MINISTER OF FINANCE GOVERNMENT OF SABAH V PETROJASA SDN BHD DAN 1 LAGI

1 MINISTER OF FINANCE, GOVERNMENT OF SABAH v. PETROJASA SDN BHD FEDERAL COURT, PUTRAJAYA ABDUL HAMID MOHAMAD, CJ; ARIFFIN ZAKARIA, FCJ; HASHIM YUSOFF, FCJ CIVIL APPEAL NO. 01-5-2007(S) 2 JULY 2008 [2008] 5 CLJ 305 CIVIL PROCEDURE: Government proceedings - Enforcement of judgment - Monetary judgment against Government - Certificate obtained under s. 33 Government Proceedings Act 1956 - Default by government to pay judgment debt after being served with certificate under s. 33 - Section 33(3) creates statutory duty on part of Government to pay amount certified - Judicial review proceedings may lie against government to compel payment of judgment sum certified in certificate issued under s. 33 - Order of mandamus issued against government to enforce payment of monetary judgment - Section 25 and para 1 of Schedule to Courts of Judicature Act 1964 grants jurisdiction for issue of mandamus against government CIVIL PROCEDURE : Execution - Government assets - Default by government to pay judgment debt after being served with certificate under s. 33 Government Proceedings Act 1956 - Order of mandamus issued against Government to enforce payment of monetary judgment - Section 25 and para 1 of Schedule to Courts of Judicature Act 1964 grants jurisdiction for issue of mandamus ADMINISTRATIVE LAW : Judicial remedies - Judicial review - Whether judicial review proceedings may lie against Government - Executive arms of Government are amenable to judicial review proceedings - Mandamus issued against Government to enforce payment of judgment debt by Government - Section 25 and para 1 of Schedule to Courts of Judicature Act 1964 The respondent sued the State Government of Sabah ("the State Government") for breach of an agreement entered into between them. Judgment was obtained by the respondent and a certificate under s. 33(3) of the Government Proceeding Act 1956 ("the GPA") was issued by the Deputy Registrar of the High Court ordering the State Government to pay the respondent damages in the sum of RM6,163,497.44 with interests. The certificate was duly served on the Chambers of State Attorney General and State Secretary of Sabah but the State Government failed to pay up the said sum. The respondent then filed this application for an order of mandamus pursuant to O. 53 of the Rules of the High Court 1980 ("RHC") . The High Court dismissed the respondent's application. On appeal to the Court of Appeal, the appeal was allowed. Leave was granted to the appellant to ap peal to the Federal Court on the question whether judicial review proceedings may be taken against the appellant, to compel payment of a judgment sum as certified in the certificate issued under s. 33(1) of the GPA . The appellant contended that judicial review does not lie against the appellant to enforce payment of a judgment sum for to allow such an application would tantamount to allowing enforcement proceeding to be taken against the State Government through the back door. 2 Held (dismissing the appeal with costs) Per Abdul Hamid Mohamad CJ: (1) The effect of s. 33 GPA and O. 73 r. 12(1) of the RHC is that, the only method of enforcing a monetary judgment against a Government is by obtaining a certificate. Section 44 of the Specific Relief Act 1950 ('SRA') does not empower the court to make an order provided therein against the appellant. But, para 1 of the Schedule to the Courts of Judicature Act 1964 ('CJA'), being additional powers, can only be more than, not limited to, what has already been provided by other laws. It is not correct to read s. 25(2) of the CJA as subject to or limited to what are provided by GPA or SRA. (paras 26 & 28) (2)Mandamus may issue for the purpose of enforcing the right of a person who has been deprived of his property not in accordance with law. By not paying the judgment debt, clearly the State Government of Sabah had d eprived the respondent of its property contrary to law. (para 33) Bahasa MalaysiaTranslation Of Headnotes Responden telah menyaman Kerajaan Negeri Sabah ("Kerajaan Negeri") ke rana pelanggaran kontrak yang dimeterai di antara mereka. Penghakiman telah diperolehi oleh responden dan satu sijil di bawah s. 33(3) Akta Prosiding Kerajaan 1956 ("GPA") telah dikeluarkan oleh Timbalan Pendaftar Mahkamah Tinggi memerintahkan Kerajaan Negeri membayar kepada responden gantirugi sebanyak RM6,163,497.44 beserta dengan f aedah. Sijil telah diserah dengan sewajarnya kepada Pejabat Peguam Negeri dan Setiausaha Kerajaan Negeri tetapi Kerajaan Negeri telah gagal membayar jumlah tersebut. Responden kemudian memfailkan permohonan ini untuk satu perintah mandamus di bawah A. 53 Kaedah -Kaedah Mahkamah Tinggi 1980 ("RHC"). Mahkamah Tinggi menolak permohonan responden. Ekoran rayuan ke Mahkamah Rayuan, rayuan telah dibenarkan. Kebenaran kemudian telah diberi kepada perayu untuk merayu ke Mahkamah Persekutuan atas persoalan sama ada prosiding