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Issue #35/2019 29 August 2019

New This Week Case(s) of the Week BELLAJADE SDN BHD v. CME GROUP BHD & ANOTHER APPLICATION [2019] 8 CLJ 1 Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2019 Volume 8 (Part 1) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

BELLAJADE SDN BHD v. CME GROUP BHD & ANOTHER APPLICATION [2019] 8 CLJ 1
FEDERAL COURT, PUTRAJAYA
DAVID WONG DAK WAH CJ (SABAH & SARAWAK), ROHANA YUSUF FCJ, MOHD ZAWAWI SALLEH FCJ, TENGKU MAIMUN TUAN MAT FCJ, NALLINI PATHMANATHAN FCJ
[CIVIL APPLICATIONS NO: 08(RS)-10-10-2018(W) & 08(RS)-11-10-2018(W)]
15 JULY 2019

A judge who has resigned holds no judicial post and so cannot pronounce any judgment post his retirement. A judgment so pronounced cannot at all be featured, relied upon, concurred with or adopted as it gives rise to the inference that the ‘mind of the court’ is that of a judge who has lost his jurisdiction.

CIVIL PROCEDURE: Courts – Federal Court – Coram failure – Applicant applied under r. 137 of Rules of Federal Court 1995 to review and set aside entire judgment of Federal Court – Delivery and pronouncement of judgment after one of five judges resigned – Three of majority judges purported to concur and adopt judgment of resigned judge – Whether s. 78 of Courts of Judicature Act 1964 prohibits retired or resigned judge from participating in court proceedings – Whether judgment of resigned judge did not exist and could not exist as there was no such judge in coram – Whether majority view of three judges must be formed through their own views – Whether phrase ‘any other cause’ in s. 78 could cover judges who are no longer serving judges – Whether judgment rendered invalid, contrary to law, void and of no effect

CIVIL PROCEDURE: Judgment – Federal Court – Coram failure – Applicant applied under r. 137 of Rules of Federal Court 1995 to review and set aside entire judgment – Delivery and pronouncement of judgment after one of five judges resigned – Three of majority judges purported to concur and adopt judgment of resigned judge – Whether s. 78 of Courts of Judicature Act 1964 prohibits retired or resigned judge from participating in court proceedings – Whether judgment of resigned judge did not exist and could not exist as there was no such judge in coram – Whether majority view of three judges must be formed through their own views – Whether phrase ‘any other cause’ in s. 78 could cover judges who are no longer serving judges – Whether judgment rendered invalid, contrary to law, void and of no effect

CONSTITUTIONAL LAW: Courts - Federal Court – Coram failure – Applicant applied under r. 137 of Rules of Federal Court 1995 to review and set aside entire judgment of Federal Court – Delivery and pronouncement of judgment after one of five judges resigned – Three of majority judges purported to concur and adopt judgment of resigned judge – Whether s. 78 of Courts of Judicature Act 1964 prohibits retired or resigned judge from participating in proceedings of court – Whether judgment of resigned judge did not exist and could not exist as there was no such judge in coram – Whether majority view of three judges must be formed through their own views – Whether phrase ‘any other cause’ in s. 78 could cover judges who are no longer serving judges – Whether judgment rendered invalid, contrary to law, void and of no effect

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1. Aqmal Dakhirrudin v. Azhar Ahmad & Anor [2019] 1 LNS 492 (CA) overruling the High Court case of Malaysian Motor Insurance Pool v. Azhar Ahmad & Anor [Originating Summons No: BA-24-51-01/2017]

2. Ng Kian Seng lwn. PP [2018] 1 LNS 1384 (CA) affirming the High Court case of PP v Ng Kian Seng [Perbicaraan Jenayah No: 45B-07-05/2013]

