DATO' SERI ANWAR IBRAHIM v. TUN DR MAHATHIR MOHAMAD COURT OF APPEAL ...

26 Pages·2010·0.13 MB·English

444 Current Law Journal [2010] 1 CLJ
DATO’ SERI ANWAR IBRAHIM A
v.
TUN DR MAHATHIR MOHAMAD
COURT OF APPEAL, PUTRAJAYA B
ABDUL MALIK ISHAK JCA
AZHAR MA’AH JCA
SYED AHMAD HELMY JCA
[CIVIL APPEAL NO: W-02-609-2007]
2 NOVEMBER 2009 C
ADMINISTRATIVE LAW: Judicial proceedings - Courts - Mandatory
to use National language in courts - Memorandum of appeal filed in
English language incurably defective
D
CIVIL PROCEDURE: Appeal - Appeal to Court of Appeal - Defective
memorandum and record of appeal - Memorandum of appeal filed in
English language - Memorandum of appeal not signed by appellant’s
solicitors - Memorandum of appeal undated - Failure to file chronology
of events - Failure to attach proper index to Part “C” of record of appeal
E
- Documentary exhibits in record of appeal not separately indexed -
Memorandum and record of appeal defective - Appeal not properly
brought and therefore dismissed - Rules of the Court of Appeal 1994,
rr. 18(10), 101
CIVIL PROCEDURE: Appeal - Memorandum and record of appeal - F
Defective - Memorandum of appeal filed in English language -
Memorandum of appeal not signed by appellant’s solicitors -
Memorandum of appeal undated - Failure to file chronology of events -
Failure to attach proper index to Part “C” of record of appeal -
Documentary exhibits in record of appeal not separately indexed - G
Memorandum and record of appeal defective - Appeal not properly
brought before Court of Appeal
CONSTITUTIONAL LAW: National language - Use of National
language in courts - Mandatory to use National language in courts -
H
Memorandum of appeal filed in English language incurably defective -
Federal Constitution, art. 152 - National Language Act 1963/1967,
s. 8 - Interpretation Acts 1948 and 1967, s. 3
The appellant had sued the respondent for an alleged defamation.
I
The High Court had allowed the respondent’s application to strike
out the appellant’s writ of summons and statement of claim. The
appellant appealed against this decision. The respondent filed a
Dato’ Seri Anwar Ibrahim v.
[2010] 1 CLJ Tun Dr Mahathir Mohamad 445
A notice of motion (encl. 25a) seeking that the appellant’s record of
appeal be struck out and/or set aside pursuant to art. 152 of the
Federal Constitution and/or s. 8 of the National Language Acts
1963/1967 (‘Act 32’) and/or s. 3 of the Interpretation Acts 1948
and 1967 (‘Act 388’) and/or r. 101 of the Rules of the Court of
B Appeal 1994 (‘RCA’) and/or pursuant to the inherent jurisdiction
of this court. The respondent also claimed that the record of
appeal did not contain certain exhibits exhibited in one of the
respondent’s affidavit. The appellant on the other hand filed a
notice of motion (encl. 29a) seeking leave to file and to serve an
C additional appeal record containing the memorandum of appeal in
the Malay language.
Held (allowing encl. 25a and dismissing encl. 29a with costs)
Per Abdul Malik Ishak JCA:
D
(1) The absence of the memorandum of appeal in the National
Language rendered the appellant’s record of appeal incurably
defective and consequently, the appellant’s appeal must be
dismissed as there was no proper record of appeal before the
court. (para 48)
E
(2) The importance of the Malay Language as the national
language cannot be taken lightly. The mandatory provisions of
art. 152 of the Federal Constitution read together with s. 8
of Act 32 and s. 3 of Act 388 must be adhered to. It
F requires the appellant to file the memorandum of appeal in the
National Language. No other language will be entertained. The
failure of the appellant to do so amounted to a blatant breach
which compelled the court to conclude that no memorandum
of appeal had been filed at all. (paras 49 & 50)
G
(3) The purported memorandum of appeal in the English language
was also not signed by the appellant’s solicitors thereby
rendering it invalid. The purported memorandum of appeal in
the English language was also undated. This meant that the
purported memorandum of appeal was defective and invalid.