semakan kehakiman boleh diambil terhadap perayu, bagi memaksa pembayara n wang penghakiman seperti yang disahkan oleh sijil yang dikeluarkan di bawah s. 33(1) GPA . Perayu berhujah bahawa semakan kehakiman tidak boleh diambil terhadap perayu bagi melaksanakan pembayaran wang penghakiman kerana membenarkan permohonan sedemikian bererti membenarkan prosiding pelaksanaan dibuat terhadap Kerajaan Negeri melalu i pintu belakang. Diputuskan (menolak rayuan dengan kos) Oleh Abdul Hamid Mohamad KHN: (1) Kesan s. 33 GPA dan A. 73 k. 12(1) RHC adalah bahawa, satu -satunya cara untuk menguatkuasakan penghakiman kewangan terhadap Kerajaan adalah dengan cara mendapatkan sijil. Seksyen 44 Akta Relif Spesifik 1950 ('SRA') tidak memberi kuasa kepada mahkamah untuk membuat perintah yang diperuntukkan di situ terhadap perayu. Tetapi, perenggan 1 Jadual kepada Akta Mahkamah Kehakiman 1964 ('CJA') , sebagai kuasa -kuasa tambahan, semestinya menjadi tambahan, dan tidak tertakluk, kepada kuas a-kuasa yang sudah pun diperuntukkan oleh undang -undang lain. Adalah tidak betul untuk 3 membaca s. 25(2) CJA sebagai tertakluk atau terhad kepada apa yang diperuntukkan di dalam GPA atau SRA. (2)Mandamus boleh dikeluarkan bagi maksud menguatkuasakan hak seseorang yang telah diambil hartanya dengan cara tidak mengikut undang - undang. Dengan tidak membayar hutang penghakiman, Kerajaan Negeri Sabah jelas telah mengambil harta responden secara yang bertentangan dengan undang-undang. [Appeal from Court of Appeal, Civil Appeal No: S-01-56-2006] Case(s) referred to: Abdul Ghani Ali & Ors v. PP & Another Appeal [2001] 3 CLJ 769 FC (refd) Council of Civil Service Unions v. Minister for the Civil Service [1984] 3 All ER 935 (refd) Franklin v. The Queen (No 2) [1974] QB 205 (refd) Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan & Other Appeals [1997] 1 CLJ 665 CA (refd) In re M (AP) [1993] 3 CLJ 567 (refd) Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ 81 FC (refd) Loh Kooi Choon v. Government of Malaysia [1975] 1 LNS 90 FC (refd) Loh Wai Kong v. Government of Malaysia & Ors [1978] 1 LNS 106 HC (refd) Metro Pacific Sdn Bhd v. Ketua Pengarah Kesatuan Sekerja & Anor [2002] 8 CLJ 660 HC (refd) Ng Kim Moi & Ors v. Pentadbir Tanah Daerah, Seremban, Negeri Sembilan Darul Khusus [2004] 3 CLJ 131 CA (refd) Olive Casey Jaundoo v. Attorney-General of Guyana [1971] AC 972 (refd) Petrojasa Sdn Bhd v. Minister of Finance, Government of Sabah [2006] 6 CLJ 232 HC (refd) R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147 FC (refd) Reg v. Secretary of State for Transport, Ex parte Factortame Ltd [1990] 2 AC 85 (refd) Sabil Mulia (M) Sdn Bhd v. Pengarah Hospital Tengku Ampuan Rahimah & Ors [2005] 2 CLJ 122 CA (refd) 4 Teh Cheng Poh v. PP [1978] 1 LNS 202 PC (refd) Zainal Abidin Hj Abdul Rahman v. Century Hotel Sdn Bhd [1982] 1 LNS 34 FC (refd) Legislation referred to: Courts of Judicature Act 1964, s. 25(1), (2) Federal Constitution, arts. 13, 29(2), 32(1), 132(1), (3), 150(1) Government Proceedings Act 1956, ss. 2, 29, 33(1), (2), (3), (4) Rules of the High Court 1980, O. 45, O. 46, O. 47, O. 48, O. 49, O. 50, O. 51A, O. 52, O. 53, O. 72 r. 12, O. 73 r. 12(1), (2) Specific Relief Act 1950, s. 44(1), (2)(b) Rules of Supreme Court [UK], O. 48, O. 77 r. 15(1) Other source(s) referred to: Other source(s) refferred to: HWR Wade & CF Forsyth, Administrative Law, 7th edn, p 836 Counsel: For the appellant - Roderic Fernandez (Mohd Hanafiah Mohd Kassim with him); State Attorney-General's Chambers For the respondent - Chen Kok On; M/s Peter Lo & Co Reported by Amutha Suppayah Case History: High Court :[2006] 6 CLJ 232 JUDGMENT Abdul Hamid Mohamad CJ: 5 [1] I have had the privilege of reading the judgment of Arifin Zakaria FCJ and I agree with his conclusion. However, I would like to make a few points. As he has narrated the facts and reproduced the relevant provisions of the law under consideration, I shall not repeat nor reproduce the same, except where it is absolutely necessary. [2] The respondent had obtained a monet ary judgment at the High Court at Sandakan against the State Government of Sabah. The respondent then applied for and obtained a certificate of judgment sum and order for costs pursuant to s. 33(1) of the Government Proceedings Act 1956 ("GPA"). The party named in the certificate is the State Government of Sabah. As the State Governme nt of Sabah did not make payment as required by the certificate, the respondent filed an ex parte application for leave for judicial review for an order of mandamus against the appellant, the Minister of Finance, Government of Sabah, to pay the judgment sum in accordance with said certificate. Leave was granted. The respondent then filed the substantive application for judicial review for the said order. The High Court dismissed the application. On appeal to the Court of Appeal, the court allowed the appeal of the respondent. The appellant, then obtained leave to appeal to this