Only judges in office can pronounce written judgments, apex court rules

Chief Judge of Sabah and Sarawak David Wong Dak Wah.

PUTRAJAYA: The Federal Court, in a review of a tenancy dispute, has ruled that a reserved judgment can only be delivered by apex court judges who are still in office.

Chief Judge of Sabah and Sarawak David Wong Dak Wah said judges who had left office were prohibited from taking part in the determination of such judgments, although they may have heard the arguments.

“Only the remaining judges have the jurisdiction to determine the case,” Wong said in his 34-page written grounds that set aside a judgment which had been made by a judge who had resigned.

On Feb 14, a five-member bench allowed the review application by Bellajade Sdn Bhd, under Rule 137 of the Federal Court Rules 1995, which states a judgment can be nullified when it comes from a panel member who has left office.

In March last year, the Federal Court, chaired by the then Court of Appeal president Zulkefli Ahmad Makinudin, heard the tenancy dispute appeal brought by CME Group Berhad against Bellajade.

Others on the bench were Zainun Ali, Zaharah Ibrahim, Azahar Mohamed and Balia Yusof Wahi. The bench reserved judgment but Zulkefli resigned in July last year.

On Sept 25, Azahar read Zulkefli’s majority judgment, while Zainun dissented.

Wong said section 78 (1) of the Courts of Judicature Act (CoJA) 1964 stated a minimum of two judges could deliver a judgment in the absence of others due to absence or inability to act.

He said Section 78 (2) said the case would have to be tried again if there was no majority decision.

In this case, he said Zulkefli did not hold judicial office when the judgment was delivered on Sept 25, 2018 and, therefore, his written judgment could not be featured.

Wong said since Zulkefli’s judgment did not exist, any attempt to concur and adopt his ruling by the three majority judges was an exercise in futility.

“With respect, this is in contravention of Section 78 (2) of CoJA which requires judgment to be determined in accordance with the opinion of the majority of the remaining judges,” he said.

“Therefore, it is our view that Section 78 of CoJA prohibits any judge who has retired or resigned, or was unable for any other cause from participating in the proceeding of the court,” he added.

Bellajade Sdn Bhd entered into a tenancy agreement with CME Group for three years from 2013 in respect of a 23-storey office building in Kuala Lumpur.

Bellajade brought an action against CME Group alleging the latter had defaulted in the monthly rental payment.

The Federal Court finally allowed CME’s appeal, resulting in Bellajade filing a review due to coram failure. That review was heard today.

The last time the Federal Court allowed an applicant to set aside a verdict was in 2012 when the chairman of the three-man bench left his seat briefly while the proceedings were in progress.