Legal Network Series

[2018] 1 LNS 287	LAKSHMI NARASHIMMAN SUDARRAJAN v. PP CRIMINAL LAW: Dangerous Drugs Act 1952 - s. 39B - Offence of trafficking in dangerous drugs - Ketamine found in handle of accused's trolley bag - Accused found in custody and control - Whether knowledge of drugs must be established - Whether knowledge may be presumed - Dangerous Drugs Act 1952, s. 37(d) CRIMINAL LAW: Dangerous Drugs Act 1952 - s. 39B - Offence of trafficking in dangerous drugs - Ketamine found in handle of accused's trolley bag - Accused found in custody and control - Whether necessary to make affirmative finding on possession before invoking presumption of trafficking - Whether necessary to invoke presumption of trafficking - Drugs being moved/carried from India to Malaysia - Whether act of 'carrying' falls within definition of trafficking - Whether act of trafficking proved - Dangerous Drugs Act 1952, s. 2 CRIMINAL PROCEDURE: Interpretation of evidence - Accused gave evidence in English - Witnesses testified in Bahasa Malaysia - Whether evidence was interpreted to the accused in English - Criminal Procedure Code, s. 270 For the appellant - S Sundarajan & Nur Hayati Omar; M/s Sundarajan & Associates For the respondent - Mohd Zain Ibrahim, Timbalan Pendakwa Raya; Jabatan Peguam Negara
[2018] 1 LNS 484	AIG MALAYSIA INSURANCE BERHAD v. PERSATUAN AUTOMOBIL MALAYSIA & ORS INSURANCE: Agency - Recovery of outstanding premiums - Action against insurance agent - Refusal to effect payment of premiums - Absence of contemporaneous document from agent disputing reminders issued by plaintiff' on outstanding premiums - Whether agent by his conduct accepted that plaintiff was entitled to recover outstanding premiums as itemised in reminders - Whether plaintiff was entitled to late payment interest - Whether officer bearers should be jointly and severally made liable CONTRACT: Misrepresentation - Fraudulent misrepresentation - Marketing agreement - Parties agreed to disregard all prior representations or negotiation in agreement - Whether alleged representation could give rise to a claim for fraudulent misrepresentation CONTRACT: Termination - Wrongful termination - Marketing agreement - Failure to meet target - Whether plaintiff was entitled to terminate marketing agreement by reason of material breach - Whether there was material breach justifying termination For the plaintiff - Lai Wai Fong; M/s Shearn Delamore & Co For the defendant - Andrew Suresh; M/s Samrith Sanjiv & Partners
[2018] 1 LNS 649	BENJAMIN CHINEDU v. PP CRIMINAL LAW: Dangerous Drugs Act 1952 - s. 39B - Trafficking - Identity of drugs - Whether exhibits marked properly - Whether there were discrepancies in the marking of exhibits - Whether exhibits produced and identified by prosecution witness in court - Whether there were doubts with regard to the identity of the drugs exhibits CRIMINAL LAW: Dangerous Drugs Act 1952 - s. 39B - Trafficking - Whether accused had exclusive possession - Black bag containing drugs was not under lock and key - Impugned drugs concealed and dumped underneath the inside layer of black bag containing drugs - Whether drugs were planted during transit - Whether issue of exclusivity was put to the prosecution witness CRIMINAL LAW: Dangerous Drugs Act 1952 - s. 39B - Trafficking - Whether accused had knowledge of impugned drugs - Defence of innocent carrier - Application of doctrine of willful blindness - Doctrine of willful blindness equivalent to actual knowledge - Whether the other person was real or fictitious - Whether that person was the real trafficker - Failure of prosecution to investigate - Whether information pertaining to real trafficker furnished to prosecution For the appellant - S Ravichandran, A Kanesvaran; M/s Seah Balan Ravi & Co For the respondent - Faizah Mohd Salleh, Deputy Public Prosecutor; Attorney General's Chambers
[2018] 1 LNS 585	RE: NG HOW KONG PERWARISAN: Surat kuasa mentadbir - Harta pusaka - Perlantikan pentadbir - Bantahan oleh seorang waris - Majoriti waris kadim menyokong perlantikan pemohon sebagai pentadbir - Sama ada pemohon merupakan orang yang paling sesuai untuk dilantik sebagai pentadbir - Sama ada pemohon boleh mendapatkan geran untuk surat pentadbiran tanpa persetujuan dan afidavit penolakan oleh waris yang membantah perlantikkannya - Sama ada penafian hak pemohon akan mendatangkan ketidakadilan Norhamizah Mustafa; T/n Rosni, Francis Tan & Ho Vernon Jude Samuel; T/n Shui-Tai
[2018] 1 LNS 546	AMINUDIN HJ SARBIN lwn. PENTADBIR TANAH PONTIAN & SATU LAGI UNDANG-UNDANG TANAH: Kaveat - Permohonan untuk perlanjutan - Pertimbangan Mahkamah - Sama ada plaintif mempunyai kepentingan boleh kaveat - Sama ada Mahkamah hanya akan mempertimbangkan alasan-alasan yang dinyatakan di dalam Borang 19B dan surat akuan atau dalam afidavit - Sama ada pemilik yang telah dilucutkan haknya ke atas sesuatu tanah dengan cara pemalsuan dan penipuan instrumen adalah pihak yang mempunyai kepentingan boleh kaveat Bagi pihak plaintif - Haris Faizal Jalil; T/n Chor Pee Anwarul & Co Bagi pihak defendan pertama - Nurul Izalina Rajaai; Peguam Persekutuan Bagi pihak defendan kedua - Mohd Ashri Rais; T/n Mohd Ashri Rais & Co

