JUDGMENT

Eusoffe Abdoolcader SCJ:

The respondent is a football player registered with the Selangor Football Association which is a member of the Football Association of Malaysia (`the Association') and was at all material times a member of the national football team selected to represent the country in the Asian Games held in South Korea in September 1986. He was summoned, on a charge of having committed gross misconduct and bringing the game into disrepute in that he had instigated some members of the national team to deliberately lose the game against Saudi Arabia at Kwangju Stadium in South Korea on 21 September 1986 and also offered the sum of RM5,000 to each of them for Malaysia to lose by a two-goal margin, to appear before the Executive Committee of the Association which held an enquiry into the allegation and duly found the charge proved and the respondent guilty, and imposed on him the penalty of suspension for life from playing, coaching or holding any office in any association or club participating in any tournament or competition organised by the Association.

The respondent as a result instituted proceedings by way of originating summons on a number of grounds for a declaration that the decision of the Executive Committee of the Association made on 20 October 1986 was null and void and an injunction to restrain the Association from enforcing it, and Harun Hashim J granted the declaration and injunction sought on 4 May 1987. In this appeal against that decision we are only concerned with one issue, scilicet, that of waiver or acquiescence on the part of the respondent by virtue of his appearance before the Executive Committee.

Raja Aziz Addruse for the Association made a valiant effort in the first instance to argue that although under the Constitution of the Association the matter should have been dealt with by the Disciplinary Committee, it was still open in the circumstances to the Executive Committee to hold the enquiry and deal with it as it did but after some gentle probing by us into the matrix of his submission by reference to the requisite provisions of the Association's constating instrument he gracefully resiled and conceded that the Executive Committee had in fact no jurisdiction or power to do so, but then promptly proceeded to rely on his alternative submission that by appearing before the Executive Committee the respondent had waived his right to have the matter heard by the Disciplinary Committee on the premise that his relationship with the Association is contractual and can therefore be waived by him. We would immediately point out the fallacy of the premise in that the respondent has no direct contractual relationship or privity with the Association as he cannot be and is not a member of the Association as defined in its Constitution; the Selangor Football Association with which the respondent is registered as a player is.

The only issue for determination is therefore the question of waiver and acquiescence raised on behalf of the Association. Raja Aziz agrees in answer to a question we put that apart from the letter of 3 October 1986 from the Executive Secretary of the Association summoning him to attend before the Executive Committee, the respondent did not know before which body of the Association he was appearing. It must be borne in mind that the respondent did not have the benefit of legal advice or representation; legal representation at an enquiry is specifically excluded by the Association's Constitution and none was accordingly suggested or accorded notwithstanding the extremely grave charge preferred against the respondent.

Waiver should be found only on clear evidence, particularly when a person in the position of the respondent in this case was without legal assistance in the domestic forum. The circumstances of this matter disclosed in evidence clearly refute any semblance of waiver or acquiescence by the respondent. A waiver must be an intentional act with knowledge [Pemungut Hasil Tanah,