Coram failure in judicial decision-making invalidates judgments under section 78 of the Courts of Judicature Act 1964.

[1] The applicant made two applications under r 137 of the Rules of the Federal 1995 (r 137) to review and set aside the entire judgment of the Federal Court (both the majority and the minority) delivered on 25 September 2018 (including the Federal Court Order dated 13 November 2017 granting the respondent leave to appeal).

[2] The grounds upon which the applications were premised were as follows:

(i) Coram Failure as the three of four remaining judges of the original coram purported to "concur and adopt the Judgment" of Tan Sri Dato Seri Zulkefli Ahmad Makinudin (Tan Sri Zulkefli), who had resigned as a judge on 11 July 2018, prior to the delivery and pronouncement of the judgment which renders the judgment invalid, contrary to law, void and of no effect.

(ii) Unconstitutionality of the appointment of Tan Sri Zulkefli as an additional judge and as President of the Court of Appeal as he had reached the constitutional mandatory retirement age of 66 years and six months hence the coram who heard the appeals was not duly constituted.

(iii) We heard the applications and after careful consideration of the submissions of respective counsel, we unanimously allowed the applications of the applicant in that we set aside the entire judgment of the Federal Court (both the majority and the minority) delivered on 25 September 2018 and ordered this appeal be heard by another panel. We now give our reasons for our decision.

The Background Facts

[4] In gist, the parties in this case are Bellajade Sdn Bhd (the applicant), CME Group Berhad (1st respondent) and Tan Sri Dato Sri Lim Cheng Pow (2nd respondent) who entered into a Tenancy Agreement dated 21 February 2013 for a period of three years in respect of a 23-storey office building, known as Plaza Palas located at Jalan Tun Razak, Kuala Lumpur owned by the Applicant. The tenant is the 1st respondent with the 2nd respondent as the guarantor to the tenancy agreement.

[5] The applicant brought an action against the respondents at the Kuala Lumpur High Court alleging that 1st respondent had defaulted in the monthly rental payment and thus in breach of the tenancy agreement. In response, the 1st respondent filed a counterclaim for refund of rentals paid. The High Court on 20 May 2015 dismissed the applicants claim against the respondents and allowed the 1st respondents counterclaim. The applicant appealed to the Court of Appeal.

[6] The Court of Appeal on 24 August 2016 unanimously allowed the applicants appeal and entered judgment against both respondents for the outstanding rents together with interest thereon. The respondents applied to the Federal Court for leave to appeal and on 13 November 2017, leave to appeal was granted.

[7] The appeal was then heard on 12 March 2018 by a coram of five judges constituting of Tan Sri Zulkefli, Tan Sri Datuk Zainun Ali, Tan Sri Azahar Mohamed, Tan Sri Zaharah Ibrahim and Dato Balia Yusof Wahi. Judgment was reserved and on 25 September 2018, parties were summoned to appear for delivery of the impugned judgment.

[8] The impugned judgment was delivered by the remaining four judges in the original panel as Tan Sri Zulkefli had resigned on 11 July 2018, some two months prior to the delivery and pronouncement of the impugned judgement.

[9] In delivering the impugned judgment, three judges (majority) purported to concur and adopt the judgment of Tan Sri Zulkefli and one judge proceeded to read out parts of the impugned judgment, signed by Tan Sri Zulkefli, which allowed the respondents appeal, reversed the Court of Appeal