Misattribution by the majority in Dahlia Dhaima?

Misattribution by the majority in Dahlia Dhaima?

In Majlis Agama Islam Selangor v Dahlia Dhaima bt Abdullah and another appeal [2023] 2 MLJ 897 (“Dahlia Dhaima”), Mohd Nazlan JCA (in delivering the majority judgment of the court) remarked the following in relation to the concept of ‘judicial estoppel’:

“Related to this, in another decision of a Court of Appeal in Zulpadli bin Mohammad & Ors v Bank Pertanian Malaysia Bhd [2013] 2 MLJ 915 it was explained that the rationale of judicial estoppel is to prevent intentional inconsistency and to protect the court from the perversion of judicial machinery.”[1]

(“Impugned Remarks”)

Zulpadli bin Mohammad & Ors v Bank Pertanian Malaysia Bhd [2013] 2 MLJ 915 (“Zulpadli”) was a decision of the Court of Appeal which in fact, involved the application of judicial estoppel.

However, with all due respect to the majority in Dahlia Dhaima, the Court of Appeal in Zulpadli did not explain the rationale of ‘judicial estoppel’.

In fact, the term ‘estoppel’ does not appear anywhere in the written judgment in Zulpadli and the term ‘estopped’ only appears in paragraph 22 of the written judgment in Zulpadli:

“The respondent’s own admission in the earlier suit as well as the amended statement of claim in the present suit show that the appellants were innocent victims as much as the respondent was. The respondent is estopped from taking a position different from that pleaded in its defence in the earlier suit.”[2] (Emphasis mine)

The Impugned Remarks, which the majority in Dahlia Dhaima attributed to the Court of Appeal in Zulpadli, is similar to the Court of Appeal’s pronouncements in Peguam Negara Malaysia v Nurul Izzah bt Anwar & Ors [2017] MLJU 273 (“Nurul Izzah”):

“… The essential function of judicial estoppel is to prevent intentional inconsistency while the object of the rule is to protect the court from the perversion of judicial machinery.”[3]

The majority in Dahlia Dhaima, referred to the Court of Appeal’s decision in Sykt Rodziah (sued as a firm) v Malayan Banking Bhd [2021] 5 MLJ 688 (“Sykt Rodziah”):

“The pleadings in the MAIWP Summons are as such a form of judicial admission which thus operate to prevent or estop the respondent from adopting a different stance. In a recent decision of this court in Sykt Rodziah (sued as a firm) v Malayan Banking Bhd [2021] 5 MLJ 688; [2021] 5 CLJ 170 it was held that a party is estopped from taking a position different from what was pleaded in its earlier suit or changing its stance in another action. The party’s admissions in pleadings in the earlier suit would amount to judicial admissions admissible against it.”[4] (Emphasis mine)

The Court of Appeal in Sykt Rodziah referred to the Court of Appeal’s decision in Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 wherein the latter referred to Zulpadli and Nurul Izzah:

“The case of Zulpadli was referred to by the Court of Appeal in Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 where Idrus Harun JCA (as His Lordship then was), stated at p 75 as follows:

[17] Also cited by learned counsel in the course of his oral submission on this point is this court’s decision in the case of Zulpadli bin Mohammad & Ors v Bank Pertanian Malaysia Bhd [2013] 2 MLJ 915 in which it was held that the respondent’s own admission in the earlier suit as well as the amended statement of claim in the present suit showed that the appellants were innocent victims as much as the respondent was. The respondent was estopped from taking a position different from that pleaded in its defence in the earlier suit. Clearly, the essential function of judicial estoppel is to prevent intentional inconsistency while the object of the rule is to protect the court from the perversion of judicial machinery. Judicial estoppel seeks to address the incongruity of allowing a party to assert a position in one court and the opposite in another tribunal (Peguam Negara Malaysia v Nurul Izzah bt Anwar & Ors [2017] MLJU 273). (see also) (Emphasis added.)”[5] [Emphasis mine]

Having in mind the foregoing, it is possible that the majority in Dahlia Dhaima misattributed the explanation of ‘judicial estoppel’ to Zulpadli when the same should have been attributed to Nurul Izzah.

If indeed there was misattribution, such misattribution risks muddying judicial precedent on ‘judicial estoppel’. Consequently, the remarks of the majority in Dahlia Dhaima vis-a-vis the Impugned Remarks should be treated cautiously.

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Where the Court of Appeal in Westech Went Wrong

Where the Court of Appeal in Westech Went Wrong

The Court of Appeal in Westech Sdn Bhd (in voluntary liquidation) v Thong Weng Lock (as surviving partner of Thong Kee Trading Co) [2014] 3 MLJ 427 [“Westech”] was confronted with the question of whether the leave of Court is required for a party to commence/proceed with any action/proceeding against a company after the commencement of a members voluntary winding up.[1]

The Court of Appeal answered the question in the affirmative and its decision was premised upon the following:

“[34] In our view the language in s 263(2) of the Companies Act 1965 is patently clear that no action or proceeding is to be commenced or proceeded with against a company after the commencement of a winding up is made except with leave of the court. The section makes no distinction between a voluntary winding up by members of the company or winding up by a creditor on the ground of the company’s insolvency.”[2] (underline mine)

Section 263(2) of the Companies Act 1965 (“CA 1965”) provides that:

Property and proceedings

263 (2) After the commencement of the winding up no action or proceeding shall be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.”