H
(paras 57, 58 & 59)
(4) The appellant’s failure to file the chronology of events in
contravention of r. 18(10) of the RCA as well as the Practice
Direction No. 3 of 1992 pointed to the conclusion that the
I
appellant’s appeal was not properly brought before the court
and therefore should be dismissed. (para 62)
446 Current Law Journal [2010] 1 CLJ
(5) The appellant also failed to attach a proper index to Part “C” A
of the record of appeal with the documentary exhibits not
separately indexed. The appellant had failed to comply with the
requirements of the Practice Direction No. 2 of 1985. Such
non-compliance was fatal and the record of appeal ought to
be struck out. (paras 64, 65 & 67) B
(6) The respondent’s counsel had alerted the appellant’s counsel
as to the proposed actions that would be taken if the exhibits
were not included in the appeal record. There was ample
opportunity for the appellant’s counsel to rectify the appeal
C
record. For the whole year of 2008, the appellant’s counsel
remained idle. The respondent’s counsel therefore did not
ambush the appellant’s counsel in respect of encl. 25a.
(para 71)
D
(7) Pursuant to O. 92 r. 4 of the RHC, the filing of the
memorandum of appeal in the English language constituted an
injustice to the respondent and it was, pure and simple, an
abuse of the process of the court. (para 76)
Bahasa Malaysia Translation Of Headnotes E
Perayu telah menyaman responden berkaitan satu dakwaan fitnah.
Mahkamah Tinggi telah membenarkan permohonan responden
untuk membatalkan writ saman dan penyata tuntutan perayu, dan
perayu merayu terhadap keputusan tersebut. Responden kemudian
F
memfailkan notis usul (lampiran 25a) memohon supaya rekod
rayuan perayu dibatalkan dan/atau diketepikan, berdasarkan fasal
152 Perlembagaan Persekutuan dan/atau s. 8 Akta-Akta Bahasa
Kebangsaan 1963/1967 (‘Akta 32’) dan/atau s. 3 Akta-Akta
Tafsiran 1948 dan 1967 (‘Akta 388’) dan/atau k. 101 Kaedah-
G
Kaedah Mahkamah Rayuan (‘KKMR’) dan/atau berasaskan
bidangkuasa semulajadi mahkamah. Responden juga menghujahkan
bahawa rekod rayuan tidak mengandungi eksibit-eksibit tertentu
yang dipamerkan dalam salah satu afidavit perayu. Perayu
membalas dengan memfail notis usul (lampiran 29a) memohon
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untuk memfail dan menyerahkan rekod rayuan tambahan yang
mengandungi memorandum rayuan dalam Bahasa Malaysia.
I
Dato’ Seri Anwar Ibrahim v.
[2010] 1 CLJ Tun Dr Mahathir Mohamad 447
A Diputuskan (membenarkan lampiran 25a dan menolak
lampiran 29a dengan kos):
Per Abdul Malik Ishak JCA:
(1) Ketiadaan memorandum rayuan dalam Bahasa Kebangsaan
telah menyebabkan rekod rayuan perayu menjadi cacat yang
B
tak dapat dipulihkan lagi. Oleh itu, rayuan perayu terpaksa
ditolak kerana tiada rekod rayuan yang teratur di hadapan
mahkamah.
(2) Soal peri mustahaknya Bahasa Melayu sebagai Bahasa
C
Kebangsaan tidak boleh dipandang ringan. Peruntukan
mandatori fasal 152 Perlembagaan Persekutuan dibaca bersama
s. 8 Akta 32 dan s. 3 Akta 388 adalah wajib dipatuhi. Ia
menuntut perayu supaya memfailkan memorandum rayuan
dalam Bahasa Kebangsaan. Penggunaan bahasa yang selainnya
D
adalah tidak dilayan. Kegagalan perayu berbuat demikian
adalah terang-terangan satu pelanggaran, dan mahkamah boleh
merumuskan bahawa tiada apa-apa memorandum rayuan telah
difailkan.
E (3) Memorandum rayuan dalam Bahasa Inggeris yang difailkan
tersebut tidak ditangani oleh peguamcara perayu, sekaligus
menjadikannya tidak sah. Memorandum rayuan berbahasa
Inggeris tersebut juga tidak bertarikh. Ini bermakna
memorandum rayuan tersebut adalah cacat dan tak sah.
F
(4) Kegagalan perayu memfailkan kronologi peristiwa-peristiwa dan
sekaligus melanggar kehendak k. 18(10) KKMR serta Arahan
Amalan No. 3 Tahun 1992 telah membangkitkan rumusan
bahawa rayuan tersebut tidak dikemukakan dengan teraturnya
di hadapan mahkamah dan kerana itu harus ditolak.
