Sukhidir bin Kemat v Premium Proaktif Sendirian Berhad (WA-22NCvC-239-04/2022)

In this case, the Plaintiff’s claim was based on an oral agreement, pleaded as having been made sometime in May 2016 whereby the Plaintiff assisted the Defendant to submit the Defendant’s application to the then Prime Minister Dato’ Sri Najib bin Tun Razak for approval of “permit terbuka mengimport kenderaan” and the Defendant was to give 31/07/2024 22:20:16 WA-22NCvC-239-04/2022 Kand. 104 S/N 4a53dTJE0KdDowzqdEomg **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 the Plaintiff interest (kepentingan) of 30% from any revenue from the motor vehicle import permit.

The Plaintiff’s prayers, as pleaded in his Amended Statement of Claim, was allowed on 26th September 2023 by my predecessor judge after a full trial. After Justice Rozana Ali Yusoff’s decision was pronounced, the Plaintiff’s solicitors proceeded to draft and extract a sealed Judgment in terms of prayers (1) and (2) of the Plaintiff’s Amended Statement of Claim – which they had rightly done, on 25th October 2023. The relevant part of the sealed Judgement dated 26th September 2023 is as follows: -

There was no clerical error in the said Judgment. It contained the exact prayers of the Plaintiff’s Amended Statement of Claim, as could be seen at para 21(a) and (b) thereof: - S/N 4a53dTJE0KdDowzqdEomg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 The Plaintiff’s Application (Encl. 95) to amend the sealed Judgment [5] On 21st March 2024, which was about 5 months after extracting the sealed Judgment dated 26th September 2023, the Plaintiff filed his application (Enclosure 95) pursuant to Order 20 rule 11 and Order 92 rule 4 Rules of Court 2012, to seek an order to amend the second paragraph of the sealed Judgment dated 26th September 2023, as follows:

The affidavit in support of the said application was affirmed by the Plaintiff’s solicitor, who averred, inter alia, that the sealed Judgment failed to reflect the grounds of judgment. Analysis of the Facts and Law [7] Though the Plaintiff’s application (Enclosure 95) was heard together with two other applications, i.e. Enclosure 77 filed by the Plaintiff and Enclosure 82 filed by the Defendant, I shall only be stating my grounds for S/N 4a53dTJE0KdDowzqdEomg **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 deciding to dismiss the Plaintiff’s said application (Enclosure 95) because the Plaintiff has filed an appeal only regarding Enclosure 95.

I am of the view that the Plaintiff’s application, made under Order 20 rule 11 and Order 92 rule 4 Rules of Court 2012, was misconceived. Order 20 rule 11, which is commonly referred to as “the Slip Rule” states:- “Clerical mistakes in judgment or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court by a notice of application without an appeal.”

With respect, there is nothing in Order 20 rule 11 to authorise this Court to amend the said sealed Judgment because the amendments sought by the Plaintiff (in Enclosure 95) were neither “clerical mistakes” nor “any accidental slip or omission”. Hence, Order 20 rule 11 was clearly inapplicable. As for Order 92 rule 4 which is a general rule on the inherent jurisdiction of the court to prevent injustice, I am of the view that it was also inapplicable in this case. As pointed out above, the sealed Judgment did correctly reflect the intention of my predecessor judge – which was to grant judgment in terms of the Plaintiff’s prayers in his Amended Statement of Claim. If, after having amended his Statement of Claim before the trial commenced, the prayers are still incorrect or insufficient, Order 92 rule 4 does not empower this Court to overcome trite law: that the court is functus officio.

In the oft-quoted judgment of the Federal Court in Hock Hua Bank Bhd. v. Sahari Bin Murid [1981] 1 MLJ 143, it was held as follows: - “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 S/N 4a53dTJE0KdDowzqdEomg **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 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 12 Ch D 88, Kelsey v. Doune [1912] 2 KB 482; Hession v. Jones [1914] 2 KB 421, unless it is a judgment by default or made in the absence of a party at the trial or hearing.”

