by Joshua Wu Kai-Ming | May 7, 2025 | Law
The civil courts have consistently recognised that the superior civil courts (namely the High Court, the Court of Appeal, and the Federal Court) are creatures of statute.
On the High Court being a creature of statute, the Federal Court in Gan Boon Aun v Public Prosecutor [2016] 4 MLJ 265 held the following:
“It is our considered view that the High Court, being a creature of statute, has no power to enlarge its jurisdiction under ss 30(2) and 84(1) of the CJA.”[1] (Emphasis mine)
As for the Court of Appeal being a creature of statute, this was acknowledged by the Federal Court in Dr Koay Cheng Boon v Majlis Perubatan Malaysia [2012] 3 MLJ 173:
“Being a creature of statute, the Court of Appeal has no power to enlarge its jurisdiction.”[2] (Emphasis mine)
The Federal Courts have accepted that even they are creatures of statute.
In Auto Dunia Sdn Bhd v Wong Sai Fatt & Ors [1995] 2 MLJ 549, Edgar Joseph Jr FCJ was of the following view:
“It is an elementary proposition that this court is a creature of statute and that equally a right of appeal is also a creature of statute, so that unless an aggrieved party can bring himself within the terms of a statutory provision enabling him to appeal, no appeal lies.”[3] (Emphasis mine)
Similarly, the Federal Court in Megat Najmuddin bin Dato Seri (Dr) Megat Khas v Bank Bumiputera (M) Bhd [2002] 1 MLJ 385 held as follows:
“The view expressed by his Lordship is but a mere reflection of the intention of Parliament. The Federal Court is a creature of statute. So is the right of appeal. This means that unless an aggrieved party can bring himself within the parameters of s 96(a) of the CJA, no appeal lies.”[4] (Emphasis mine)
In Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101, the Federal Court clarified that “statutes” included the Federal Constitution:
“The point to note here is that both courts, civil and shariah, are creatures of statutes. Both owe their existence to statutes, the Federal Constitution, the Acts of Parliament and the State Enactments. Both get their jurisdictions from statutes ie Constitution, federal law or state law, as the case may be.”[5] (Emphasis ours)
The very existence and constitution of the superior civil courts are established by virtue of Part IX of the Federal Constitution.[6]
Notably, certain aspects of the jurisdictions of the Court of Appeal and the Federal Court are explicitly provided for in the Federal Constitution.[7]
Notwithstanding that, the Federal Constitution provides that the following are “as may be conferred by or under federal law” or “as may be provided by federal law”:
(a) The jurisdiction and powers of the High Court;[8]
(b) The other (read: additional/further) jurisdiction(s) of the Court of Appeal;[9] and
(c) The other (read: additional/further) jurisdiction(s) of the Federal Court.[10]
The Courts of Judicature Act 1964, an ordinary statute, is one such federal law.
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by Joshua Wu Kai-Ming | Oct 2, 2024 | Law
1. A command issued by the court to an authority to perform a public duty placed upon it by law
This proposition was put forth by the Federal Court in Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 4 MLJ 641 (“Petrojasa”):
“… by definition an order of mandamus is a command issued by the court to an authority to perform a public duty placed upon it by law.”[1]
In MP Jain’s ‘Administrative Law of Malaysia and Singapore’ 3rd edn at pp. 652, 653, the learned author described a mandamus as “… a command issued by the High Court asking an authority to perform a public duty imposed upon it by law.”[2]
2. Provided for under paragraph 1 of the Schedule of the Courts of Judicature Act 1964
Paragraph 1 of the Schedule of the Courts of Judicature Act 1964 states that the High Court has the additional powers to:
“… to issue to any person or authority directions, orders or writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others, for the enforcement of the rights conferred by Part II of the Constitution, or any of them, or for any purpose.” (Emphasis mine)
3. Provided for under Section 44 of the Specific Relief Act 1950
Section 44 of the Specific Relief Act 1950 provides the following:
“(1) A Judge may make an order requiring any specific act to be done or forborne, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or any court subordinate to the High Court:
Provided that—
(a) an application for such an order be made by some person whose property, franchise, or personal right would be injured by the forbearing or doing, as the case may be, of the said specific act;
(b) such doing or forbearing is, under any law for the time being in force, clearly incumbent on the person or court in his or its public character, or on the corporation in its corporate character;
(c) in the opinion of the Judge the doing or forbearing is consonant to right and justice;
(d) the applicant has no other specific and adequate legal remedy; and
(e) the remedy given by the order applied for will be complete.
