JUDGMENT

Gopal Sri Ram JCA:

[1] This is a motion for leave by the appellant to commit the respondent for contempt of this court said to arise from the latter's failure or refusal to comply with an order of this court. We dismissed the motion and now give our reasons.

[2] The relevant facts are simple enough. The appellant bank was the respondent's employer. It dismissed him. The respondent made complaint that his dismissal was without just cause or excuse. His case was referred to the Industrial Court which found for the respondent but awarded compensation in lieu of reinstatement. The appellant applied for judicial review of the award. It wanted the award quashed. The respondent also applied to have the award reviewed on the ground that he ought to have been reinstated. The High Court dismissed the appellant's application, granted the relief sought by the respondent and directed reinstatement. The appellant appealed to this court. In the meantime the respondent wrote asking for all back wages that he claimed he was entitled to receive pursuant to the order of reinstatement. The appellant disputed this claim. The respondent then successfully moved the High Court to obtain the back wages claimed by him. This came to RM618,322.97. The respondent threatened enforcement and the appellant paid this sum. Later, on 25 April 2007, this court allowed the appellant's appeal and ordered the respondent to refund the sum paid to him less the sum of RM130,000 paid to Employees Provident Fund. The refund was to be made within 30 days of this court's order. The respondent has not complied. Hence the application.

[3] The first point we make has to do with the choice of forum. When an appeal is allowed, any judgment this court enters is enforceable not in this court but before the High Court. This is because an appeal to this court is merely a continuation of the trial and all that this court does is to review the case and enter such judgment as ought to have been entered by the High Court. So, when an appeal is allowed and a consequential order is made, for example, for the payment or refund of monies, you have to execute or enforce that judgment in the High Court: not in this court. So, if committal were to lie at all, the application to attach must be made to the High Court whose order this court reversed.

[4] The second point we make has to do with the choice of the enforcement remedy. Can the appellant enforce the order of this court directing the refund by way of committal proceedings? In answering this question, we must bear in mind that it is only an order that requires a party to do or refrain from doing an act that may be enforced by committal for contempt. That much is clear from the terms of RHC O. 45 r. 5 which provides as follows:

(1) Where:

(a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under Order 3, rule 5; or

(b) a person disobeys a judgment or order requiring him to abstain from doing an act,

then, subject to the provisions of these rules, the judgment or order may be enforced by one or more of the following means, that is to say:-

(i) with the leave of the Court, an order of committal;

(ii) where that person is a body corporate, with the leave of the Court, an order of committal against any director or other officer of the body;

(iii) subject to the provisions of the Debtors Act, 1957, an order of committal against that person or, where that person is a body corporate, against any such officer.

[5] Now, in Re Oddy, Major v. Harness [1906] 1 Ch 93 it was held by the English Court of Appeal that "an order to recover money is not an order on the defendants to do anything, and therefore that such order could not be enforced either by a supplementary order for the payment of the money within a fixed time or by attachment", per Luxmoore J in Iberian Trust, Ltd v.