Bellajade Sdn Bhd v CME Group Bhd and another appeal [2019] 5 MLJ 141

Federal Court (Putrajaya

Coram Failure

1. The parties involved in this appeal are Bellajade Sdn Bhd (“the Applicant”), CME Group Bhd (“the First Respondent”), and Tan Sri Dato’ Sri Lim Cheng Pow (“the Second Respondent”). The dispute arose from a tenancy agreement dated 21 February 2013, under which the Applicant leased a 23-storey office building known as Plaza Palas, located at Jalan Tun Razak, Kuala Lumpur, to the First Respondent. The Second Respondent acted as guarantor for the tenancy.
2. The Applicant later commenced proceedings in the Kuala Lumpur High Court, alleging that the First Respondent had failed to pay the monthly rental and had therefore breached the tenancy agreement. The First Respondent challenged this claim and lodged a counterclaim seeking a refund of rental payments made. On 20 May 2015, the High Court dismissed the Applicant’s suit and allowed the counterclaim.
3. Dissatisfied, the Applicant appealed. On 24 August 2016, the Court of Appeal unanimously reversed the High Court’s findings, entering judgment in favour of the Applicant for the arrears of rent together with interest. The Respondents subsequently sought leave to appeal to the Federal Court. Leave was granted on 13 November 2017.
4. The appeal was heard on 12 March 2018 by a five-judge panel comprising Tan Sri Zulkefli, Tan Sri Datuk Zainun bt Ali, Tan Sri Azahar bin Mohamed, Tan Sri Zaharah bt Ibrahim, and Dato’ Balia Yusof bin Hj Wahi. Judgment was reserved. Before the decision was delivered, Tan Sri Zulkefli resigned on 11 July 2018, roughly two months prior to pronouncement.
5. On 25 September 2018, the remaining four judges convened to deliver the judgment. Three judges announced that they “concurred with and adopted” a written judgment attributed to Tan Sri Zulkefli, and one judge proceeded read portions of that judgment in court. The written decision which reversed the Court of Appeal’s orders and reinstated the High Court’s orders was said to have been prepared by Tan Sri Zulkefli, although the attached version was undated and unsigned.
6. A covering certificate signed by the three majority judges stated that the impugned judgment had been prepared by Tan Sri Zulkefli and that they agreed with and adopted it. In contrast, Tan Sri Zainun Ali FCJ delivered a dissenting judgment and dismissed the appeal.

Whether a judgment remains lawful when the coram of judges is incomplete at the time of delivery

1. The Federal Court began by restating the legal principles that govern when it may review its own earlier decisions. These grounds, drawn from established case law such as Chia Yan Tek & Anor v Ng Swee Kiat & Anor [2001] 4 MLJ 1 and MGG Pillai v Tan Sri Dato’ Vincent Tan Chee Yioun [2002] 2 MLJ 673, include situations involving quorum failure, fraud, jurisdictional errors, breaches of natural justice, or circumstances where a party was not heard. Although these categories are not exhaustive, they illustrate the exceptional nature of the Court’s review power.
2. The main issue raised by the Applicant concerned the improper constitution of the coram. Relying on section 78 of the Courts of Judicature Act 1964 [Act 91], the Applicant argued that the three majority judges could not adopt a written judgment prepared by Tan Sri Zulkefli, who had already resigned before the reserved judgment was delivered. Section 78 of CJA permits remaining judges to deliver a judgment only if they form a true majority opinion among themselves. A retired judge, the Applicant argued, is no longer part of the “remaining judges” and therefore cannot contribute to the final reasoning. The Applicant also pointed out that the presence of Tan Sri Zulkefli’s name and concluding paragraph in the judgment gave the wrong impression that he still formed part of the panel.
3. The Bar Council, which was allowed to intervene due to the public interest involved, took a similar position. It contended that section 78 of CJA applies only where the absent judge is still serving on the bench, and cannot extend to a judge who has retired, resigned, or been dismissed. Therefore, any judgment influenced by such a judge would be invalid, and the appeal should be reheard.
4. The Respondents disagreed and stressed that the majority judgment expressly stated that it was delivered under subsection 78(1) of CJA and represented the views of the remaining judges. According to them, the three judges merely concurred with the draft written earlier by Tan Sri Zulkefli, but the final decision was theirs.
5. In examining the issue, the Federal Court held that section 78 of CJA requires the remaining judges to independently form and deliver their own judgment. A judge who has left office cannot participate in any way, as a judgment only becomes operative upon pronouncement, and judges retain the right to change their views until that moment. Authorities such as Surendra Singh v State of Uttar Pradesh AIR 1954 SC 194, Ramachandran a/l Suppiah v Public Prosecutor [1992] 2 SLR 707, and Chia Yan Tek supported this position. The Court emphasised that any draft issued by a former judge legally “does not exist,” and adopting it undermines the requirement that only serving judges determine the outcome.
6. Although the Bar Council argued that the phrase “any other cause” in section 78 of CJA should exclude situations of retirement, the court rejected this view. Earlier decisions, including MGG Pillai, make clear that retirement, resignation, death, or dismissal all fall within the meaning of “any other cause.” Interpreting the provision otherwise would lead to impractical and unreasonable results.
7. Consequently, the Federal Court found that the majority judgment was fatally flawed. The three judges had relied on the reasoning of someone who no longer held judicial office, resulting in a coram failure. As this amounted to a clear breach of section 78 of CJA, the court exercised its review power under rule 137 of the Rules of the Federal Court 1995. 

Both the majority and minority judgments were set aside, and the matter was ordered to be reheard by a new panel, with no order as to costs.

The case reinforces that section 78 of the Courts of Judicature Act 1964 requires the “remaining judges” to independently form their own majority opinion when delivering a reserved judgment. Any suggestion that a former judge’s reasoning formed part of the “mind of the court” invalidates the decision. This ensures transparency, certainty, and public confidence in judicial processes.