Koperasi Pekebun Kecil Wilayah Johor Selatan Berhad v Sungai Dinar Sdn Bhd (22NCVC-205-12/2014)

The plaintiff filed enclosure 91 and sought to set aside the decision of this Court which was delivered on 28.5.2017 after having gone through a full trial.

On 29.11.2017, this Court dismissed the plaintiff’s application. The reasons are set down as below.

The plaintiff’s case has a chequered past. It is constructive to set down the relevant events in chronological order to appreciate the decision of this Court.

As far back as 2008, the plaintiff filed an Originating Summons (‘OS’) via suit No. 24-2896/2008 contending that the defendant did not have the status of being a Malay company, therefore, a lease granted by the plaintiff to one Selangka Sdn Bhd who subsequently transferred the lease to the defendant company over two pieces of Malay reserved lands was void, invalid and of no effect. Before the hearing of the OS could proceed, the defendant filed an interlocutory application to strike out the plaintiff’s OS. The trial judge, after hearing the defendant’s application, struck out the plaintiff’s OS.

The plaintiff did not appeal against the decision of the trial judge in striking out the plaintiff’s OS. Instead, on 24.7.2014, the plaintiff went on to apply to the Pejabat Tanah dan Galian Johor (the third party in this action) to revoke the lease premised on the reason that the status of the Page 3 of 13 defendant company was not Malay. The Pejabat Tanah dan Galian Johor was not informed of the Court decision in the OS action and went ahead to revoke the lease in August 2014.

Subsequent to the revocation of the lease, the plaintiff filed this suit in the High Court to seek an approval of the revocation of the lease by Pejabat Tanah dan Galian Johor. The plaintiff also sought for, inter alia, a declaration that the revocation was in accordance with the plaintiff’s assertion that the status of the defendant company was not Malay. In this suit, the defendant had a counter-claim against the plaintiff.

Before this suit could proceed with the full hearing, the defendant filed an interlocutory application to strike out the plaintiff’s suit premised on the argument that the plaintiff’s case or claim ought to be barred by the doctrine of res judicata. The defendant raised the issue that the issues in the plaintiff’s claim in this suit had already been ventilated and decided in the OS action. The previous trial judge in this suit did not agree with the defendant and dismissed the defendant’s application.

Dissatisfied with the then trial judge’s ruling, the defendant filed an appeal to the Court of Appeal via Civil Appeal No. J-02(1M)(NCVC)- 1185-07/2015. After hearing the parties’ arguments, the Court of Appeal allowed the defendant’s appeal and set aside the then trial judge’s decision. Hence, the plaintiff’s claim in this suit was struck out.

The Court of Appeal through the judgment of His Lordship Idrus Harun JCA has this to say: Page 4 of 13 “[12] The main bone of contention between counsel in the first suit [referring to the OS] was whether the defendants were recognised as „Malay‟ under the Malay Reservation Enactment Johor 1936 (No. 1 of 1936). The learned judge who heard the defendant‟s application to strike out the first suit [referring to the OS] had duly considered this issue which was fully ventilated before His Lordship. Based on the SSM‟s company information in respect of the defendant (exh AK3) the learned judge in the first suit did consider this documentary evidence which showed that the defendant, as the second defendant in the first suit, was „Malay‟. Accordingly, on 20 November 2009, the first suit was dismissed by the learned judge. The plaintiff in the present action once again raised the same issue which had already been adjudicated and decided in the first suit of which the plaintiff, for reasons best known to them, chose not to appeal. The learned judge [the then trial judge], in this regard, tried in vain to distinguish the two suits by saying that the first suit was in connection with the issue of the registration of the lease at the initial stage of registration whereas the instant action was related to the status of the registration of the lease after the authority had revoked it. Whatever that explanation means, in our judgment, the fact remains that both cases clearly boiled down to the issue of the status of the defendant, and the reliefs sought by the plaintiff Page 5 of 13 which we find to be identical and that the High Court in the first suit had already made a decision.” [p. 828] “[14] It is trite law and, indeed, a fundamental rule that a matter that has been adjudicated by a competent court ought not to be pursued further by the same parties. It is irrefutable fact that the first suit was decided by a court of competent jurisdiction. The matter had already been decided on the merits by the competent court and that accordingly it is conclusive between the defendant and the plaintiff as to all matters that were already litigated or that could have been litigated in the first suit. Res judicata therefore applies to the present action as to estop the plaintiff from litigating the same issue. The respondent [sic], being the party asserting res judicata had shown that there was a final judgment on the merits and that it was conclusive as the plaintiff did not file any appeal against the High Court‟s decision. Therefore, the plaintiff ought not to be allowed to file the second suit [referring to the plaintiff’s claim in this suit].” [p.829] (Note: the decision of the Court of Appeal is reported and cited as Sungai Dinar Sdn Bhd v Koperasi Kecil Wilayah Johor Selatan Bhd [2016] 5 MLJ 825)

The Court of Appeal has lucidly explained the reasons for its decision. After the Court of Appeal delivered its decision, the case was Page 6 of 13 then remitted back to the High Court to proceed with the hearing of the defendant’s counter claim.

