of or recognized in “Tusun Tunggu” and the Adat Iban 1993, which declared, pursuant to the Native Customary Laws Ordinance, the customary laws of the Iban community in Sarawak. [Question 2]

Whether the Court of Appeal’s decision in Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors and another appeal [2005] 3 CLJ 555 that the rights of the natives is confined to the area where they settled and not where they foraged for food is a correct statement of the law relating to the extent and nature of rights to land claimed under native customary rights in Sarawak. [Question 3] [9] On 20.12.2016, the Federal Court allowed the three appeals with a 3-1 majority (Zainun Ali FCJ dissenting). At the time of delivery of judgment, Abdull Hamid Embong FCJ had retired. Judgment of the Federal Court was delivered pursuant to section 8 78(1) of the Courts of Judicature Act, 1964 (“CJA”) by the remaining four judges on the panel. [10] The remaining members of the panel delivered three separate written judgments: i. A majority judgment by Raus Sharif PCA which was agreed to by Ahmad Maarop FCJ which gave answers to the questions of law posed for determination by the Federal Court, which resulted in the three appeals being allowed and the Orders of the Courts below been set aside. Question 1 was answered in the negative. The pre-existence of rights under native laws and custom which the common law respects did not include rights to land in the primary forest which natives, like the respondents or their ancestors, had not felled or cultivated but were forests which they reserved for food and forest produce. As for Question 2, the High Court and the Court of Appeal were not entitled to uphold a claim for NCR to land in Sarawak based on a native custom of “pemakai menoa” and “pulau”. What the law of Sarawak recognized in a claim for NCR was the custom or adat of “temuda”. Question 3 was answered 9 in the affirmative. The decision in Nor Anak Nyawai (supra) that the rights of the native is confined to the area where they settled and not where they foraged for food was a correct statement of the law relating to the extent of native rights to land claimed under the NCR in Sarawak. ii. A supporting judgment by Abu Samah Nordin FCJ which declined to answer the three questions of law but allowed the three appeals on the grounds that “there was manifest error in judicial appreciation of the evidence” and on the facts, the appeals ought to be allowed and the orders of the Court below be set aside. There was no evidence in Appeal No. 27 that the primary forest had been cleared for cultivation or farming, nor was there any evidence of human activities. The area covered by the timber license could not be the area known as “pulau” under the native customary law. As for Appeal Nos 30 and 42, the respondents’ case was that the disputed land had been cleared but evidence actually showed that substantial area of the land was still under primary forest in 1951 and 1953. 10 iii. As for dissenting judgment by Zainun Ali FCJ, in summary, the learned Judge after providing answers to the three questions of law, concluded, inter alia, that “pemakai menoa” or “pulau” continues to exist from time immemorial in the community of Iban. Such custom is certain, reasonable and acceptable by the community and it must be upheld and recognized and upheld by the Court. Her Ladyship dismissed the three appeals and affirmed the Orders of the Courts below. Question 1 was answered in the affirmative. The existence of “pemakai menoa” or “pulau” was made out on the evidence. The pre-existence of rights under native laws and customs which the common law respects includes rights to land in the virgin/primary forests which the natives reserve for food and forest produce. Question 2 is at odds with principles and if at all, need not be answered. A claim for NCR to land shall fall along a spectrum with respect to their degree of connection with the land. Question 3 was answered in the negative. [11] As indicated earlier, the applicants, who were all the respondents in the three appeals, have now filed three separate applications under rule 137 of the RFC for the following orders: 11 i. An Order that the majority and/or supporting judgments of the Federal Court delivered on the 20.12. 2016 in the three appeals, be set aside and the dissenting judgment be upheld and affirmed; ii. Further and/or in the alternative, an Order under section 78(2) of the Courts of Judicature Act, 1964 for the rehearing of the three appeals; and iii. Such further and other directions as this Court deems fit and proper. [12] The starting point of any discussion on this Court’s review powers is Rule 137 of the RFC which provides as follows: “Inherent powers of the Court For the removal of doubts it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.” [13] The legal principles in respect of this Court’s review powers under rule 137 of the RFC have been meticulously and comprehensively summarized in this Court’s recent judgment in Kerajaan Malaysia v Semantan Estates (1952) Sdn Bhd [2019] 2 CLJ 145, which was delivered by Ahmad Maarop PCA. At 12 