G
(5) Perayu gagal mengepilkan satu indeks yang teratur di Bahagian
“C” rekod rayuan berakibat eksibit-eksibit dokumentar telah
tidak diindekskan dengan secara yang berasingan. Perayu
dengan itu gagal mematuhi kehendak Arahan Amalan No. 2
H
Tahun 1985. Ketidakpatuhan ini adalah fatal dan rekod rayuan
haruslah dibatalkan.
(6) Peguam responden telah memaklumkan kepada peguam perayu
tentang bakal tindakan yang akan diambil jika eksibit-eksibit
I tidak dimasukkan di dalam rekod rayuan. Maka terdapat
peluang yang mencukupi bagi peguam perayu memperbetulkan
rekod rayuan. Namun, peguam perayu tidak berbuat apa-apa
448 Current Law Journal [2010] 1 CLJ
di sepanjang tahun 2008. Oleh itu, tidak ada perbuatan serang A
hendap dilakukan oleh peguam responden terhadap peguam
perayu berhubung lampiran 25a.
(7) Berdasarkan A. 92 k. 4 KMT, pemfailan memorandum rayuan
di dalam Bahasa Inggeris adalah suatu ketidakadilan kepada
B
responden, dan ia jelas suatu penyalahgunaan proses
mahkamah.
Case(s) referred to:
Chua Choong Yin v. Tan Boon Bak Trading Sdn Bhd & Anor [2002] 3
CLJ 357 CA (refd) C
Connelly v. Director of Public Prosecutions [1964] AC 1254 (refd)
Dato’ Seri Anwar Ibrahim v. Tun Dr Mahathir Mohamad [2007] 5 CLJ 118
HC (refd)
Dato’ Seri Anwar Ibrahim v. Tun Dr Mahathir Mohamad [2008] 6 CLJ 325
CA (refd)
D
Duport Steels Ltd and Others v. Sirs and others [1980] 1 All ER 529 (refd)
Govind Lal Chaggan Lal Patel v. The Agriculture Produce Market Committee
and Others, AIR [1976] SC 263 (refd)
Kerajaan Negeri Pahang Darul Makmur & Anor v. Seruan Gemilang
Makmur Sdn Bhd [2008] 6 CLJ 611 CA (refd)
M/s Sainik Motors, Jodhpur and Others v. State of Rajasthan, AIR [1961] E
SC 1480 (refd)
Regina v. Jefferies [1968] 3 WLR 830 (refd)
State of Uttar Pradesh and Others v. Babu Ram Upadhya, AIR [1961] SC
751 (refd)
State of UP v. Manbodhan Lal Srivastava, and Manbodhan Lal Srivastava
F
v. State of UP, AIR [1957] SC 912 (refd)
Yu Oi Yong & Anor v. Ho Toong Peng & Ors [1977] 1 MLJ 120 (refd)
Zainun Hj Dahan lwn. Rakyat Merchant Bankers Bhd & Satu Lagi [1997]
4 CLJ Supp 279 HC (refd)
Legislation referred to: G
Federal Constitution, art. 152(1)
Interpretation Acts 1948 and 1967, s. 3
National Language Act 1963/1967, s. 8
Rules of the Court of Appeal 1994, rr. 18(1), (6), (10), 21(2), (3), 101
Rules of the High Court 1980, O. 92 r. 4
H
For the appellant - Karpal Singh (SN Nair, Wan Anuar Shaddat Mohamed
Amin & Nicholas Netto with him); M/s SN Nair & Partners
For the respondent - Dato’ VK Lingam (R Thayalan with him); M/s VK
Lingam & Co
I
Dato’ Seri Anwar Ibrahim v.
[2010] 1 CLJ Tun Dr Mahathir Mohamad 449
A [Appeal from High Court, Kuala Lumpur; Civil Suit No: S4-23-15-2006]
[Editor’s note: For the High Court judgment, please see Dato’ Seri Anwar
Ibrahim v. Perdana Menteri Malaysia & Anor [2007] 5 CLJ 118.]
Reported by Amutha Suppayah
B
JUDGMENT
Abdul Malik Ishak JCA:
C
Introduction
[1] There were two enclosures for our consideration. The first
one was encl. 25a which was a notice of motion filed by the
respondent (Tun Dr Mahathir bin Mohamad). The second was
D
encl. 29a which was also a notice of motion filed by the appellant
(Dato’ Seri Anwar bin Ibrahim). We heard these two enclosures
simultaneously.
