JUDGMENT

Abdul Hamid Mohamad CJ:

[1] I have had the privilege of reading the judgment of Arifin Zakaria FCJ and I agree with his conclusion. However, I would like to make a few points. As he has narrated the facts and reproduced the relevant provisions of the law under consideration, I shall not repeat nor reproduce the same, except where it is absolutely necessary.

[2] The respondent had obtained a monetary judgment at the High Court at Sandakan against the State Government of Sabah. The respondent then applied for and obtained a certificate of judgment sum and order for costs pursuant to s. 33(1) of the Government Proceedings Act 1956 ("GPA"). The party named in the certificate is the State Government of Sabah. As the State Government of Sabah did not make payment as required by the certificate, the respondent filed an ex parte application for leave for judicial review for an order of mandamus against the appellant, the Minister of Finance, Government of Sabah, to pay the judgment sum in accordance with said certificate. Leave was granted. The respondent then filed the substantive application for judicial review for the said order. The High Court dismissed the application. On appeal to the Court of Appeal, the court allowed the appeal of the respondent. The appellant, then obtained leave to appeal to this court, on only one issue ie,:

Given that s. 33(3), Government Proceedings Act 1956 imposes a statutory obligation on the Government of Sabah to pay according to a Certificate issued under s. 33(1), Government Proceedings Act 1956, the issue is whether Judicial Review proceedings may be taken against the Minister of Finance, Government of Sabah to compel the payment according to a Certificate issued under s. 33(1), Government Proceedings Act 1956 for a judgment for a monetary sum obtained against the State Government of Sabah.

Provided that in the event the Federal Court decides that the Minister of Finance, Government of Sabah is not the proper party in these proceedings the Applicant consents that the proper person be joined in these proceedings.

[3] Now, let us look at the overall scheme of the law on the issue.

[4]Section 33(1) GPA provides that, in brief and in relation to the facts of this case, where in any civil proceeding against the Government, any order is made by any court in favour of any person against the Government, the court shall issue to the person a certificate.

[5] Sub-section (3) provides that where the order (ie, the certificate) provides for the payment of money, the government shall pay to the person entitled the amount stated in the certificate.

[6] Sub-section (4) then provides that "Save as aforesaid no execution or attachment or process in the nature of attachment, shall be issued out of any court for enforcing payment by the Government of any such money or costs as aforesaid".

[7] In other words, the only method provided by GPA to recover a judgment sum is by the issue of the certificate. Ordinary execution proceedings are not available.

[8] This is further strengthened by the provisions of O. 73 of the Rules of the High Court 1980 ("RHC 1980"). Rule 12(1) provides:

(1) Nothing in Orders 45 to 52 shall apply in respect of any order against the Government.

[9] Sub-rule (2), though not an issue here, makes specific reference of s. 33(1) GPA.

[10] It must be noted that Orders 45 to 52 are orders pertaining to Enforcement of Judgments and Orders (O. 45), Writs of Execution: General (O. 46), Writs of Seizure and Sale (O. 47), Examination of Judgment Debtor, etc (O. 48), Garnishee Proceedings (O. 49), Changing Orders, Stop Orders, etc (O. 50), Receivers: Equitable Execution (O. 51), Rateable Distribution (O. 51A) and Committal (O. 52).

[11] In other words, as against a Government one cannot resort to any of the procedures provided by Orders 45 to 52. The only procedure allowed is as provided by s. 33 GPA.

[12] We now come to the question: does mandamus lie in this situation?

[13]Section 44 of the Spec