court, on only one issue ie,: Given that s. 33(3), Government Proceedings Act 1956 imposes a statutory obligation on the Government of Sabah to pay according to a Certificate issued under s. 33(1), Government Proceedings Act 1956 , the issue is whether Judicial Review proceedings may be taken against the Minister of Finance, Government of Sabah to compel the payment according to a Certificate issued under s. 33(1), Government Proceedings Act 1956 for a judgment for a monetary sum obtained against the State Government of Sabah. Provided that in the event the Federal Court decides that the Minister of Finance, Government of Sabah is not the proper party in these proceedings the Applicant consents that the proper person be joined in these proceedings. [3] Now, let us look at the overall scheme of the law on the issue. [4]Section 33(1) GPA provides that, in brief and in relation to the facts of this case, where in any civil proceeding against the Government, any order is made by any court in favour of any person against the Government, the court shall issue to the person a certificate. [5] Sub-section (3) provides that where the order (ie, the certificate) provides for the payment of money, the government shall pay to the person entitled the amount stated in the certificate. [6] Sub-section (4) then provides that "Save as aforesaid no execution or attachment or process in the nature of attachment, shall be issued out of any court for enforcing payment by the Government of any such money or costs as aforesaid". [7] In other words, the only method provided by GPA to recover a judgment sum is by the issue of the certificate. Ordinary execution proceedings are not available. [8] This is further strengthened by th e provisions of O. 73 of the Rules of the High Court 1980 ("RHC 1980"). Rule 12(1) provides: (1) Nothing in Orders 45 to 52 shall apply in respect of any order against the 6 Government. [9] Sub-rule (2), though not an issue here, makes specific reference of s. 33(1) GPA. [10] It must be noted that Orders 45 to 52 are orders pertaining to Enforcement of Judgments and Orders (O. 45), Writs of Execution: General ( O. 46), Writs of Seizure and Sale ( O. 47), Examination of Judgment Debtor, etc ( O. 48 ), Garnishee Proceedings ( O. 49 ), Changing Orders, Stop Orders, etc ( O. 50 ), Receivers: Equitable Execution ( O. 51 ), Rateable Distribution (O. 51A) and Committal (O. 52). [11] In other words, as against a Government one cannot resort to any of the procedures provided by Orders 45 to 52. The only procedure allowed is as provided by s. 33 GPA. [12] We now come to the question: does mandamus lie in this situation? [13]Section 44 of the Specific Relief Act 1950 (SRA) provides, in brief and in relation to the facts of this case, that a judge may make an order requiring any specific act to be done "by any person holding a public office". However, sub -s. (2) provides that the section does not authorize a judge: (b) to make any order on any servant of any Government in Malaysia, as such, merely to enforce the satisfaction of a claim upon the Government; or (c) to make any order which is otherwise expressly excluded by any law for the time being in force. [14] The question is whether this provisio n prohibits the issue of mandamus. This section speaks of an order that may be made against "any person holding a public office". After that it qualifies that an order cannot be made in respect of, inter alia, (b) and (c). [15] The answer to the question d epends on, first, who is a "person holding a public office"? In Loh Wai Kong v Government of Malaysia & Ors [1978] 1 LNS 106, Gunn Chit Tuan J (as he then was) held: However, according to sub-section (1) of s. 44 of the Specific Relief Act 1956, an order can only be made against any person holding a public office... According to s. 3 of the Interpretation Act, 1967, "public officer" means office in any of the p ublic services, and "public services" means the public services mentioned in art. 132(1) of the Federal Constitution . Therefore, 1 and 2 respondent in this case, namely the Government of Malaysia and the Menteri Hal Ehwal Dalam Negeri, Malaysia who are not persons holding a public office within the meaning of s. 44 of the Specific Relief Act have, in my view, been wrongly cited as respondents. [16] In other words, since the Government of Malaysia and the Minister of Home Affairs are not "persons holding a public office", an order pursuant to s. 44 of the SRA cannot be issued against them. Regarding the other two respondents, ie, the Ketua Pejabat Imigresen, Pulau Pinang and the Pegawai Paspot, Pulau Pinang even though they were held to be pe rsons holding a public office, nevertheless the order prayed for was refused by the learned judge because the applicant had failed to fulfill the five conditions set out in the proviso to sub-s. 7 (1) of s. 44 SRA. [17] For purpose of record, in spite of the judgment of the High Court was in favour of