paragraphs 51 to 57 of the judgment, in discussing the scope of rule 137 of RFC, His Lordship reviewed all the leading cases on this Court’s review powers. The basic legal principle that can be gleaned from the review of the cases is that the inherent jurisdiction to review must be exercised in very limited circumstances. The power to review is to be exercised sparingly, and only in circumstances which can be described as ‘exceptional’ and which therefore override the imperative of finality. The apex court has inherent powers, by virtue of its character as a court of justice, to correct its own mistakes in order to prevent miscarriages of justice. The underlying principle for a review is that it must be to prevent injustice, and that the applicant must be able to show on the face of the record that there was injustice. The inherent power of this Court cannot be invoked to review its own decision on its merits. Rule 137 of RFC does not confer any power or jurisdiction on the Federal Court to hear appeal. Under no circumstances should the panel of this Court, which hears the review application place itself as if it were hearing an appeal and decide the case as such. Otherwise, an unsuccessful party in an appeal may try its luck before another panel that may disagree with the view of the earlier panel. If he is successful in having the order reversed, the other party will do the same thing again and there will be no finality to litigation. Finality of 13 proceedings is of fundamental importance to the certainty of the administration of law. It is in the interests of the public and the administration of justice that there must be finality to litigation. It must be noted that the Federal Court stands as the apex court in the administration of justice in our country. No further appeal shall lie from the decision of the Federal Court. [14] It is with the above principles in mind that we address the present review applications. [15] At the hearing before us, the applicants have raised a number of grounds in support of the review applications. For convenience, we shall deal with each of them in turn under three principal grounds. [16] First, it was argued for the applicants that the majority judgment had arrived at the wrong result in failing to understand the pre-existence of rights to land under native laws and customs, which the common law respect, in the primary forests that they had not felled or cultivated but which they reserved for food and forest produce. It was argued that the majority failed to consider the Court of Appeal decision in Kerajaan Negeri Selangor & Ors v Sagong Tasi & Ors [2005] 4 CLJ 169 which the applicants contend provided a correct statement of the law relating to the extent of 14 native rights to land under native customary rights in Sarawak. The applicants added that the majority judgment misinterpreted the decision of the Federal Court in Superintendent of Land & Surveys Miri Division & Anor and Madeli Salleh [2007] 6 CLJ 509; the legal meaning of the phrase “having the force of law” in Article 160(2) of the Federal Constitution; and the “Tusun Tunggu” and the Adat Iban, 1993 and section 5(2) of the Land Code of Sarawak. It was argued that “pemakai menoa” or “pulau” continues to exist from time immemorial in the community of Iban. Such custom is certain, reasonable and acceptable by the community of Iban and it must be upheld and recognized and upheld by the Court. [17] As it can be understood from the submissions of the applicants, the main thrust in respect of the first ground is that the majority judgment erred in law and had made various obvious errors. It was contended that the majority judgment went against the weight of legal authorities from within and outside our jurisdictions on native rights to land. The applicants’ complaints are that the majority and supporting judgments were wrong or have been wrongly decided by the judges concerned through misinterpretation of the relevant statutes and case law, and commission of judicial error in overruling and disturbing findings of facts by the courts below. In substance, the applicants were 15 unhappy with the decision of the majority of the Federal Court where it refused to uphold their claim of the Iban customs of “Pemakai Menoa” through the establishment of “Pulau”. In our opinion, this is not a valid and legitimate basis to seek a review of the Federal Court decision. They together cannot constitute grounds for a review under rule 137 of RFC. The important point to make is this. The majority of the Federal Court was entitled to come to its decision even when such decision maybe questioned, whether in law or on facts. On question of law, it is not for the review panel to resolve whether the earlier panel in the same case, interpreted or applied the law correctly or not for the reason that it is a matter of opinion. In the words of Abdul Hamid Mohamad CJ in Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] 6 CLJ 1: “In an application for a review by this court of its own decision, the court must be satisfied that it is a case that falls within the limited grounds and very