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CLJ 2019 Volume 8 (Part 1)

A judge who has resigned holds no judicial post and so cannot pronounce any judgment post his retirement. A judgment so pronounced cannot at all be featured, relied upon, concurred with or adopted as it gives rise to the inference that the ‘mind of the court’ is that of a judge who has lost his jurisdiction.
Bellajade Sdn Bhd v. CME Group Bhd & Another Application [2019] 8 CLJ 1 [FC]

• SUBJECT
• CORAM
• COUNSEL

The approval of the State Authority is required for the construction of transmission lines on land pursuant to s. 12 of the Electricity Supply Act 1990; but, in the absence of express words requiring an approval in writing, a plain and ordinary construction would permit both express and implied approvals.
Fairise Odyssey (M) Sdn Bhd v. Tenaga Nasional Bhd [2019] 8 CLJ 20 [FC]

• SUBJECT
• CORAM
• COUNSEL

Harta yang disita mesti dipulangkan kembali jika tiada pertuduhan dikemukakan untuk kesalahan di bawah Akta Pencegahan Pengubahan Wang Haram, Pencegahan Pembiayaan Keganasan dan Hasil Daripada Aktiviti Haram 2001 dalam tempoh 12 bulan dari tarikh pengeluaran perintah pembekuan dan penyitaan; seseorang itu dikatakan ‘dipertuduhkan’ apabila mahkamah mengambil perhatian terhadap kesalahan berkenaan
Raqeem Rizqin Enterprise & Yang Lain lwn. Ketua Polis Negara & Satu Lagi [2019] 8 CLJ 41 [FC]

• SUBJECT
• CORAM
• COUNSEL

In drugs trafficking cases where the drugs are found concealed, if a person deliberately shuts his eyes to the obvious because he does not want to know, he is taken to know. It follows that an accused who has the opportunity of examining the drugs-concealing bag that she is carrying which is so obviously damaged on account of the concealment, but chooses not to do so, cannot plead 'innocent carrier' as a defence, as an inference arises that she, as the carrier, has knowledge of the drugs.
Tran Thi Tat v. PP [2019] 8 CLJ 69 [CA]

• SUBJECT
• CORAM
• COUNSEL

It is not legally possible for the accused in a murder case to be given an outright discharge amounting to acquittal even if his right to private defence has been established on a balance of probability. The interpretation of s. 300 read with s. 304(a) of the Penal Code means that the successful raising of any of the four Exceptions to s. 300 would render the charge of murder unsustainable but instead is proof beyond reasonable doubt of a charge under culpable homicide not amounting to murder.
Yong Kim Nyien v. PP [2019] 8 CLJ 85 [CA]

• SUBJECT
• CORAM
• COUNSEL

Having declared the Ahmadiyya Muslim Jama’at religious group as non-Muslims, the state Islamic religious authorities could not continue to dictate the manner in which the Ahmadis carry out their religious practices or restrict the places in which they should perform their prayers or religious rites.
Maqsood Ahmad & Ors v. Ketua Pegawai Penguatkuasa Agama & Ors [2019] 8 CLJ 96 [HC]

