George Seah SCJ:

This appeal raises a short but interesting practice point as to the effect of a certificate issued by a Judge that he required no further argument under s. 68(2) of the Courts of Judicature Act 1964.

For the appellant it was submitted that the learned Judge was functus officio. This was denied by learned Counsel for the respondent who argued on the authority of Re Harrison's Share Under Settlement case [1954] 2 All ER 453 that until the Order in chambers had been perfected and extracted the learned Judge had the power to review and amend it. In our opinion, the facts in Re Harrison case are very different from the facts of the present case. There, at the time of the hearing of an application on behalf of infants and unborn and unascertained persons for the approval of the Court to a scheme affecting the trusts of a settlement, there was before the House of Lords a similar case. The Judge in chambers made an order approving the scheme but before the order had been drawn up the House of Lords announced its decision, which indicated that the Court lacked jurisdiction to make the order which had been made. The Judge recalled his order and invited the parties to argue the matter further. Roxburgh J held that he was entitled to recall the order on his own initiative, and in view of the fact that persons not parties to the application were affected by the order, it was his duty to do so. Here, the learned Judge purported to vary the term of his order made in chambers after he had granted a certificate that he required no further argument when hearing an application for a stay of execution. In our judgment, the learned Judge had no jurisdiction to do this after he had certified in writing under s. 68(2) that he required no further argument. This is made abundantly clear by the implied construction of the last sentence of O. 56 r. 2(2) of the Rules of the High Court 1980 which provides that "If the Judge hears further argument, he may set aside the Order previously made and make such other order as he thinks fit". Moreover, when the certificate issued under s. 68(2) has been communicated to the appellant or his solicitor, the time of appeal begins to run as from that date (see Bank of America Trust & Savings Association v. Chai Yen [1980] 1 MLJ 87 and Datin Zaleha & Ors. v. Perkasa Trading Sdn. Bhd. [1985] CLJ (Rep) 99. We therefore rule that the learned judge was functus officio after he had issued a certificate under s. 68(2) of the Courts of Judicature Act 1964 that he required no further argument. For the reasons given above, we set aside the order dated 7 June 1985 purporting to vary the term of the order of 30 April 1985. We direct that the application for a stay of execution be heard by another Judge of the High Court at Ipoh. The appeal is allowed with costs to the appellant. The deposit be refunded to the appellant.

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