Ratna Seri Arif … 1 v the Mayor of the City of (S-01(IM)-43-02 of 2016)

the planning approvals were unlawful, null and void on the ground of procedural unfairness; 3

the planning approvals were unlawful, null and void on the ground that they were unreasonable and irrational; and

the planning approvals were unlawful, null and void on the ground that they are contrary to the legitimate expectation of the appellants. [3] At the judicial review hearing, the 1st and 3rd respondents raised the following preliminary objections:

That the application for judicial review was filed out of time;

(ii) That the appellants had come to court with unclean hands. [4] The unclean hands issue relates to the 3rd respondent’s allegation that the appellants had illegally encroached into an open space adjacent to its high rise residential project by building structures such as a garage, a retaining wall and a pondok, in breach of By-Law 22 of the Building By-Laws, 1951. [5] The open space does not, however, belong to the 3rd respondent. It belongs to the State. It was urged upon the court by the 1st and 3rd respondents that to grant the appellants the reliefs sought would be tantamount to sanctioning an illegal occupation of State land and endorsing the use of the open space for personal benefit. [6] On 13.8.2013, the learned High Court Judge upheld preliminary objection (i), i.e. the limitation issue and dismissed the appellants’ entire application for judicial review on that ground alone. The learned judge did not address the issue of unclean hands as he took the view that the limitation issue goes to the jurisdiction of the court. 4 [7] Being dissatisfied with the decision, the appellants appealed to this court. At the hearing of the appeal on 12.11.2014, the 3rd respondent raised the issue of unclean hands against the appellants, and this can be seen from the following paragraphs 23 and 31 of learned counsel’s written submissions: “23. Further, it is respectfully submitted that the Appellants’ application for judicial review should not be entertained by this Honourable Court as they have come to court with unclean hands.

In view of the clear legal principles that the court will not assist a litigant who comes to court with unclean hands, it is respectfully submitted that this Honourable Court ought to dismiss the Appellants’ appeal with costs.” [8] It is thus clear that in asking this court to dismiss the appellants’ appeal, the 3rd respondent had relied on the ground that the appellants had come to court with unclean hands. After hearing the parties, this court comprising Justices Zaharah Ibrahim (now FCJ), Alizatul Khair Osman Khairuddin and Mohd Zawawi Salleh overturned the learned judge’s decision and ordered that the appellants’ application for judicial review be heard on the merits. [9] By allowing the appellants’ appeal, it is implicit that this court rejected the 3rd respondent’s contention that the appellants had come to court with unclean hands. It would have dismissed the appellants’ appeal if it were otherwise. There can be no argument that the unclean hands issue was an issue that this court was called upon to determine as it was specifically raised by the 3rd respondent in its written submissions. 5 [10] Dissatisfied with the decision, the 1st and 3rd respondents filed separate applications for leave to appeal to the Federal Court. In the 3rd respondent’s application for leave, one of the questions posed was: “Does the principle of ‘unclean hands’ apply to judicial review proceedings?” [11] Pending hearing of the leave applications, the appellants requested the High Court to fix the case for hearing, which the court obliged. When the case came up for hearing before the High Court on 15.5.2015, it was heard by a different judge in the person of the learned Judicial Commissioner (“JC”). [12] At the hearing, learned counsel for the 1st respondent told the learned JC that the issue of unclean hands was never argued before this court at the hearing on 12.11.2014 and that the appellants’ grounds of appeal never touched on the subject. [13] The learned JC adjourned the matter for ruling on 15.6.2015. However, he did not deliver his ruling on the appointed date but instead directed the parties to submit on the issue of unclean hands before proceeding (if at all necessary) with the substantive hearing of the judicial review application as he agreed with counsel that this court did not deal with the issue of unclean hands at the hearing of the appellants’ appeal on 12.11.2014. [14] On 29.12.2015, the learned JC delivered his decision whereupon he upheld the 1st and 3rd respondents’ preliminary objection and ruled that the appellants had come to court with unclean hands. He accordingly dismissed the appellants’ application for judicial review. Thus, for the 6 second time in as many preliminary objections raised, the appellants’ entire application for judicial review was thrown out by the High Court on a preliminary point. It was against this decision that the present appeal before us was concerned with. [15] As it turned out, and well after the learned JC had delivered his decision on 29.12.2015, the Federal Court on 27.10.2016 dismissed the 1st and 3rd respondents’ application for leave to appeal against this court’s decision on 12.11.2014. This necessarily means that the decision of this court on the issue of unclean hands remains intact. [16] Having heard arguments by the parties, we unanimously allowed the appellants’ appeal and set aside the learned JC’s decision. These are our grounds for allowing the appeal. [17] Given the turn of events that preceded the filing of the present appeal, we think it would be useful, for context, to reproduce the following grounds of appeal that the appellants relied on to impugn the decision of the learned JC, as follows:

That the learned JC had erred in law and in fact in dismissing the judicial review application on the basis of unclean hands;

That the learned JC had erred in failing to consider that the issue of unclean hands had previously been argued before this Court on 12.11.2014 and was res judicata;

