The Firm’s Mr T Sudhar and Miss Tania Edward appeared for the Appellant in Rajamani a/p Meyappa Chettiar v. Pentadbir Tanah Daerah Klang & Anor (Civil Appeal No. B-01(A)-902-12/2022), where the Court of Appeal overturned the decision of the High Court, which had in turn, earlier dismissed the Appellant’s application (“the S. 33(1) Application”) under S. 33(1) of the Government Proceedings Act 1956 (“the GPA”), for a Certificate to be issued favouring the Appellant against the Respondents, who are the Klang District Land Administrator and the Selangor State Registrar of Titles.
For ease of reference, S. 33(1) of the Government Proceedings Act 1956, in so far as it is relevant, reads as follows:-
33. (1) Where in any civil proceedings by or against the Government … any order (including an order for costs) is made by any court in favour of any person against the Government or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order … issue to that person a certificate in the prescribed form containing particulars of the order…
The Federal Court in Pushpaleela a/p R Selvarajah & Anor v. Rajamani d/o Meyappa Chettiar and other appeals [2019] 2 MLJ 553 ordered, amongst others, that both the Respondents and the 7th Defendant in the High Court (“the 7th Defendant”), pay the Appellant damages to be assessed.
Pursuant to the assessment of damages proceedings, the High Court had on 29.07.2021, awarded the Appellant damages (“the Damages”) of, amongst others, RM10,404,850.00 together with interest at the rate of 5% per annum from 29.01.2019 till the date of full and final realisation, against the Respondents and the 7th Defendant. The High Court’s decision in the assessment of damages proceedings was affirmed by the Court of Appeal in Civil Appeal No.: B-01(W)-486-08/2021.
The Appellant filed the S. 33(1) Application on 29.09.2022, as at which date, the Respondents had failed to make payment of the Damages, despite written requests to that end by the Appellant. On 03.10.2022, the Appellant received a payment from the Respondents which appeared to be two-thirds of the Damages. On 08.12.2022, the High Court dismissed the S. 33(1) Application, with liberty to file afresh, if expedient, after the Federal Court’s clarification and/or decision on two (2) miscellaneous questions (“the Miscellaneous Questions”), i.e. (i) whether the Respondents and the 7th Defendant are jointly, severally or joint and severally liable for the damages assessed; and (ii) what should be the apportionment of the degree or percentage of responsibility of each of the Respondents and the 7th Defendant for the amount of damages assessed.
To summarise, the High Court found that (i) S. 33(1) of the GPA does not put the Government in a worse position than a private entity as a judgment debtor; and (ii) S. 33(1) of the GPA does not make it mandatory for the Court to issue the S. 33(1) Certificate. This finding of the High Court created disorder in S. 33(1) of the GPA by making the issuance of a S. 33(1) Certificate non-mandatory even in the case where the requirements stipulated in S. 33(1) of the GPA are met by the applicant.
The Court of Appeal has now restored order to S. 33(1) of the GPA, by finding that it was incorrect for the High Court to hold that S. 33(1) of the GPA “"does not make it mandatory for the Court to issue the section 33(1) certificate”, when the two requirements for the issuance of a S. 33(1) Certificate were met in this case.
The Court of Appeal further accepted the Appellant’s submission that based on authorities such as the recent decision of the Federal Court in Lembaga Kumpulan Wang Simpanan Pekerja v. Edwin Cassian a/I Nagappan @ Marie [2021] 5 MLJ 253 and the decision of the Court of Appeal in Kejuruteraan Bindai Kindenko [2021] 2 MLJ 234, the Appellant is entitled to execute the judgment against the Respondents to secure the performance of the assessment of damages judgment in its entirety. The Court of Appeal found in this connection, that where apportionment of liability is not stipulated in a judgment, such as in this case, liability is joint and several.
The Court of Appeal also observed that certain other findings and observations by the High Court were on matters not raised by parties, i.e. (i) whether the judgment sum ought to be suspended against the Respondents; and (ii) that there was no evidence before the High Court in so far as recovery of the judgment sum or any part thereof from the 7th Defendant was concerned. The parties had not been given the opportunity to submit on these matters before the High Court. The Court of Appeal agreed with the Appellant’s submission that this is contrary to the ruling of the Federal Court in the case of Dato' Tan Chin Woh v. Dato' Yalumallai @ M Ramalingam s/o v Muthusamy [2016] 5 MLJ 590 that whenever the court proposes to consider a fresh issue which the court considers pertinent to the case before it, it should give the parties the right to make submissions on the proposed issue before arriving at its finding, failing which, would constitute a breach of the rules of natural justice.