The plaintiff was not satisfied with the Court of Appeal’s decision in overturning the then trial judge’s decision and filed an appeal to the apex court. On 25.8.2016, the apex court dismissed the plaintiff’s Notice of Motion for leave to file an appeal to the apex court.

The defendant’s counter-claim then came before me when the case was remitted back to the High Court. The parties went through a full trial in the defendant’s counter-claim. On 28.5.2017, this Court delivered its decision and found in favour of the defendant’s counter-claim. This Court allowed the defendant’s right be restored back to its original position, and awarded RM100,000.00 to the defendant for exemplary damages.

The plaintiff did not appeal against my decision. After four months had lapsed, the plaintiff filed this enclose 91 to set aside my decision based on the ground that this Court has no jurisdiction to make a ruling in favour of the defendant in the defendant’s counter-claim because the decision has contravened ss. 2, 9 and 20 of the Malay Reservation Enactment Johor 1936. In substance, the plaintiff argued that the defendant was not a Malay company within the definition of the said Enactment, therefore, the land(s) could not be leased to the defendant company. Hence, the decision of this Court fell into error of law in allowing the defendant’s counter-claim. The plaintiff sought to set aside this Court decision dated 28.5.2017 ex debito justitiae.

This Court dismissed the plaintiff’s enclosure 91 for two reasons.

First, this Court was of the view that the main contention in the plaintiff’s application was to seek this Court to re-look into the evidence and facts and re-litigate the same issue which had been raised and decided in the OS application (or the ‘first suit’ as referred to in the Court of Appeal decision) as well as in the plaintiff’s suit which had been struck out by the Court of Appeal on the ground of res judicata.

The plaintiff sought this Court to examine the meaning of ‘Melayu’ within the definition in the Malay Reservation Enactment Johor 1936. The plaintiff took a new approach to ask this Court to re-examine the same issue, i.e. that the defendant could not hold the lease because it was not a ‘Malay’ company, which has been decided in the OS action. The re-examination of this issue was barred by the Court of Appeal by reason of res judicata. This Court is bound by the decision of the Court of Appeal. When the case was remitted back for hearing of the counter-claim, this Court had restrained the plaintiff from re-opening the same issue. In this enclosure 91, the plaintiff again raised the same issue, but in different fashion. On this score, this Court could not entertain the plaintiff’s application.

Secondly, the plaintiff had relied on the apex court decision in Badiaddin Mohd Mahidin & anor v Arab Malaysian Finance Bhd [1998] 2 CLJ 75 asserting that the plaintiff has a right to set aside the decision of this Court even after a full trial, instead of filing an appeal against the decision, because the ruling of this Court (in the counter-Page 8 of 13 claim) was lacking in jurisdiction for the reason that the decision has contradicted an existing law.

One of the legal principles enunciated in Badiaddin Mohd Mahidin could be found in the head note of the decision of his Lordship Mohd Azmi FCJ (as he then was) at p. 76, wherein his Lordship said: “It is settled law that one High Court cannot set aside a final order regularly obtained from another High Court of concurrent jurisdiction. The one special exception to this rule is where the final judgment of the High Court can be proved to be null and void on the ground of illegality or lack of jurisdiction. Apart from the breach of natural justice, in any attempt to widen the door of the inherent and discretionary jurisdiction of the superior courts to set aside an order of court ex debito justitiae to a category of cases involving orders which contravened any written law, the contravention should be one which defies a substantive statutory prohibition so as to render the defective order null and void on the ground of illegality or lack of jurisdiction. The discretion to invoke the inherent jurisdiction should also be exercised judicially in exceptional cases, where the defect is of such a serious nature that there is a real need to set aside the defective order to enable the court to do justice.”

His Lordship Peh Swee Chin FCJ (as he then was) has this to say: Page 9 of 13 “When a judgment in the High court has been perfected, a party to the judgment generally, and subject to the same passage or any written law, and apart from any appeal, cannot re-open the matter finalised in the judgment by seeking to alter it or amend it for the court would be funtus officio, by virtue of the ratio of Hock Hua Bank v Sahari Murid. Once perfected, a judgment of the High Court is also entitled to the obedience and respect from the parties to it on the basis of a command from a superior court of unlimited civil jurisdiction in the course of contentious litigation. It is also long established that one can apply to set aside an order of a superior court only in direct proceedings filed for the very purpose of having it set aside on valid grounds, but without doing so, one cannot attack its validity laterally by raising an objection to its invalidity in any other proceedings, without filing proceedings for applying to have it set aside first. When one wishes to file such proceedings to set aside, one must do so within the same proceedings or action in which the same order was obtained and not in a separate fresh proceeding or new action on any ground other than those mentioned in Hock Hua Bank v Sahari Murid.”