That the learned JC had erred in failing to consider that the 3rd respondent had even proposed a question on unclean hands for the determination of the Federal Court in its application for leave to appeal to the Federal Court; 7

That the learned JC had erred in failing to hold that the respondents were barred by issue estoppel from raising the issue of unclean hands, and in failing to hold that it was an abuse of process to do so. [18] The question for our determination was whether the learned JC was right in allowing the 1st and 3rd respondents to raise the issue of unclean hands by way of a preliminary objection, or whether the issue was res judicata. [19] There is no dearth of authority on the point. Suffice it if we refer to four of them. First, Government of Malaysia v Dato Chong Kok Lim [1973] 2 MLJ 74 where Sharma J held at page 76: “A decision given by a court at one stage on a particular matter or issue is binding on it at a later stage in the same suit or in a subsequent suit. (See Peareth v Marriott, Hook v Administrator-General of Bengal and Others and In the matter of the Trusts of the Will of Tan Tye (Deceased) Yap Liang Neo v Tan Yew Ghee and Another. Parties cannot raise a second time in the same suit an issue that has already been determined either expressly or by necessary implication. (See Louis Dreyfus v Arunachala Ayya).” (emphasis added) [20] Second, Tenaga Nasional Bhd v Prorak Sdn Bhd & Anor [2000] 1 MLJ 479. Gopal Sri Ram JCA (as he then was) delivering the judgment of the court quoted with approval the following pronouncements by Wigram VC in Henderson v Henderson [1843] All ER Rep 378 at pages 381-382: “[W]here a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought 8 forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.” (emphasis added) [21] Third, Hong Leong Bank Bhd (previously known as Credit Corp (M) Bhd) v Sheikh Ahmad Marzuki bin Sheikh Yusof [2015] 2 MLJ 12. In that case the respondent filed an application to rescind the receiving order and adjudication order on the ground that the loan had been fully settled. The application was dismissed by the registrar and the respondent appealed to the judge but subsequently withdrew the appeal. [22] Some months later, the respondent again filed an application to annul and rescind the receiving order and adjudication order, which was again dismissed by the registrar. However, on appeal to the judge, the appeal was allowed. On further appeal to this court, it was held that the respondent was estopped, pursuant to the principle of res judicata, from re-litigating the issues of annulment and rescission of the adjudication order and receiving order and the expungement of the proof of debt admitted by the Director General of Insolvency under the conventional loan. This is what the court said at page 21: “the respondent had the opportunity to fully ventilate his case before the learned judge in chambers in the hearing of his appeal against the decision of the learned registrar in encl 12A but had instead chosen to withdraw his appeal. The same cause of action may not be relitigated between the same parties as it is res judicata. It is trite that the respondent cannot litigate by instalments;” 9 [23] Last but not least, the decision of the then Supreme Court in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 where it was held as follows at page 200: “There is one school of thought that issue estoppel applies only to issues actually decided by the court in the previous proceedings and not to issues which might have been and which were not brought forward, either deliberately or due to negligence or inadvertence, while another school of thought holds the contrary view that such issues which might have been and which were not brought forward as described, though not actually decided by the court, are still covered by the doctrine of res judicata, ie doctrine of estoppel per rem judicatum. We are of the opinion that the aforesaid contrary view is to be preferred; it represents for one thing, a correct even though broader approach to the scope of issue estoppel. It is warranted by the weight of authorities to be illustrated later. It is completely in accord or resonant with the rationales behind the doctrine of res judicata, in other words, with the doctrine of estoppel per rem judicatum. It is particularly important to bear in mind the question of public policy that there should be finality in litigation in conjunction with the exploding population; the increasing sophistication of the populace with the law and with the expanding resources of the courts being found always one step behind the resulting increase in litigation.” (emphasis added) [24] This authority binds us and all courts below us. We were therefore constrained by the doctrine of stare decisis to agree with learned counsel for the appellants that res judicata or issue estoppel would apply to the issue of unclean hands raised by the 1st and 3rd respondents. [25] On the facts and having regard to the authorities, it was clear to us that the issue of unclean hands raised by the 1st and 3rd respondents in the court below was res judicata. We do not think it was open to the 1st and 3rd respondents to argue before us in the present appeal that the issue of unclean hands was not before this court at the hearing of the appellants’ 10 appeal on 12.11.2014 and could therefore be raised again before the learned JC by way of a preliminary objection. [26] Paragraphs 23 and 31 of the 3rd respondent’s written submissions which it filed for purposes of the appeal on 12.11.2014 provide enough proof that the issue was indeed raised at the hearing and had been decided upon by this court. It was for this reason that we allowed the appellants’ appeal with costs, subject to payment of the allocator fee. ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 20.9.2017 For the Appellants: Chung Jiun Dau of Messrs Chung & Associates. For the 1st Respondent: Catherine Chau of Messrs Catherine Chau & Associates. For the 2nd Respondent: Dayangku Fazidah Hatun binti Pg Bagul of the State Attorney General’s Chambers. For the 3rd Respondent: Norbert Yapp and Eow Ee Pei of Messrs Norbert Yapp & Associates.