As highlighted above, the sealed Judgment was drawn up per the prayers in the Amended Statement of Claim after a full trial was held. It would not come under any of the exceptions permissible in law – as enunciated in Hock Hua Bank Bhd. v. Sahari Bin Murid (supra). The amendments sought by the Plaintiff were, in essence, an attempt to improve the sealed Judgment, to order the Defendant to pay to the Plaintiff 30% of the Defendant’s revenue from its vehicles import business from year 2019 to date, instead of proceeding to execute the sealed Judgement as it is. If the Plaintiff had intended to seek payment of an exact percentage of 30% of the Defendant’s revenue as from year 2019, the onus was on the Plaintiff to plead the same in the prayers of his Amended Statement of Claim. Since my predecessor had granted order in terms of the Plaintiff’s prayers as pleaded in his Amended Statement of Claim and the sealed Judgement contained the exact words of the prayers, I am of the view that this Court is functus officio after having issued a sealed Judgment in terms of the Plaintiff’s prayers (as prayed for in his Amended Statement of Claim).

The importance of pleading accurately with sufficient particulars was emphasised by the Court of Appeal in Woolley Development Sdn. Bhd. v. Stadco Sdn. Bhd. (No 1) [2011] 6 MLJ 111. The Court of Appeal allowed Woolley’s appeal and set aside a default judgment on the ground S/N 4a53dTJE0KdDowzqdEomg **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 that a judgment that failed to state its subject matter with certainty is a nullity. Malik Ishak JCA (as he then was) writing for the Court of Appeal pointed out as follows: - “[5] It is apparent that the said judgment failed completely to state the subject matter of the judgment. Though we were only concerned with the part of the judgment against the second defendant, it is pertinent to point out that the part of the judgment against the first defendant also did not state its subject matter with certainty.

As expounded above, the Federal Court ruled that it was not permissible to look at extrinsic evidence to attempt to resolve ambiguities in a judgment. This is actually common sense because a judgment ought to, on the face of it, be clear enough to enable compliance. In Tuan Hj Ahmed the Federal Court held that the judgment which failed to define the calculation of interest with certainty was a nullity and could be set aside at any time ex debito justitiae.” Conclusion [13] Further, the Defendant’s appeal against the sealed Judgment is still pending at the Court of Appeal. It would, in my view, be patently unjust to allow any amendment to the sealed Judgment – which would allow the Plaintiff to improve on his case post-judgment – while the Defendant’s appeal against the said Judgment is pending at the Court of Appeal.

I would conclude with the following summary. I found no error in the sealed Judgment that could justify any amendment pursuant to Order 20 rule 11 and also no error in the intention of the Court in granting a judgment in terms of the Plaintiff’s prayers (as prayed for in his Amended S/N 4a53dTJE0KdDowzqdEomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 4a53dTJE0KdDowzqdEomg **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 Counsel for the Plaintiff: Ivan Teng Jun Hong. SOLICITORS FOR THE PLAINTIFF: MESSRS FAHRI, AZZAT & CO. Advocates & Solicitors No. 15, Jalan PJU 7/16A, Mutiara Damansara, 47800 PETALING JAYA, SELANGOR DARUL EHSAN. Counsel for the Defendant: Hasshahari Bin Johari Mawi (Mahzal Nazrin Bin Mahat with him). SOLICITORS FOR THE DEFENDANT: MESSRS HASSHAHARI & PARTNERS. Advocates & Solicitors Space U8, Level 1, Unit No 2-11-1, Persiaran Pasak Bumi, Bukit Jelutong, Seksyen U8, 40150 SHAH ALAM, SELANGOR DARUL EHSAN. S/N 4a53dTJE0KdDowzqdEomg **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 CASE(S) REFERRED TO:

Hock Hua Bank Bhd. v. Sahari Bin Murid, [1981] 1 MLJ 143.

Woolley Development Sdn. Bhd. v. Stadco Sdn. Bhd. (No 1) [2011] 6 MLJ 111.

Order 20 rule 11 Rules of Court 2012.

Order 92 rule 4 Rules of Court 2012. S/N 4a53dTJE0KdDowzqdEomg