Hamid Sultan bin Abu Backer JCA:

GROUNDS OF JUDGMENT

[1]The appellant/husband’s (petitioner) appeal is against the decision of the learned High Court judge who refused to allow his application to amend the decree nisi to include the words ‘if found’ in item no. 5 of Annexure A of the said Decree Nisi.

[2]The learned judge’s refusal was on the grounds that the judge has become functus officio as well as an order of court can only be amended if it subscribes to the slip rule.

[3]Functus Officio principle will generally apply to cases where court has delivered decision on merit and attempt is made to re-open the decision. [See Plenitude Holdings Sdn Bhd v Tan Sri Khoo Teck Puat & Anor

[4]The Memorandum of Appeal read as follows:

1.Yang Arif Hakim yang bijaksana terkhilaf dari segi fakta dalam memutuskan bahawa tidak terdapat “kesilapan kekeranian, clerical mistakes, no accidental slip or omission”. Sehubungan dengan ini Yang Arif Hakim gagal mempertimbangkan fakta bahawa Perayu telah membuat aduan kepada peguamcara beliau yang terdahulu untuk memasukkan perkataan “if found” di item 5 dalam draf Decree Nisi tetapi peguamcara terdahulu beliau gagal berbuat demikian.

2.Yang Arif Hakim yang bijaksana terkhilaf dari segi undang-undang dalam memutuskan bahawa peruntukan “slip rule” tidak boleh dipakai dalam permohonan Perayu.”

Preliminaries

[5]This case is very unusual and the parties have hurriedly entered into a consent terms without having taken proper inventory of the items to be given back to the respondent. The item in dispute as alleged by the respondent which has not been returned are as follows:

18.1“Six (6) coffee spoons;

18.2Black & Decker citrus juicer;

18.3A few old magazines;

18.4Wedding video;

18.5Photos of the Respondent Wife’s nephew and

18.6Tapes of Nephews; and

18.7Carving knife.”

[6]The appellant had made the application because of various threats from the respondent to initiate contempt proceedings for failing to return part of the items. From the facts and items claimed, it is extremely clear the extent of animosity notwithstanding the facts that all other items agreed to be returned to the respondent has been returned. In addition, other items which were not in the list had also been given to the respondent. The items which are being claimed have no description, etc. for the court to enforce the order specifically. In addition, these are items which only the parties may recognize.

[7]A threat by the respondent to issue committal proceedings on items which is said to be missing may tantamount to bringing the administration of justice to disrepute unless the respondent has clear evidence that the items are in the possession of the petitioner. In the instant case, there is no such allegation that the appellant is attempting to dishonor the terms of the order. The conduct of the respondent on the particular facts of the case requires the court to provide a relief. The court has, in various circumstances, had provided relief where justice is required to be done and also where mistake of solicitors had to be rectified. For example:

(a)In the case of Doyle v Olby (Ironmongers) Ltd. And Others

“...We never allow a client to suffer for the mistake of his counsel if we can possibly help it. We will always seek to rectify it as far as we can possibly help it. We will correct it whenever we are able to do so without injustice to the other side.”

(b)In Tenaga Nasional Bhd v Prorak Sdn Bhd

“Whenever possible, where there is no risk of sacrifice of principle in the name of justice or at the altar of convenience, we do our best to ensure that a lay client does not suffer because of the mistake of his legal advisers. We do so in the interest of justice.”

Brief Facts

[8]To save court’s time, the brief facts and the decision of the learned judge as summarised before us in a rudimentary nature is reproduced and read as follows:

“

1.Enclosure 57 is the petitioner’s application to amend the decree nisi.

2.The parties have agreed through a consent order tha