the respondents, the respondents (i e, the Government of Malaysia and others) appealed to the Federal Court and, as stated by Suffian L.P. who delivered the judgment of the five member court, because the learned judge "in the course of his judgment made certain observations on the law which the Government took objection." While the Federal Court "allowed" the appeal and dismissed the cross appeal, the net effect of the judgment of the Federal Court is the same as that of the High Court: the application was dismissed. However, it should be not ed that the Federal Court made no reference whatsoever to the interpretation of the words "any person holding a public office." [18] The learned judge of the High Court in the instant case (Linton Albert J) followed the view of Gunn Chit Tuan J and, on that ground dismissed the respondent's application. The Court of Appeal disagreed with the learned judge on this point. The Court of Ap peal in a judgment written by James Foong JCA said: This, in our view, is a narrow perception of s. 44(1) Specific Relief Act . If adopted it would jeopardize the powers of the Court to order any Minister of the Government to do or forbear from doing the many administrative acts required of such a person in the Government. This would t antamount to practically saying that s. 44(1) of the Specific Relief Act does not apply to a Minister in the Government. Perhaps, the learned trial Judge had overlooked the great number of authorities where the Courts had directed a Minister of the Government to perform or forbear from performing certain specific act. A case in point is that of this Court in Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan & Another Appeal [1997] 1 CLJ 686 ; [1996] 1 MLJ 481, where the order of the Court was directed at the Minister of Labour & Manpower involved in an industrial relation dispute. In th is respect, we are of the opinion that the learned trial Judge has erred in his ruling on this point. To us, a Minister of a Government in Malaysia is a person holding a public office under the provision of s. 44(1) of the Specific Relief Act. [19] With respect, I do not agree with the approach and the interpretation given by the Cour t of Appeal. If words used in statutes are defined, it is that meaning that the court should give to them. It is not right for the court, purporting to give a "wider interpretation", to give a meaning different from what is defined by statute. [20] SPA does not define the words "public office". However, "public office" is defined by the Interpretation Acts 1948 and 1967 (Act 388) ("IA") as follows: "public office" means an office in any of the public services; "public officer" is defined as follows: "public officer" means a person lawfully holding, acting in or exercising the functions of a public office. [21] What is "public services"? Art. 132(1) of the Constitution provides: 8 132(1) For the purposes of this Constitution, the public services are: (a) the armed forces (b) the judicial and legal service (c) the general public service of the Federation (d) the police force (e) (Repealed) (f) the joint public services mentioned in Article 133 (g) the public service of each State; and (h) the education service. [22] Clause (3) provides: (3) The public services shall not be taken to comprise: (a) the office of any member of the administration in the Federation or a State; or "Member of the administration" is defined in Article 160 as follows: "Member of the administration" means, in relation to the Federation, a person holding office as Minister, Deputy Minister, Parliamentary Secretary and, in relation to a State, a person holding a corresponding office in the State or holding office as a member (other than an official member) of the Executive Council. [23] It is clear that the Minister of Finance, Government of Sabah is "a member of the administration" but not a "person holding public office." What it means, in relation to s. 44 SRA is that s. 44 SRA is not applicable to the appellant, meaning that an order under s. 44 SRA cannot be issued against the appellant. To that extent the High Court judge Gunn Chit Tuan J, was right in Loh Wai Kong (supra) regarding the effect of s. 44 SRA on the Government of Malaysia and the Minister of Home Affairs. In my view the learned High Court judge in the instant appeal was right in following Loh Wai Kong (supra) and the Court of Appeal was wrong in its interpretation of s. 44 SRA. [24] Since s. 44 SRA does not apply to the appellant, proviso (b) and (c) become irrelevant. [25] That being the case, was the High Court judge right when he held that the "judgment obtained by the (respondent) cannot, be enforced by mandamus against the Ministe r of Finance of the Government of the State of Sabah"? He did so held because, in his view "... Section 33 GPA and s. 44 SRA clearly restrict the wide powers co nferred by para. 1 of the Schedule to the CJA which must be read together with s. 25."