Mokhtar Sidin JCA:

[1] This is an application by the respondent for the following orders:

(1) that the extracted Order of the Court of Appeal dated 26.2.97 be amended by deleting the words "... DAN SELANJUTNYA DIPERINTAHKAN bahawa taksiran gantirugi oleh Timbalan Pendaftar pada 24.10.94 diketepikan ..." contained therein;

(2) costs of this application be paid by the Appellant;

(3) such further and/or other relief that this Honourable Court deems fit to grant.

[2] In the affidavit-in-support of the application the respondent stated that on 14 May 1987 he filed a writ against the appellant. The respondent then filed an application for O. 14 summary judgment under the Rules of the High Court 1980 for the following prayers:

(1) for a declaration that the decision of the Appellant's Disciplinary Board in terminating my services by letter dated 7.5.1987 was ultra vires the Penang Port Commission Act and therefore null and void and invalid; (Prayer 1)

(2) for a declaration that I having obtained a pass at the Bahasa Malaysia subject at the Sijil Pelajaran Malaysia examination 1976 has satisfied the Appellant's condition stipulated in their letter dated 26th July, 1975 to be confirmed as a Traffic Supervisor in the PPC's services; (Prayer 2)

(3) for an order that damages sustained by me be assessed by the Deputy Registrar and be paid by the Defendant to me together with interest at 8% per annum till the date of realisation; (Prayer 3)

[3] On 18 July 1994, the learned judge who heard this application granted order in terms prayers 1 and 3. There was no appeal against that decision. The respondent then applied for the damages to be assessed. The learned judge heard the application by the respondent for prayer 2 on 20 October 1994 and allowed it. Being dissatisfied with the decision on prayer 2 the appellant appealed and the appeal was registered as W-02-252-94 (the first appeal). In the meantime, the deputy registrar of the High Court assessed the damages as sustained by the respondent pursuant to prayer 3 and on 24 October 1994 awarded damages in the sum of RM2,274,151.42 and interest at 8% per annum from the date of judgment (24 October 1994) until the date of realisation. Being dissatisfied with the assessment awarded, the appellant appealed to the judge in chambers.

[4] In his affidavit, the respondent stated that there was no order for stay of execution against the damages assessed and the respondent levied execution of the assessed sum. The respondent obtained a garnishee order nisi on 23 November 1994 and was made absolute on 7 December 1994. The appellant then applied for a stay of execution of the garnishee order before the learned judge. On 19 December 1994, the learned judge dismissed the application for stay by the appellant. The appellant appealed against the decision of the learned judge dismissing the appellant's application for stay which was registered as W-03-16-96 (the second appeal). The appellant paid the garnished sum on the date their application for stay was refused. The respondent submitted that since the garnished sum had been paid, the second appeal is academic.

[5] Both appeals came up for hearing before the Court of Appeal on 26 February 1997. On that day, the appellant was represented by Y.M. Raja Aziz Addruse and the respondent was represented by Mr. R.R. Sethu. Normally, I would not like to refer to the judges by their names, but in the present case I felt it is necessary to do so. The Court of Appeal who heard the appeals were YA Dato' NH Chan, YA Dato' Siti Norma Yaakob and YA Dato' Abdul Malek Ahmad JJCA. YA Dato' NH Chan JCA was the presiding judge. On 26 February 1997, the first appeal was called, heard and disposed of. The second appeal was fixed for hearing on the next day. The next day, when the court was to hear the second appeal, the presiding judge instructed the deputy registrar to recall the first appeal. The presiding judge then informed the parties that he was making a consequentia