exceptional circumstance in which a review may be made. Only if it does, that the court reviews its own earlier judgment. Under no circumstances should the court position itself as if it were hearing an appeal and decide the case as such. In other words, it is not for the court to consider whether this court had or had not made a correct decision on the facts. That is matter of opinion. Even on the issue of law, it is not for this court 16 to determine whether this court had earlier, in the same case, interpreted or applied the law correctly or not. That too is a matter of opinion. In occasion that I can think of where this court may review its own judgment in the same case on question of law is where the court had applied a statutory provision that has been repealed. I do not think that review power should be exercised even where the earlier panel had followed certain judgments and not the others or had overlooked the others. Not even where the earlier panel had disagreed with the court’s earlier judgments. If a party is dissatisfied with a judgment of this court that does not follow the court’s own earlier judgments, the matter may be taken up in another appeal in a similar case. That is what is usually called revisiting”. Certainly, it should not be taken up in the same case by way of a review. That had been the practice of this court all these years and it should remain so. Otherwise, there will be no end to litigation. A review may lead to another review and a further review. This court has so many times warned against such attempts. [18] In Chan Yock Cher v Chan Teong Peng [2005] 4 CLJ 29, the Federal Court held: “Coming back to the present application. It has been seen that the applicant questions the findings of this court both in law and on facts. These are matters of opinion. Just because we may disagree (we do not say whether we agree or disagree with such 17 findings) with the earlier panel of this court, that is not a ground that warrants us to review the decision. Similarly, regarding the interpretation and application of some provisions of the Companies Act, 1969, even if we disagree with the earlier panel (again we do not say whether we agree or disagree) that does not warrant us to set aside the judgment and the order of the earlier panel of this court and re-hear and review the appeal. Otherwise, as has been said, there would be no end to a proceeding.” [19] This brings us to the second ground. It was argued that the supporting judgment of Abu Samah Nordin FCJ erred in “disturbing the findings of facts” of the learned trial judge, which were in favour of the applicants and thereby caused injustice to the applicants by not answering the 3 questions of law posed for determination by the Federal Court. First and foremost, it is important to bear in mind that the Federal Court had reversed the decisions of the Court of Appeal and the High Court and allowed the appeal with a 3-1 majority. Another significant matter that must be noted is that Abu Samah Nordin FCJ in his supporting judgment had agreed with the conclusion arrived at by Raus Sharif PCA who delivered the majority judgment of the Court. This is clearly mentioned in the supporting judgment of Abu Samah Nordin FCJ. In the words of the learned judge: 18 “[23] I have the benefit of reading the judgment of Justice Raus Sharif, PCA. The plaintiffs’ claims to the disputed land is based on the native customary rights known as pemakai menoa and pulau. The central issue is whether the native customary rights known to the Iban community as pemakai menoa and pulau are recognized by the laws of Sarawak. If they are recognized by the laws of Sarawak, the next question is whether the plaintiffs have established their claims to the disputed land based on the native custom of pemakai menoa or pulau. This is a question of facts to be decided based on the evidence available before the court. [24] On the facts of the case, I agree with Justice Raus Sharif, PCA that the appeals by the appellants be allowed and that the orders of the courts below be set aside. After studying the records of appeal, reading the written submissions by learned counsel for both sides and hearing their oral submissions, I come to the conclusion that the plaintiffs have not established their claims to the disputed land on the balance of probabilities, for reasons which I will advert to later.” [20] What is even more patent is that at the last paragraph of his judgment, the learned judge said: “[59] Thus, on the facts of the case, the appeals ought to be allowed and that the orders of the courts below should be set aside. In the result I do not find it necessary to answer the 19 questions posed in this Court. As to costs, each party to bear their own costs.” [21] The applicants also argued that only two of the remaining judges, namely Raus Sharif PCA and Ahmad Maarop FCJ decided on the fundamental aspect of the appeals, namely, whether the custom of “pemakai menoa” and “pulau” comes within the definition of “law” in Article 160(2) of the Federal Constitution and therefore “having the force of law” and answered the three questions of law