(2) Nothing in this section shall be deemed to authorize a Judge—
(a) to make any order binding on the Yang di-Pertuan Agong;
(b) to make any order on any servant of any Government in Malaysia, as such, merely to enforce the satisfaction of a claim upon that Government; or
(c) to make any order which is otherwise expressly excluded by any law for the time being in force.”
4. Must satisfy the 4 requirements in Koon Hoi Chow
Sharma J in Koon Hoi Chow v Pretam Singh [1972] 1 MLJ 180b (“Koon Hoi Chow”) laid down the 4 requirements for an order for mandamus:
“There are four prerequisites essential to the issue of an order under section 44 or of a mandamus:-
(1) Whether the applicant has a clear and specific legal right to the relief sought;
(2) Whether there is a duty imposed by law on the respondent;
(3) Whether such duty is of an imperative ministerial character involving no judgment or discretion on the part of the respondent; and
(4) Whether the applicant has any remedy, other than by way of mandamus, for the enforcement of the right which has been denied to him.”[3]
The test in Koon Hoi Chow has been subsequently adopted by appellate courts, including the Court of Appeal in Peguam Negara Malaysia v Dr Micheal Jeyakumar Devaraj [2012] 1 MLJ 179[4] and Mohamad Hassan bin Zakaria v Universiti Teknologi Malaysia [2017] 6 MLJ 586.[5]
5. Can be granted against a Minister
In Petrojasa, the Federal Court speaking through Abdul Hamid Mohamad CJ held the following:
“[31] We shall now look at the provision of para 1 of the Schedule in detail. Mandamus is mentioned as one of the additional powers. It may be issued to ‘any person or authority’ which, in my view, includes a Minister of a government.
[32] My brother Arifin Zakaria FCJ has dealt at length, citing authorities to the effect that judicial review lies against a Minister. I shall not repeat. Indeed, the writ of habeas corpus, one of the writs mentioned in para 1 of the Schedule are mostly issued against a Minister. That being the case, I am of the opinion that mandamus may be issued against the appellant.”[6] (Emphasis mine)
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by Joshua Wu Kai-Ming | Jun 6, 2023 | Law
Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1993] MLJU 96 (“Yekambaran”) is an oft quoted decision by Edgar Joseph Jr SCJ on the test to be applied in an application for discovery.
Yekmbaran is actually a case whereby Edgar Joseph Jr (despite being a Supreme Court judge then) sat in a High Court judge’s capacity to hear a High Court matter.
Section 18(1) of the Courts of Judicature Act 1964 (“CJA 1964”)[1], read together with the definition of “Judge” in Section 3 of the CJA 1964,[2] allow for a Federal Court judge, Court of Appeal judge, or High Court judge to hear a matter in the High Court.
The fact that Edgar Joseph Jr was a Supreme Court judge when he heard and decided on Yekambaran does not take away from the fact that:
(a) Yekambaran is a decision of the High Court;
(b) Yekambaran is binding where subordinate/inferior courts are involved;[3] and
(c) Yekambaran is only persuasive where superior courts are involved.
The following cases, regrettably, wrongly quoted Yekambaran as being a decision of the Supreme Court:
(a) Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1 Jmb [2018] MLJU 697 (a decision of the Court of Appeal):
“… (a) In Yekambaran s/o Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581, the Supreme Court set out the threshold test the applicant had to satisfy to succeed in an application for discovery.”[4] (Emphasis mine)
(b) Suruhanjaya Pilihan Raya & Ors v Kerajaan Negeri Selangor and another appeal [2018] 2 MLJ 322 (a decision of the Court of Appeal):
“As for the elements required to be shown for the grant of an order for discovery, the then Supreme Court in Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1993] MLJU 96; [1994] 2 CLJ 581 through Edgar Joseph Jr SCJ had this to say …”[5] (Emphasis mine)
(c) Power Cellular Accessories Supply Sdn Bhd v Pesuruhjaya Tanah Persekutuan & Ors [2019] MLJU 751 (a decision of the High Court):
“On the same issue, the general legal principle on the requirements to be fulfilled in a discovery application has been laid down by the Supreme Court in the case of Yekambaran Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581 …”[6] (Emphasis mine)
(d) Golden Affinity Development Sdn Bhd v Lim Yok Wah & Ors [2020] MLJU 1463 (a decision of the High Court):
“On the same issue, the general legal principle on the requirements to be fulfilled in a discovery application as laid down by the Supreme Court in the case of Yekambaran Marimuthu v. Malayawata Steel Bhd [1994] 2 CLJ 581 …”[7] (Emphasis mine)
(e) Teknologi Enviro-Kimia (M) Sdn Bhd v Bufflow Engineering Sdn Bhd & Ors [2022] MLJU 2759 (a decision of the High Court):
“The general legal principle that is required to be fulfilled in a discovery application is found in the oft-quoted Supreme Court case of Yekambaran Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581, where his Lordship Edgar Joseph Jr SCJ stated …”[8] (Emphasis mine)
Notwithstanding the value and propriety of the test laid down in Yekambaran, decisions (such as the above) which incorrectly quote Yekambaran as a decision of the Supreme Court incorrectly elevate Yekambaran vis-a-vis the doctrine of judicial precedent and run the risk of muddling case law which are binding on superior courts vis-a-vis applications for discovery.
