Tuesday, 4 December 2012

MALAYSIA-THE SCOPE OF RULE 137 OF THE RULES OF THE FEDERAL COURT 1995


In the Federal Court case of Dato' Seri Anwar bin Ibrahim v Public Prosecutor [2010] 5 MLJ 145, it was held that:-

"...[6] The law is now settled that the inherent powers of this court under r 137 could not be invoked to review its own decision on its merits. Such inherent power is strictly confined to procedural matters only. In Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo (Malaysia) Bhd [2008] 6 CLJ 1, the limit of  r 137 was explained by Abdul Hamid Chief Justice at p 6 as follows:
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 a matter of opinion. Even on the issue of law, it is not for this court 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.

[7] This court in the case of Chan Yock Cher v Chan Teong Peng [2005] 4 CLJ 29 at p 45 further explained that:
On the other hand, no leave to review should be given where the previous order is challenged on its merits, whether on facts or in law. Merely because the panel hearing the application is of the view that an important piece of evidence had not been given sufficient weight or that the current panel disagrees with the interpretation or application of a certain provision of the law is not a sufficient reason for the court to set aside its previous order.

[8] In Badan Peguam Negara v Kerajaan Malaysia [2009] 2 MLJ 161 at p 171; [2009] 1 CLJ 833 at p 845, Zaki Tun Azmi Chief Justice reiterated and clarified further the confine of  r 137 in the following words:
In Asean Security Papers Mills' case, I have listed out the circumstances where discretion under  r 137 can be exercised. If one were to go through all the cases, injustice could be clearly seen even before going into the merits of each case. It cannot be applied where a decision of this court is only questioned, whether in law or on the facts of the case.

[9] In India, where the Constitution has a specific provision empowering the Supreme Court to review its own decision, yet, the court held that there ought to be no review on its merits as stated in the case of Raja Prithwi Chand v Sukraj Rai AIR 1941 FC 1 at p 2 as follows:
This court will not sit as a Court of Appeal from its own decisions, nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself to be aggrieved by the decision. It would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by the court could be re-opened and re-heard.

[10] His Lordship Zaki Tun Azmi PCA (as he then was) in the case of Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd had succinctly laid out the limited or exceptional circumstances where the court has exercised its discretion to invoke  r 137, inter alia, as follows:

(a)        That there was a lack of quorum eg the court was not duly constituted as two of the three presiding judges had retired (Chia Yan Tek & Anor v Ng Swee Kiat & Anor [2001] 4 MLJ 1; [2001] 4 AMR 3921).
(b)        The applicant had been denied the right to have his appeal heard on merits by the appellate court (Megat Najmuddin bin Dato Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd [2002] 1 MLJ 385; [2002] 1 AMR 1089).
(c)        Where the decision had been obtained by fraud or suppression of material evidence (MGG Pillai v Tan Sri Dato' Vincent Tan Chee Yioun [2002] 2 MLJ 673; [2002] 3 AMR 2917).
(d)        Where the court making the decision was not properly constituted, was illegal or was lacking jurisdiction, but the lack of jurisdiction is not confined to the standing of the quorum that rendered the impugned decision (Allied Capital Sdn Bhd v Mohd Latiff bin Shah Mohd, & another application [2005] 3 MLJ 1; [2004] 5 AMR 709).
(e)        Clear infringement of the law (Adorna Properties Sdn Bhd v Kobchai Sosothikul [2006] 1 MLJ 417; [2005] 1 AMR 501).
(f)         It does not apply where the findings of this court is questioned, whether in law or on the facts (since these are matters of opinion which this court may disagree with its earlier panel) (Chan Yock Cher v Chan Teong Peng [2005] 4 AMR 693; [2005] 4 CLJ 29).
(g)        Where an applicant under  r 137 has not been heard by this court and yet through no fault of his, an order was inadvertently made as if he had been heard (Raja Prithwi Chand v Sukhraj Rai AIR 1941 FC 1).
(h)        Where bias had been established (Taylor & Anor v Lawrence & Anor [2002] 2 All ER 353).
(i)          Where it is demonstrated that the integrity of its earlier decision had been critically undermined eg where the process had been corrupted and a wrong result might have been arrived at (Re Uddin (a child) (serious injury: standard of proof) [2005] 3 All ER 550).
(j)          Where the Federal Court allows an appeal which should have been consequentially dismissed because it accepted the concurrent findings of the High Court and Court of Appeal (Joceline Tan Poh Choo & Ors v V Muthusamy [2007] 6 MLJ 485; [2007] 5 AMR 725).
[11] Based on the principles enunciated and the guidelines set out in the above mentioned cases and applying them to the grounds upon which the applicant is seeking for the review of the present case, it is abundantly clear the applicant had intended to move this court to review the issues on their merits. This is clearly outside the purview of  r 137. In the present case the earlier panel of this court had already delivered a judgment and had addressed all the issues canvassed by both parties in the appeal before them. More importantly, it must be observed that the due process of the law had taken its course whereby the notice of motion filed by the applicant at the High Court had gone through a hearing and two appeal processes before the Court of Appeal and finally culminating with the Federal Court. The applicant had exhausted his legal remedies. On this point this court had on many occasion expressed its view that there must be finality to deciding any dispute and it cannot be reviewed ad infinitum.
[12] For the reasons above stated I would dismiss the applicant's application."

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