[2] The notice of motion in encl. 25a sought to move this court
E for the following orders pursuant to art. 152 of the Federal
Constitution and/or s. 8 of the National Language Acts 1963/1967
(Act 32) and/or s. 3 of the Interpretation Acts 1948 and 1967
(Act 388) and/or r. 101 of the Rules of the Court of Appeal 1994
and/or pursuant to the inherent jurisdiction of this court:
F
1. The appellant’s record of appeal filed in the appellant’s appeal
herein be struck out and/or set aside.
2. Consequently, the appellant’s appeal herein be dismissed with
costs.
G
3. The costs of this application shall be borne by the appellant.
[3] While the notice of motion in encl. 29a sought for the
following prayers:
H 1. That the applicant appellant be allowed to file this application
out of time.
2. That the applicant appellant be allowed to file and to serve
the additional appeal record containing the memorandum of
appeal in the Malay language within 21 days from the date
I of this order.
450 Current Law Journal [2010] 1 CLJ
3. The costs of the application to be borne by the applicant A
appellant.
4. Any other order or relief which this court deems fit and
suitable.
[4] Enclosure 25a was supported by an affidavit of the B
respondent that was affirmed on 1 October 2009. The reply to
this affidavit was affirmed by Wan Anuar Shaddat bin Mohamed
Amin (“Shaddat”) on 6 October 2009 and it was styled as an
affidavit in reply of the appellant. R Thayalan a/l Retanavalu
responded on behalf of the respondent and he affirmed an affidavit C
on 16 October 2009.
[5] Whereas encl. 29a was supported by an affidavit in encl.
29b that was affirmed by Shaddat on 16 October 2009. For want
of time and for expediency, the respondent relied on their affidavits
D
pertaining to encl. 25a by way of a rebuttal in countering encl.
29a through a “notis niat untuk merujuk kepada afidavit
terdahulu” dated 20 October 2009 marked as encl. 31.
The Background Facts
E
[6] By way of a writ of summons and the statement of claim
dated 27 January 2006, the appellant sued the respondent for an
alleged defamation. The appellant had claimed that the respondent
had defamed him during a press conference on 9 September 2005
at the premises of the Malaysian Human Rights Commission F
(SUHAKAM) at Kuala Lumpur and published in the website of
Malaysiakini under the heading “Nobody will be safe from a ‘gay’
PM says Dr. M”. It was also published and reported in the
Agence France-Presse (AFP), Singapore Business Times, Straits
Times Singapore, The Associated Press (AP), The Age newspaper G
in Melbourne and other publications.
[7] It seems that the appellant had claimed from the respondent
compensatory damages, aggravated damages, exemplary damages,
injunction, interests, costs and other reliefs deemed fit by the
H
court. The respondent has since filed his defence against the
appellant’s suit on 14 April 2006. On 25 July 2006, the appellant
filed his reply to the defence and subsequently amended it by way
of a court order dated 15 February 2007.
I
Dato’ Seri Anwar Ibrahim v.
[2010] 1 CLJ Tun Dr Mahathir Mohamad 451
A [8] On 5 January 2007, the respondent filed a summons in
chambers application to strike out the appellant’s writ of summons
and the statement of claim in its entirety and alternatively paras 6
and/or 7 and/or 8 and/or 9 and/or 11 and/or 12 of the statement
of claim and/or that paras 13 and/or 14 and/or 15 and/or 16 and/
B or 17 and/or 18 and/or 19 and/or 20 of the amended reply be
struck out.
[9] On 4 July 2007, the High Court had allowed the
respondent’s application and struck out the appellant’s writ of
summons and the statement of claim in its entirety with costs. The
C
appellant, being dissatisfied with the decision of the High Court,
had on 5 July 2007 filed the appeal to this court. The decision of
the High Court has since been reported vide Dato’ Seri Anwar
Ibrahim v. Tun Dr. Mahathir Mohamad [2007] 5 CLJ 118, HC.
D
[10] The respondent has been advised by his solicitors to say
that there were disputes between the appellant’s solicitors Messrs
S N Nair & Partners and his solicitors pertaining to the
documents to be included in the record of appeal.
E [11] On 22 August 2007, Messrs S N Nair & Partners wrote to
the deputy registrar of the High Court of Kuala Lumpur seeking
an appointment to resolve the dispute as to the documents to be
placed in the record of appeal.
[12] Notwithstanding the letter to the deputy registrar of the
F
High Court of Kuala Lumpur dated 22 August 2007, the appellant
had also filed a notice of motion to this court on 30 August 2007
for the following reliefs:
(i) that the appellant be granted an extension of 21 days to file
G
the record of appeal from the date of the orders made
therein;
(ii) the index of the record of appeal and the exhibits be
determined by this court; and
H
(iii) that costs be made costs in the cause.
