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ADORNA PROPERTIES SDN BHD V. KOBCHAI SOSOTHIKUL

FEDERAL COURT, PUTRAJAYA

[CIVIL APPEAL NO: 02-14-1997 (P)]

PS GILL , FCJ ; RAHMAH HUSSEIN , FCJ ; RICHARD MALANJUM JCA

27 AUGUST 2004


CIVIL PROCEDURE: Jurisdiction - Federal Court - Inherent powers of court - Application under r. 137 Federal Court Rules 1995 - Order praying for judgment to be set aside in the interest of justice - Judgment resulted in rightful owner losing lands due to forged documents under proviso to s. 340(3) National Land Code - Whether grave injustice occasioned - Whether application proper

This was an application pursuant to r. 137 of the Rules of the Federal Court 1995 ('r. 137') to set aside an order of this court pronounced on 22 December 2000 in the interests of justice. It was not disputed that there was an earlier application ('first application') by the same applicant before this court wherein the ground advanced was coram failure in that one of the judges who had presided had retired before the main judgment was delivered. That first application was dismissed. In this application the respondent raised the following issues in its preliminary objection. Firstly, that the order prayed for was already dealt with in the first application. Secondly, that the order in respect of the judgment delivered ('main judgment') was perfected in that it was sealed and extracted. Thirdly, that this application should be dismissed notwithstanding the ground relied upon as there should be finality to the litigation. Fourthly, that no party should be allowed to ventilate his grievances by way of instalment as the applicant herein. The applicant responded submitting, inter alia, that injustice had occasioned in that the main judgment resulted in the rightful owner losing her lands vide forged documents. Further, that a distinction should be drawn between the first application and this one in that the latter relied on the residuary jurisdiction or inherent jurisdiction of this court to set aside the main judgment in the interest of justice.

Held (dismissing the application)

PS Gill FCJ delivering the judgment of the court:

[1] The consequence and effect of the main judgment might be harsh when viewed without the benefit of the relevant statutory provision. However, this was not a case where grave injustice had occasioned due to clear infringement of law thereby making it permissible for successive application to be made under r. 137. The substance of the main judgment revolved in the interpretation of sub-s. (3) of s. 340 of the National Land Code including the proviso thereof. Based on the reasoning given in the main judgment and the words used in the said subsection and proviso, the interpretation given by the court was not patently wrong thereby resulting in grave injustice warranting a successive application under r. 137.

[2]There was much force to be given to the contention that there should be finality to any litigation. The main judgment was handed down by the apex court of this country. The application of r. 137 should not be made liberally as that might result in chaos to the system of judicial hierarchy. There would be nothing to prevent any aggrieved litigant from challenging any decision of this court on the ground of injustice vider. 137. If he succeeds in his application there was nothing to bar the other party from making his own application to overturn such success. There would be no end to the matter. This was not the intention of the legislature when promulgating the said rule.

[3]This application was weakened by the fact that there was the first application heard and dismissed by this court. It was never suggested that the ground advanced in this application was not available then. The only reason given before this court was human error. This was not sufficient to overlook the implication that to allow this application would tantamount to permitting the applicant to advance his grievances by instalment.

[4] There was the element of delay on the part of the applicant. There was a lapse of almost 18 months before this application was made. Therefore not only the grounds were submitted by way of instalment, there was delay as well. Such an attitude should not be condoned nor encouraged.

[5]A court of law is duty-bound to ensure that the interests of all parties appearing before it are equally safeguarded. Public interest expects it. It would be highly undesirable and prejudicial to a successful litigant to be kept in limbo while the unsuccessful party ponders as to his next course of action.

Case(s) referred to:

Adorna Properties Sdn Bhd v. Boonsom Boonyanit [2001] 2 CLJ 133 CA (refd)

Boonsom Boonyanit v. Adorna Properties Sdn Bhd [1997] 3 CLJ 17 CA (refd)

Chia Yan Tek & Anor v. Ng Swee Kiat & Anor [2001] 4 CLJ 61 FC (refd)

Lye Thai Sang & Anor v. Faber Merlin (M) Sdn Bhd & Ors [1985] 2 CLJ 423; [1985] CLJ (Rep) 196 SC (refd)

Megat Najmuddin Dato' Seri (Dr) Megat Khas v. Bank Bumiputra Bhd [2002] 1 CLJ 645 FC (refd)

MGG Pillai v. Tan Sri Dato' Vincent Tan Chee Yioun [2002] 3 CLJ 577 FC (refd)

Tai Chai Yu v. The Chief Registrar of The Federal Court [1998] 2 CLJ 358 CA (refd)


Legislation referred to:

National Land Code, s. 340

Rules of the Federal Court 1995, r. 137

For the applicant - Bastian Pius Vandargon (PK Nathan & Bernard Kok)

For the respondent - Ghazi Ishak (Ong Kheng Leong)

Low Beng Choo watching brief for Bar Council

[Appeal from Court of Appeal, Civil Appeal No: P-02-268-95]

Reported by Usha Thiagarajah

[Application dismissed with cost]

 

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