posed for determination by this Court. It was argued that this effectively resulted in a minority determination, which caused the applicants to lose their three appeals and this in itself is an injustice under rule 137 of RFC. We do not agree with this line of argument. In the first place, even though at the time of delivery of judgment, Abdull Hamid Embong FCJ had retired, there is no dispute that the judgment of the Federal Court was delivered pursuant to section 78(1) of the CJA by the remaining four judges on the panel. Therefore, at the time when judgment of the Federal Court was pronounced, the Federal Court was properly constituted and the judgments delivered cannot constitute a nullity. Furthermore, we agree with the submissions of Dato’ Sri JC Fong, State Legal Counsel for the respondents to the effect that the three appeals were decided pursuant to section 77 of CJA, by a majority opinion 20 of three judges on the panel who agreed that the three appeals be allowed and the orders of the Court of Appeal and the High Court be set aside. Although one of the three judges forming the majority declined to answer the three questions of law, it cannot be denied that for varying reasons the majority decided that the three appeals be allowed and the orders of the courts below be set aside. What is more, all this is accurately reflected in the sealed order of the Court dated 20.12.2016, which are in these terms:

………. IT IS HEREBY ORDERED (by majority Md Raus Bin Sharif PCA, Ahmad Bin Haji Maarop FCJ and Abu Samah Bin Nordin FCJ concurring and Zainun Binti Ali FCJ dissenting and Abdull Hamid Embong FCJ having retired) that this Appeal is hereby be allowed AND IT IS FURTHER ORDERED that the orders of the courts below are hereby be set aside AND IT IS LASTLY ORDERED that each party shall bear and pay their own costs of this Appeal, and deposits, if any, to be refunded. GIVEN under my hand and the Seal of the Court on 20th day of December 2016. DEPUTY REGISTRAR FEDERAL COURT OF MALAYSIA PUTRAJAYA 21 [22] What stands out is that as a matter of substance the sealed order itself emphatically spelled out the outcome of the three appeals: three of the remaining four judges on the panel had decided that the appeals be allowed and only one of the judges dismissed the appeals. No confusion arises over the terms of the sealed order. In this connection, an important point to note is that in the case of Jeli Anak Naga and four others v Tung Huat Pelita Niah Plantation and three others [2018] 1 LNS 1464, it was among others argued that the Federal Court in the three appeals did not come to a decisive conclusion on the issue of NCR claims by way of “pemakai menoa” and “pulau galau”. It was highlighted that Raus Sharif PCA and Ahmad Maarop FCJ had decided that the custom of “pemakai menoa” and “pulau” did not come within the definition of “law” in Article 160(2) of the Federal Constitution and therefore these customs were not “having the force of law” in Sarawak. It was pointed out that Zainun Ali FCJ dissented. It was further argued that Abu Samah Nordin FCJ had in fact agreed with the dissenting judgment on the law and had only allowed the appeal on finding of facts. Whilst Abdull Hamid Embong FCJ, the appellants added, had since retired. Based on all this, it was thus submitted that the Federal Court were equally divided 2-2 on its decision on the fundamental aspect of the appeal whether the 22 custom of “pemakai menoa” and “pulau” falls within the definition of “law” in Article 160(2) of the Federal Constitution and therefore “having the force of law” in Sarawak. The Court of Appeal in Jeli Anak Naga and four others v Tung Huat Pelita Niah Plantation and three others rejected this line of contention. Tengku Maimun Tuan Mat, JCA (later CJ) in delivering the judgment of the Court of Appeal, with the necessary emphasis, held: “[52] By the doctrine of stare decisis, it was the majority decision that we should follow (see Barat Estates Sdn Bhd v. Parawakan a/l Subramaniam [2000] 4 MLJ 107; Fawziah Holdings Sdn Bhd v. Metramac Corp Sdn Bhd [2006] 1 MLJ 435) and it was our position that the decision of TR Sandah was a majority decision. We were thus not convinced that we should depart from the majority judgment of the Federal Court in TR Sandah.” [23] Therefore, it is unmistakable that the Federal Court decided the three appeals with a 3-1 majority. The appeals were determined in accordance with the opinion of the majority of the judges composing the Court as provided for by section 77 of CJA. It undoubtedly was not a 2-2 decision. In our judgment, in the circumstances, the decision of the majority is not a nullity, and no injustice was caused to the applicants. The fact that the decision of the Federal Court is by a majority of the judges who heard the three 23 appeals is not a ground for a review of that majority decision by another panel under rule 137 of RFC. In this regard, we refer to the judgment of Lord Wilberforce in Fitzleet Estates Ltd v Cherry (Inspector of Taxes) [1977] 1 WLR 1345 at p. 1349 where his Lordship held: “Nothing could be more undesirable, in fact, than