• SUBJECT
• CORAM
• COUNSEL

A homebuyer who has not been accorded any right to be heard before the Minister makes his decision to extend time for delivery of vacant possession, may have the Minister’s decision declared illegal, null and void and may also be entitled to liquidated and ascertained damages.
Southkey City Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor [2019] 8 CLJ 139 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. RHB BANK BERHAD v. KESATUAN EKSEKUTIF RHB BANK BERHAD*
   A CASE NOTE ^{[Read excerpt]}
   by WONG KIAN JUN [2019] 1 LNS(A) cvii

[2019] 1 LNS(A) cvii



MALAYSIA

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RHB BANK BERHAD v. KESATUAN EKSEKUTIF RHB BANK BERHAD*
A CASE NOTE

by
WONG KIAN JUN

In this article, we examine the recent decision of the High Court in RHB Bank Berhad v. Kesatuan Eksekutif RHB Bank Bhd^[1] ("Union") which had cleared some uncertainties relating to allegations of union busting and/or discriminatory practices raised by the Union.

The matter arose from a complaint lodged by the Union pursuant to section 8(1) of the Industrial Relations Act 1967 (“IRA”) which was subsequently referred to the Industrial Court for determination.

The Union alleged that RHB Bank had engaged in union busting and discriminatory activities pursuant to a job grading and salary structure review exercise conducted by RHB Bank at the material time. The primary ground relied upon by the Union was that there were instances where the junior executive in the lower grade received a higher salary adjustment or increment compared to the senior executive in the higher grade.

. . .

* Published with kind permission of M/s Shearn Delamore & Co.

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2. ROLE OF ARBITRATION IN RESOLUTION OF INTERNATIONAL DISPUTES* ^{[Read excerpt]}
   by ARUN KASI** [2019] 1 LNS(A) cviii

[2019] 1 LNS(A) cviii



MALAYSIA

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ROLE OF ARBITRATION IN RESOLUTION OF INTERNATIONAL DISPUTES*

by
ARUN KASI**

A. Introduction to Arbitration

Arbitration is an alternative dispute resolution mechanism. It is alternative to the system of dispute resolution by courts.

There are a number of benefits in choosing arbitration as the mode of dispute resolution, particularly in international disputes. Some of such benefits are as follows:

1) An award made by an arbitral tribunal, i.e. the arbitration award, is enforceable in more than 150 countries. This is not so in the case of orders made by courts of law. A court judgment may only be enforced in the country where the judgment was made. Sometimes, it may be enforced in a few other countries, where there is a reciprocity arrangement between the two countries.

. . .

* © Arun Kasi, 2019. This article may be reproduced for educational and other reference purposes with acknowledgments to the author.

** Advocate & Solicitor of High Court of Malaya; Fellow of Chartered Institute of Arbitrators, London.

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3. ENHANCING CORPORATE GOVERNANCE WITH ALTERNATIVE DISPUTE RESOLUTION IN NIGERIA ^{[Read excerpt]}
   by Olufemi Abifarin* E.M. Akinseye** [2019] 1 LNS(A) cix

[2019] 1 LNS(A) cix



NIGERIA

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ENHANCING CORPORATE GOVERNANCE WITH ALTERNATIVE DISPUTE RESOLUTION IN NIGERIA

by
Olufemi Abifarin*
E.M. Akinseye**

ABSTRACT

Corporate governance has never been this important in Nigeria's history regarding the management of private and public corporations. Prior to the phased privatization of public enterprises, both the public and private corporations were touted as engines of growth by the successive governments in Nigeria. The current administration considers the private sector as the foundation for accelerated growth and development of the economy and this has re-awakened a new interest in corporate governance that will engender sustainable growth and development. This is reflected in the current move to harmonize various codes of corporate governance in Nigeria. This paper examines the role that Alternative Dispute Resolution can play in enhancing good corporate governance in Nigeria.

. . .

* College of law Joseph Ayo Babalola University, Ikeji Arakeji Osun State, Nigeria.

** Dept of Business University, Ikeji Arakeji Osun State, Nigeria.

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