Steve Shim CJ (Sabah & Sarawak):

The Issues

There are three motions before us. The first motion dated 23 February 2001 was filed by the applicant seeking to set aside the judgment of the Federal Court dated 12 July 2000. The second motion dated 30 March 2001 was filed by the respondent seeking to strike out the applicant's first motion on grounds of irregularities. The third motion dated 4 April 2001 was filed by the applicant seeking to amend the first motion. Because of the nature of the motions filed by the parties concerned, we felt it appropriate to deal with the second motion first. After hearing arguments, we dismissed the second motion for insufficient merit.

Given the conclusion we take on the second motion, and for the reasons succinctly stated by our learned sister Siti Norma Yaakob HMP, we find no difficulty in granting the third motion filed by the applicant but with cost to the respondent. This of course leaves us with the main motion filed by the applicant, which, as I have said, seeks to set aside the judgment of the Federal Court dated 12 July 2000. Essentially, two grounds have been advanced namely:

(1) that the judgment was invalid as it was delivered by an improperly constituted court; and

(2) that the said judgment was tainted by an apparent bias on the part of the presiding judge.

The Background

It is appropriate to state briefly the factual background involved. The applicant was sued by the respondent videCivil Suit No. S5-23-23-1994 concerning an article written by the applicant for a monthly magazine. On 22 October 1994, the High Court found against the applicant. The applicant appealed to the Court of Appeal but the appeal was dismissed on 18 April 1995. On 17 July 1995, the Federal Court granted the applicant leave to appeal against the decision of the Court of Appeal. On 12 & 13 January 1998, the Federal Court, comprising of Eusoff Chin, KHN; Wan Adnan, HBM; and Chong Siew Fai, HBSS, heard the appeal. Judgment was reserved to a date to be fixed. It may be noted that the respondent was at all material times represented by Dato' V.K. Lingam including the appeal before the Federal Court. By a letter dated 6 July 2000 from the deputy registrar of the Federal Court, the parties were informed that the decision of the Federal Court would be announced on 12 July 2000 at 9am. On 12 July 2000, the decision was read out by the senior assistant registrar. There was only one judgment of the court and it was written by Eusoff Chin, KHN the presiding judge.

Jurisdiction

At the outset, counsel for respondent has raised a jurisdictional issue. He contends that pursuant to art. 128 of the Federal Constitution (hereafter 'the Constitution') and s. 96 of the Courts of Judicature Act 1964, (hereafter 'the Act') the Federal Court has no jurisdiction to set aside its own judgment. Here, he has placed considerable reliance on the Supreme Court case of Lye Thai Sang & Anor v. Faber Merlin (M) Sdn Bhd & Ors[1985] 2 CLJ 423; [1985] CLJ (Rep) 196 drawing particular attention to the relevant passages in the judgment therein which state:

The question before the Court is, therefore, whether sub-section (4) can be construed to confer unlimited power on the Supreme Court to review, meaning to re-open, re-examine and re-consider with a view to correction, variation, alteration or reversal, if necessary, an earlier decision in an appeal that has already been heard and disposed of.

Our view is that there is no merit in the contention made by the applicants. Sub-section (4) of the Act cannot be construed to mean that it confers unlimited power upon the Supreme Court to re-open, re-hear or re-examine, if necessary, to reverse or set aside a judgment given in an appeal already heard and disposed of by it. So to construe would indeed not only be contrary to the clear meaning to the words used in section 69 but also contrary to Article 128(1) of the Federal Constitution. ...

With respect to appeals, section 41 of the Act provides