to permit litigants, after a decision has been given by this House with all appearance of finality, to return to this House in the hope that a differently constituted committee might be persuaded to take the view which its predecessors rejected. True that the earlier decision was by majority: I say nothing as to its correctness or as to the validity of the reasoning by which it was supported. That there were two imminently possible views is shown by the support for each by at any rate two members of the House. But doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal. It requires much more than doubts as to the correctness of such opinion to justify departing from it.” [24] As to the point raised by the appellants that the learned judge erred in “disturbing the findings of facts” and had fallen into grave error when he expressly declined to answer the questions of law posed, and allowing the appeal, it is not for this Court to consider whether the learned judge had or had not made a correct decision 24 on the facts or law because, as we have indicated earlier, that is a matter of opinion. A review is distinct from and should not be confused with an appeal. In conducting a review, the Court is primarily concerned not with the correctness of the decision under review. The emphasis on finality of litigation could not be overstated. Under no circumstances in a review application should this court position itself as if it were hearing an appeal and decide the case as such. [25] Finally, we now turn to consider the ground that the composition of the Federal Court that heard the three appeals did not have a judge with Bornean judicial experience and thereby contravening para. 26(4) of the Inter-Governmental Committee Report (IGC) 1962 read with Article Vlll of Malaysia Agreement

Mr. George Lim, counsel for the respondent, Rosebay Enterprise Sdn Bhd, submitted that “this is an afterthought and a desperate attempt to craft this application to fall within the exceptional circumstances”. There is merit in this line of argument. As pointed out by Mr. George Lim, when the three appeals were argued before the Federal Court, there was no issue raised that the panel then was incompetent for lack of quorum or that the applicants took objection to the composition of the panel; no issue 25 was raised then that not a single one of the said five member panel had the “Borneo judicial experience”. [26] More importantly, the position in law on this matter is now well settled. This issue was raised very recently before the Federal Court in an earlier rule 137 review application. As submitted by the State Legal Counsel, the Federal Court in Keruntum Sdn Bhd v The Director of Forests & Ors [2018] 4 CLJ 145 held, inter alia, that a litigant cannot enforce the recommendation under para 26(4) of IGC Report that, normally the Federal Court hearing an appeal from a case originating from the Borneo States should comprise of at least one Judge with Bornean judicial experience, because this recommendation has never been implemented by legislative, executive or other action by the Governments of the Federation of Malaya, Sabah or Sarawak and also, not incorporated into the Constitution of Malaysia. It was submitted by the State Legal Counsel that “there is no basis or cogent reason for this Coram of the Federal Court to deviate from its decision in the Keruntum Sdn Bhd case”. In this regard, I think it is important that we repeat here in extenso, with the necessary emphasis, what Zulkefli Ahmad Makinudin PCA said in delivering the judgment of the Court: ‘[16] It is to be noted that it is art. 122 of the Federal Constitution which provides for the constitution of the Federal Court. This 26 article does not expressly provide that amongst the judges of the Federal Court, there must be one with Bornean judicial experience. A reference was made to the provision of s. 19 of the Malaysia Act 1963 and art. 123 of the Federal Constitution on the qualification for appointment of a judge of the Federal Court. Neither of these two provisions stipulates that the qualification for appointment of a judge of the Federal Court having Bornean judicial experience is either required or preferred. [17] The composition of the Federal Court at any given time is determined by the Chief Justice. It is also to be noted that subsequent to the IGC report, and the coming into force of the Courts of Judicature Act 1964 throughout Malaysia with effect from 16 March 1964, s. 74 remained unamended. It is our considered view reading s. 74 of the CJA together with art. 122 of the Federal Constitution, clearly does not impose a legal requirement that the Federal Court, when hearing or disposing of cases, must consist of at least one judge with Bornean judicial experience. [18] On the applicability of para. 24 of the IGC report relied on by the applicant and the use of the word “normally” in the said report, we are of the view that it did not intend to impose any mandatory requirement regarding both the composition of the court or where it sits when hearing a case arising from a Borneo State. With respect, we do not agree