In Hock Hua Bank v Sahari Murid [1981] 1 MLJ 143, at p. 144, the Federal Court held as follows: Page 10 of 13 “Clearly the court has no power under any application in the same action to alter vary or set aside a judgment regularly obtained after it has been entered or an order after it is drawn up, except under the slip rule in Order 28 rule 11 Rules of the Supreme Court 1957 (Order 20 rule 11 Rules of the High Court 1980) so far as is necessary to correct errors in expressing the intention of the court: Re St. Nazaire Co., Kelsey v Doune; Hession v Jones, unless it is a judgment by default or made in the absence of a party at the trial or hearing. But if a judgment or order has been obtained by fraud or where further evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh action will lie to impeach the original judgment: Hip Foong Hong v Neotia & Co. and Jonesco v Beard. The hearing of the action will in proper case be expedited: Smith v Peizer.”

The decisions of Badiaddin Mohd Mahidin and Hock Hua Bank was further explained and affirmed by the Federal Court in Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLJ 1.

This Court is mindful of the apex court decisions. However, this Court is of the considered view that the legal proposition in the apex court decisions that a perfected judgment could still be set aside on certain grounds is not applicable in the present case. [23] The issues raised in enclosure 91 were the same in the OS and in the plaintiff’s claim (which has already been struck out), but in a different fashion. The plaintiff submitted that this Court’s decision dated Page 11 of 13

28.5.2017 in relation to the defendant’s counter-claim was contrary to the Malay Reservations Enactment Johor 1936. In other words, the plaintiff was submitting that the status of the defendant company was not Malay. The plaintiff’s submission was seriously flawed, because the status of the defendant company has already been decided, i.e. it was found to be a Malay company in the OS action. This means the argument advanced by the plaintiff to set aside the judgment of this Court relying on the apex court decision in Badiaddin Mohd Mahidin on the ground that it contradicted the law was untenable. This Court has the jurisdiction to decide the defendant has a legitimate right over the lease of the Malay reserved land, because the defendant company was and still is a Malay company. [24] The filing of enclosure 91, in the opinion of this Court, was an attempt to disguise and re-open the issue pertaining to the status of the defendant company, i.e. whether it was or was not a Malay company. [25] As far as this Court is concerned, the issue of whether the defendant company was or was not a Malay company has been fully ventilated and decided on the merits by the trial judge in the OS action. This has been affirmed by the Court of Appeal’s ruling. Hence, the plaintiff was prevented from re-litigating the issue. The decision of this Court is in concordance with the pronouncement of the decision of the Court of Appeal based on the doctrine of res judicata. [26] If the plaintiff was not satisfied with the decision of this Court, it should have filed an appeal. It is for the Court of Appeal to decide on the merits of the plaintiff’s appeal against the decision of this Court dated

28.5.2017. As far as this Court is concerned, the judgment has been perfected, and therefore, this Court is funtus officio. [27] Further, the ruling of this Court dated 28.5.2017 in relation to the defendant’s counter-claim was a decision flowing from the ruling in the OS action, and the decision of the Court of Appeal. This Court is bound by the decision of the Court of Appeal not to allow the plaintiff to adduce evidence on the issue of Malay status of the defendant company. The plaintiff could not adduce further evidence raising the same issue before this Court in its defence to the counter-claim. If the plaintiff was not satisfied with this Court’s decision dated 28.5.2017, the plaintiff ought to have filed an appeal. However, the plaintiff did not appeal. In September 2017, where enclosure 91 was filed, the plaintiff’s right to appeal had lapsed (see section 12 of the Rules of Court of Appeal 1994). [28] The plaintiff’s action in filing an appeal against the Court decision on enclosure 91 is akin to filing an appeal out of time against the decision of this Court dated 28.5.2017. Conclusion [29] Based on the above reasoning, this Court dismissed the plaintiff’s application and ordered the plaintiff to pay costs of RM5,000.00 each to the defendant and the third party. -Signed- …………………………………… (CHOO KAH SING) Judicial Commissioner High Court Johor Bahru Page 13 of 13 Counsels for the plaintiff : Shahrul Faizal Mohd Fadzli with him Tetuan Mokhtar Ngah & Co. Counsel for the defendant : Mohd Fairuz Abdullah Tetuan Mohd Najid & Partners Counsel for the Third Party :