LIMBA JAYA TIMBER SDN BHD & ANOR v SUPERINTENDENT OF LANDS AND SURVEYS, LIMBANG & ANOR [2017] 5 MLJ 625

Court of Appeal (Putrajaya)

Striking out Pleadings

2.   However, the Appellants were dissatisfied with the decision made by the First Respondent.

3.  Then, the Appellants filed an appeal to the High Court by way of originating summons under Section 34 (6) of SLC and citing the First Respondent and the Second Respondent as the parties involved in the appeal.

4.  In response, the First Respondent then applied to strike out the Appellants’ appeal to the High Court and for his name to be struck out as party to the lawsuit.

5.  The application was made based on the provisions outlined under Order 33 Rules 1, Order 15 Rules 6(2) (a), Order 18 Rules 19(1)(a), (b), (c), or (d) and Order 92 Rules 4 of the Rules of Court 2012 (ROC).

6. The learned judicial commissioner allowed the First Respondent’s application, leading to the present appeal.

(a) Order 55A of ROC is a new Order which replaces the previous Order 55 Rules 13 of the Rules of the High Court 1980 (RHC).

(b) This provision highlighted the procedure for appeal from any decision made by any person or body of persons to the High Court as follows:

“Appeals to the High Court under written law (O. 55A, r. 1)

1.  (1) Where under any written law an appeal lies from any decision of any person or body of persons to the High Court such appeal shall be made to the High Court in the State where the decision was given by way of an originating summons setting out the grounds of the appeal and supported by an affidavit, and if the Court so directs at the hearing of the appeal, by way of oral evidence.

 (2) The appellant shall annex the following documents as exhibits to the affidavit filed in support of the originating summons or to such further affidavit as may be filed in the appeal proceedings:

(a) the notes of evidence, if available;

(b) the grounds of decision, if available;

(c) the decision of the statutory body, if available; and

(d) all such documentary exhibits and other documents the parties shall consider relevant for the purposes of appeal:

Provided that the originating summons shall be filed notwithstanding that the grounds of decision are not available or ready.  If the grounds of decision become available, then they shall be filed by way of a further affidavit without the leave of the High Court.

(3) Unless otherwise provided by any written law, such appeal must be filed in the manner prescribed in paragraph (2) within one month from the date on which the decision was given or the date on which such decision was notified to the person appealing, whichever is the later date.

 (4) Unless otherwise provided by any written law, the originating summons shall be served on the Respondent in such appeal or where the Respondent is a body of persons, on the secretary, registrar or such other officer of that body of persons.”

(c)  For the purpose of the issue, Order 55A of ROC has to be read together with Section 34(6) of SLC which provides that –

“(6) Any person aggrieved by any decision of the Superintendent under this section may, within thirty days of being informed of such decision, appeal to the High Court and for the purpose of further appeal any decision of the High Court shall be deemed to be made in a civil proceeding.”

(d)  In the Court of Appeal case of Alami Vegetable Oil Products Sdn Bhd v Lombard Commodities Ltd [2009] 3 MLJ 289, the Court held that a decision rendered without knowledge of the existence of a statutory provision is considered as a per incuriam decision and should not be relied upon with certainty.

(e)  In the previous High Court’s decision, the learned judicial commissioner had decided the case based on the Federal Court’s case of Tan Guan Seng v Sibuti Yon Seng Quarry Sdn Bhd & Ors [1973] 2 MLJ 116.  The Court decided that the Superintendent of Lands and Surveys, who acted as the adjudicator in the right of way inquiry, should not be named as the Respondent.  Instead, it was deemed sufficient for the party who claimed the right of way to be included as a party in the proceedings.

(f)  The Appellants contended that the learned judicial commissioner had erred in law and significantly misdirected himself by deciding that Tan Guan Seng’s case remains as a valid and binding legal precedent to the High Court.

(g) In the present appeal, the Court of Appeal had distinguished the Federal Court’s case of Tan Guan Seng although its decision was binding for the Court of Appeal.