At first glance, the Court of Appeal in Westech appears to have gotten it right. After all, as Abdul Aziz Abd Rahim JCA points out, Section 263(2) of the CA 1965 does not make any distinction between members’ voluntary winding up and creditors’ voluntary winding up.

Even the marginal note[3] for Section 263 merely states “Property and proceedings,” which appears to leave room for the section to be applicable to both members’ voluntary winding up and creditors’ voluntary winding up.

However, the Court of Appeal in Westech went wrong when it failed to take into account the relevant sub-divisions and relevant sub-section of the CA 1965.

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The Unbearable Stench Of Hypocrisy

Former Perkasa deputy president Datuk Zulkifli Noordin (henceforth DZN) labelled those who commented against the recent Federal Court ruling on the Allah issue as “rude and insolent” and questioned whether these people wanted another May 13-like riots.

Apparently when the High Court rules in favour of the Catholic church, it is alright to question the decision, and thus appeal to a higher court

In response to the decision of the High Court allowing the Herald to use “Allah” in its publication, DZN stated “I can’t understand how any Muslim can support this judgment”.

When it comes to the Federal Court’s refusal to grant The Herald leave for appeal, it is NOT alright to question the decision (eventhough the Catholic church can legally file for a judicial review)

DZN urged the religious extremists to respect the court decision, the Federal Constitution and the sensitivity of other religions including Islam and Christianity

Respect the sensitivity of other religions? That is rich coming from the guy who gave a religious sermon belittling Hinduism in March 2013!

Anyone smell the hypocrisy here? Basically the principle applied is ‘anything not in my favour is questionable while anything in my favour should not be questioned’

In all his wisdom (or lack of it), DZN labelled those who opposed his principle as “rude,” “insolent” and even went to the extent of questioning whether those people wanted a 13th May 2.0

He is annoyed by the speck of sawdust in his brother’s eye but is oblivious to the plank in his own eye!

DZN went on to say that the religious extremists challenged the Muslim community by threating to continue using the word Allah in churches and in their worship

Apparently DZN was not aware (at the time of blogging) that Putrajaya issued a statement clarifying that the Federal Court’s ruling on the Allah issue applied only to the Catholic weekly, Herald.

The statement added that Malaysian Christians can still use the word Allah in church and that the government remains committed to the 10-point solution

Whoops, looks like DZN jumped the gun when he blamed the “religious extremists.” So who is next in line to be blamed? The government for coming up with the 10-point solution? The courts for not making this decision binding upon all future use of “Allah” by non-muslims?

Although Selangor has the 1988 Non-Islamic Religions (Control of Propagation Among Muslims) Enactment banning the use of the word “Allah” by non-muslims, it is important to note that Sabah & Sarawak does not have such an enactment, hence the use of the word “Allah” by Christians there is perfectly fine and cannot be construed to be provocation as it is not illegal

*Read it also at The Malay Mail Online

The Aftermath Of The Federal Court’s Decision

The 23rd of June 2014 will go down as one of the darkest days in Malaysia’s history. On that very day, the Federal Court (Malaysia’s apex court) decided not to grant the Catholic church leave for appeal on the use of the word “Allah” for its weekly newsletter publication called ‘The Herald’

The whole saga began in 2007 when the Home Ministry of Malaysia decided to issue a ban prohibiting The Herald from using the word “Allah” in its newsletter. The Herald had been peacefully doing so since 1995

The Catholic church was in a state of shock as the weekly publication was meant for internal circulation, thus dispelling any fears that it would be used to propagate to Muslims

The High Court in 2009 ruled in favor of the Catholic church and quashed the prohibition. Subsequently the government appealed and the Court of Appeal reversed the decision of the High Court

The Catholic church exercised their legal right to further pursue the matter up the hierarchy of courts but was turned down by the Federal Court. 4 out of the 7-man bench decided against allowing the leave for appeal

The leave for appeal is basically a permission to appeal a previous judgement/ruling. Without the leave for appeal, one is stuck with the decision of the earlier court

So what is the aftermath of the decision? It can’t all be that bad because Putrajaya has assured that the decision is only applicable to The Herald and would have no effect whatsoever on Christians that practice their faith in the national language

Putrajaya’s assurance counts for nothing as even their 10 point solution is not legally binding whereas the Court of Appeal’s decision is binding precedent and has to be followed by courts of equal and lower status

The Federal Court’s refusal to grant The Herald leave for appeal means that the Court of Appeal’s decision is good law. The obiter dicta (persuasive precedent) is that the word “Allah” is not an integral part of the Christian faith

Obiter dicta can crystallize into ratio decidendi (binding precedent). For example, if a court in a future case (e.g. the 321 Bibles seized by JAIS) decides to use that “mere observation” made by the Court of Appeal as the basis for its decision, the mere observation becomes a binding precedent.

Tell me again how that legal principle will only be bound to The Herald? From then onwards, whenever a case appears before the courts regarding the use of “Allah” in any Christian publication, all lower courts will be bound by the decision of the court which based its decision on the Court of Appeal’s obiter dicta

This has major ramifications on the rights of Christians to practice and profess their religion as per Article 11 of the Federal Constitution. Christians that practice their faith in Bahasa Malaysia will be unable to read the Bible in the language they have used all this while

That is only the beginning of the aftermath. Before we know it, the holy book of the Sikhs will also be seized and prohibited because of the use of the word “Allah”

What is most saddening is that the highest court of the land (i.e. the Federal Court) which has the ability to remedy this wrong refused to get involved. May we never forget this dark moment!

*Read it also at The Malay Mail Online