with the contention of the applicant that because the present case is a normal case, therefore the 27 convention ought to have been observed having regard to the Federal structure of our Federal Constitution. [19] It is to be noted that the recommendation in para. 26(4) of the IGC report was never implemented under Article VIII of the Malaysia Agreement 1963 which provides as follows: The Governments of the Federation of Malaya, North Borneo and Sarawak will take such legislative, executive or other action as may be required to implement the assurances, undertakings and recommendations contained in Chapter 3 of, and Annexes A and B to the Report of the Inter-Governmental Committee signed on 27 February, 1963, in so far as they are not implemented by express provisions of the constitution of Malaysia. [20] The said recommendation in para. 26(4) was never implemented by an express provision in the Federal Constitution nor by any legislative, executive or other action by the Government of the Federation of Malaya, North Borneo (Sabah) and Sarawak. We are in agreement with the submission of learned counsel for the respondent that Article VIII of the Malaysia Agreement did not mandate the Judiciary to take action to implement the said recommendation and the recommendation in para. 26(4) of the IGC report cannot be enforced by the courts whether by a decision made in this application or by way of rules made pursuant to ss. 16 and 17 of the CJA. [21] It is our judgment that since the said recommendation of the IGC report has not and was never implemented under Article VllI of the Malaysia Agreement, the applicant cannot therefore claim 28 any legal right to have a “judge with Bornean experience” in the appeal panel when its appeal was heard and decided by the Federal Court.’ [27] The judgment of the Federal Court in Keruntum Sdn Bhd case represents the law on the subject matter as we apply today. There’s no other case that’s clearer than this on this point. We are in complete agreement with the above view; we are of the opinion that the decision is correct and should be followed. There is no valid reason for us to depart from our own decision in the Keruntum Sdn Bhd case. Therefore, this attempt by the applicants to question the composition or quorum of the panel of judges hearing the three appeals is without any merit and must inevitably fail. [28] In the upshot, we find that there is no basis for a new panel of the Federal Court to review the earlier decision of the Court made by a majority of the judges thereof. In reality, as aptly described by the State Legal Counsel, these review applications have all the hallmarks of litigants seeking to appeal against the majority judgment, and for another panel of the Federal Court to uphold the minority judgment and overrule the majority decision. To allow these applications for “review” of the earlier decision of this Court, might result in chaos to the system of judicial hierarchy and would 29 undermine the important principle of finality of judgments delivered by the Federal Court as the highest Court of the country as well as the established principle that there should be finality in litigation. In Panflex Sdn Bhd v Amalan Tepat Sdn Bhd [2012] 2 CLJ 687, the Federal Court held as follows: ‘[35] In Badan Peguam Malaysia v. Kerajaan Malaysia [2009] 1 CLJ 833, Zaki Azmi CJ (as he then was), in relation to finality of judgments delivered by this court, said (at p. 175): “[27] And in the context of this case, even if we disagree with the earlier panel on the interpretation of the relevant articles of the Federal Constitution, that does not warrant us to set aside the judgment for otherwise there is no end of the proceedings”. The aforesaid view would be in line with what was said by Lord Watson in Venkata Narasimha Appa Row v. The Court of Wards & Ors [1886] 11 AC 660. At p. 664, Lord Watson in delivering the judgment of the House of Lords said: “There is a salutary maxim which ought to be observed by all Courts of last resort – Interest republicae ut sit finis litium. Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this”.’ [29] In our judgment, the present review applications are in actual fact attempts to relitigate the substantive merits of the three appeals 30 and reopen and re-examine a final decision that had already been conclusively given by this Court on 20.12.2016. It seems to us that the applicants were attempting to have the proverbial second bite of the cherry in filing the review applications herein. [30] On the face of the record, it was not shown there was injustice. For all the above reasons, we accordingly dismiss the review applications. Dated this day, 11th September 2019. -sgd- (AZAHAR BIN MOHAMED) Chief Judge of Malaya For the Applicants: Yogeswaran Subramaniam, Joshua Baru and Clarice Chan Mei Chin Messrs. Baru Bian Advocates For the Respondents in Review 3/2019: Dato’ Sri J.C. Fong (Sarawak State Counsel) and McWillyn Jiok (Sarawak State Legal Officer) Sarawak State Attorney-General’s Chambers For the Respondents in Review 4/2019: George Lim and Christine Lim Messrs. Battenberg & Talma Advocates