[13] The respondent continue to aver that on 30 August 2007,
the appellant’s solicitors had also served on the respondent’s
solicitors a copy of the record of appeal without the exhibits as
I exhibited in the respondent’s affidavit in support affirmed on 4
January 2007.
452 Current Law Journal [2010] 1 CLJ
[14] The appellant’s notice of motion was originally fixed for A
hearing on 29 January 2008. The respondent’s solicitors had
affirmed an affidavit in reply on 24 January 2008 and filed on
25 January 2008 for the purpose of opposing the appellant’s
application.
B
[15] On 29 January 2008, this court had directed that the
dispute pertaining to the index to the record of appeal be
determined by the deputy registrar of the High Court pursuant to
r. 18(6) of the Rules of the Court of Appeal 1994 and this court
then adjourned the appellant’s notice of motion to a date to be
C
fixed.
[16] On 3 April 2008, the deputy registrar of the High Court
heard arguments from counsel on both sides in regard to the
inclusion of the documents in the record of appeal. It was on
D
9 April 2008 that the deputy registrar of the High Court gave his
decision and held that all the exhibits must be included in the
record of appeal.
[17] By letter dated 11 April 2008, the appellant’s solicitors
Messrs S N Nair & Partners informed the registrar of this court E
that the appellant was dissatisfied with the decision of the deputy
registrar of the High Court in allowing the inclusion of all the
exhibits and requested that the appellant’s notice of motion be
fixed for hearing.
F
[18] This court then fixed the appellant’s notice of motion for
hearing on 9 July 2008 and it was subsequently heard on 10 July
2008.
[19] On 10 July 2008, this court made the following orders:
G
(i) that the appellant’s first relief in the notice of motion for the
extension of 21 days to file and serve the record of appeal
was allowed;
(ii) that the appellant’s second relief in the notice of motion was
H
dismissed; and
(iii) that costs of the application be costs in the cause.
[20] The judgment of this court has since been reported vide
Dato’ Seri Anwar Ibrahim v. Tun Dr Mahathir Mohamad [2008] 6 I
CLJ 325, CA.
Dato’ Seri Anwar Ibrahim v.
[2010] 1 CLJ Tun Dr Mahathir Mohamad 453
A [21] By letter dated 28 July 2008 Messrs S N Nair & Partners
served on the respondent’s solicitors a copy of the purported
record of appeal together with all the exhibits.
[22] By notice dated 27 May 2009, this court informed the
parties that the appeal of this case has been fixed for case
B
management on 4 June 2009. But the appellant’s solicitors by
letter dated 29 May 2009 wrote to this court seeking an
adjournment of the case management on 4 June 2009 as Sankara
Nair will be in the United Kingdom from 30 May 2009 to 6 June
2009. And so this court by notice dated 1 June 2009 agreed to
C
adjourn the case management from 4 June 2009 to 25 June 2009.
[23] However, on 25 June 2009, this court had fixed the appeal
herein for hearing during the week commencing on 2 November
2009. And, accordingly, the parties have been notified by notice
D
dated 2 July 2009 from the registry of this court that the hearing
date of this appeal has been scheduled for the week commencing
2 November 2009.
[24] With these background facts, the respondent through his
E solicitors filed the notice of motion in encl. 25a which was dated
2 October 2009.
[25] The affidavit in reply of the appellant that was affirmed by
Shaddat on 6 October 2009 challenged the notice of motion in
encl. 25a and alleged that there was an unreasonable delay in filing
F
the said enclosure. He also alluded to what had happened during
the case management on 25 June 2009. He averred that during
the case management before the deputy registrar, he appeared as
counsel for the appellant while R. Thayalan appeared as counsel
for the respondent. He averred that R. Thayalan had confirmed
G
that the cause papers were in order and after hearing such
confirmation the deputy registrar forthwith fixed the hearing date
of the appeal on 2 November 2009.
[26] Shaddat further deposed that during the case management,
H
R. Thayalan never raised any objection or issue in regard to the
appeal record like what was alleged in the notice of motion in
encl. 25a as well as in the affidavit in support affirmed by the
respondent on 1 October 2009.
I [27] Shaddat averred that he verily believed that the reasons
stipulated in encl. 25a and in the affidavit in support that was
affirmed by the respondent do not warrant the record of appeal
or the appeal itself to be struck off.