(h) The Court of Appeal referred to the statement by Ismail Khan CJ in Tan Guan Seng’s which read as follows:

“At the inquiry before the superintendent, the parties to the dispute were the respondents who claimed the right of way, and the appellant who opposed such claim.  In the appeal by the appellant against his decision, the party claiming the right of way should have been made Respondent and not the superintendent, the adjudicator.  It is difficult to understand why he was made the Respondent.  He therefore took the right step in obtaining the order for the substitution of the respondents in his place.  See Order 16 Rules 12 which says:

 12. Any application to add or strike out or substitute a plaintiff or defendant may be made to the Court or a judge at any time before trial by motion or summons, or at the trial of the action in a summary manner.  The respondents were added as a new party in place of the party removed…”

(i)  Hence, by referring to the statement by Ismail Khan CJ, the Court was of the view that Tan Guan Seng’s case only being as obiter dictum, which only incidental to the ratio of the case.  However, it was not binding on the present Court.

(j)  The ratio of the case pertains to whether the order for substituting parties was issued after the prescribed limitation period.  In that case, the Federal Court held that the appeal against the substituted Respondents could only be considered as filed on the day when they were substituted.  Since this occurred after the expiration of the limitation period, the appeal was deemed out of time.

(k)  Furthermore, when the Tan Guan Seng case was decided, the applicable civil procedure Rules were the Rules of the Supreme Court 1957 (LN 321/1951) (RSC).  Specifically, Order 59 Rules 13(1) and 13(3) were in effect, which stated the following:

“13(1) Where under any written law an appeal lies from any decision of any person or body of persons to the High Court or to the Supreme Court such appeal shall be made to the High Court in the State where the decision was given by motion setting out the grounds of appeal, supported by affidavit and, if the Court so directs at the hearing, by oral evidence.

…

 (3) Unless otherwise provided by any written law, notice of the motion shall be served on the Respondent in such appeal or where the Respondent is a body of persons, on the secretary, registrar or such other officer of that body of persons.”

(l)  However, the provisions of Order 59 Rules 13(1) and 13(3) RSC were not referred to the Federal Court.  The Federal Court only addressed Order 16 Rules 11 RSC.

(m)  Hence, in the present case, the Court of Appeal was of the view that if the Federal Court had referred to Order 59 Rules 13(1) and 13(2) of the RSC, then the Federal Court might have reached a different conclusion, as similar to Court of Appeal’s view of the corresponding provisions of Order 55A Rules 1(1) and 1(4) of the ROC.

(n)  In conclusion, the Court decided that Order 55A Rules 1(1) and 1 (4) of ROC must be read together.

(o)  The Court held that Order 55A of ROC clearly provides for the decision maker (other than the interested party) to be the Respondent to the appeal.

(p)  Order 55A Rules 1(1) of ROC specifies that an appeal can be made to the High Court from any decision made by an individual or body.  In contrast, Order 55A Rules 1(4) of ROC outlines the requirement for the originating summons to be served on the Respondent in the appeal.  In the case where the Respondent is a body of persons, it should be served on the secretary, registrar, or another official representing that body of persons.

(q)  It stands to reason that the decision-maker is served with the originating summons in this context since the Appellants’ appeal concerns his decision.  In the process, the Courts had the duty to supervise the decision-maker’s decision to ensure that he did not commit errors of law in coming to his decision.

(r)   Likewise, there are numerous instances in judicial review applications where it is customary to include the decision maker as a party to the legal proceedings.  Therefore, citing the decision maker as a party to the action is not an exceptional or isolated practice; on the contrary, it is quite common.

(s)   The Court of Appeal decided that it was proper for the First Respondent who was the decision maker to be made as Respondent to an appeal to the High Court against his own decision.

2. In addition, under the principle of stare decisis, the lower court is bound to follow the decision on a point that constitutes the ratio decidendi of a superior court.

3. In order for a previous decision to be binding on later cases, it must be issued by a court of superior jurisdiction and the prior decision must address a similar legal issues or questions and/or factual situation with the present dispute.