Back
HIGH COURT MALAYA JOHOR BAHRU
WU SHU CHEN (SOLE EXECUTRIX OF THE ESTATE OF GOH KENG HOW DECEASED) – Appellant
Versus
RAJA ZAINAL ABIDIN RAJA HUSS.... – Respondent
[Originating Summons No: 24-440-1994]
[1] This was an application for a stay of execution of the order made by me on 12 June 1995 pending the disposal of the appeal to the Court of Appeal. In monetary terms, this case chalked up a figure of RM25,892,000 being the acquisition award which the Land Administrator had to deposit in Court vide an ex parte order dated 24 May 1995, a move sanctioned by s 29 of the Land Acquisition Act 1960. By a vesting order made by me, the colossal figure of RM25,892,000 was vested in Raja Zainal Abidin and this was the sore point which brought about this application.
[2] Madam Wu Shu Chen, the sole executrix of the estate of Goh Keng How, affirmed an affidavit on 8 July 1995 and there, inter alia, she voiced her fear that Raia Zainal Abidin will dissipate that sum once that sum was released to him. Mr Robert Lazar, the learned Counsel for the applicant, pointed out that the appeal was filed on 15 June 1995 an he drew my attention to the merits of the appeal and the special circumstances that ought to warrant a stay.
[3] It is now trite that an appeal does not operate automatically as a stay of execution. This is clearly borne out by both s 73 of the Courts of Judicature Act 1964 and r 13 of the Rules of the of Appeal 1994. Section 73 of the Courts of Judicature Act 1964 provides that:
An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the Court below or the Court of Appeal so orders and no intermediate act or proceeding shall be invalidated except so far as the Court of Appeal may direct.
[4]Rule 13 of the Rules of the of Appeal 1994 provides that:
1An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the High Court or the Court so orders and no intermediate act or proceeding shall be invalidated except so far as the Court may direct.
[5] The above quoted provisions give a leeway for me to exercise my judicial discretion and that discretion must be exercised within the confines of the law. A concerted attempt was made to show the incorrectness of my decision but this surely, with respect, cannot be construed as a special circumstance. Put in another way, the allegations that there have been misdirections in the judgment, that the judgment was against the weight of the evidence or that there was no evidence to support the judgment as advanced by Mr Robert Lazar, are not special circumstances on which this Court will grant a stay (Re Kong Thai Sawmill (Miri) Sdn Bhd, [1976] 1 MLJ 131). Even an appeal to the Court of Appeal as contemplated by the applicant cannot constitute a special circumstance; what amounts to special circumstances must be something distinctive and out of the way (Matang Holdings Bhd & Ors v. Dato' Lee San Choon & Ors; [1985] 2 MLJ 406). In the final analysis, what may amount to special circumstances is certainly a question of fact and it varies from case to case. Lord Esher MR aptly said in Monk v. Bartram [1891] 1 QB 346 that:
It is impossible to enumerate all the matters that might be considered to constitute special circumstances; but it may certainly be said that the allegations that there has been a misdirection, that the verdict was against the weight of evidence, or that there was no evidence to support it, are not special circumstances on which the Court will grant a stay of execution.
[6] It was said that the position here was highly volatile. There was no certainty that RM25,892,000 would not be dissipated and this point must be taken into consideration and viewed against the prejudice that might be sustained by Raja Zainal Abidin if the stay was granted (Development & Commercial Bank v. Che Wan Development Sdn Bhd & Ors, [1990] 1 MLJ 12). By affidavit evidence in encl 45, Raja Zainal Abidin deposed as to his financial standing and certain details were revealed. All in all, Raja Zainal Abidin established himself as a man of considerable means with substantial assets. The
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