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by Joshua Wu Kai-Ming | Oct 13, 2021 | Law
1. Its purpose is to maintain status quo
In Takako Sakao (f) v Ng Pek Yuen & Anor (No. 3) [2010] 2 MLJ 141, the Federal Court held:
“When viewed in its proper perspective, what s 80 is designed to address is a situation where there is either an application for leave to appeal or an appeal pending before this court the integrity of which is required to be preserved. It would be futile for an appellant or an intended appellant to prosecute his appeal or application for leave before this court if the subject matter of the appeal is dissipated or otherwise disposed of. Power is necessary in an appellate court, in particular the apex court, to preserve and maintain the status quo until the matter is finally disposed of. Section 80 does precisely that. It empowers us to make interim preservation orders to protect the integrity of an appeal or a leave application until it is finally disposed of.”[1]
2. The Court of Appeal and Federal Court are empowered to grant it pursuant to the Courts of Judicature Act 1964
Sections 44 and 80 of the Courts of Judicature Act 1964 provide the following:
“44. (1) In any proceeding pending before the Court of Appeal any direction incidental thereto not involving the decision of the proceeding, any interim order to prevent prejudice to the claims of parties pending the hearing of the proceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered may at any time be made by a Judge of the Court of Appeal.
…
80. (1) In any proceeding pending before the Federal Court any direction incidental thereto not involving the decision of the proceeding, any interim order to prevent prejudice to the claims of parties pending the hearing of the proceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered may at any time be made by a Judge of the Federal Court.” (Emphasis mine)
3. The High Court can grant it if the subject matter involves property
The High Court can also grant IPOs, albeit in more narrow circumstances, namely where the subject matter involves property.
Item 6 of the Schedule to the Courts of Judicature Act 1964 seizes the High Court with the:
“Power to provide for the interim preservation of property the subject matter of any cause or matter by sale or by injunction or the appointment of a receiver or the registration of a caveat or a lis pendens or in any other manner whatsoever.” (Emphasis mine)
4. It can take the form of injunctions
The Court of Appeal in Silver Concept Sdn Bhd v Brisdale Rasa Development Sdn Bhd (formerly known as Ekspedisi Ria Sdn Bhd) [2002] 4 MLJ 113 opined that:
“[Section 44 of the Courts of Judicature Act 1964] empowers this court to make interim orders to preserve the integrity of an appeal or other proceeding, including the very application under the section itself (see sub-s (2)). Such interim preservation orders may take the form of an injunction or other relief designed — in the words of the section — ‘to prevent prejudice to the claims of parties’.”[2] (Emphasis mine)
In Fawziah Holdings Sdn Bhd v Metramac Corp Sdn Bhd(previously known as Syarikat Teratai KG Sdn Bhd) [2006] 1 MLJ 435, the Court of Appeal ordered an injunction “… in the form of a post judgment Mareva injunction.”[3]
Meanwhile, in Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147, it was in the form of an Erinford injunction.[4]
5. It would not be defective if granted by two (or more) judges of the Court of Appeal/Federal Court
In Wan Khairani bte Wan Mahmood v Ismail bin Mohamad & Anor [2007] 4 MLJ 409 (“Wan Khairani”), the 1st Respondent argued that the interim preservation order granted by the Court of Appeal was defective as it was granted by two Court of Appeal judges.[5]
Tengku Baharudin JCA (later FCJ), in delivering the majority judgment in Wan Khairani, held:
“Kemusykilan RP tentang perintah dibuat oleh dua orang hakim dijawab oleh s 38(1) CJA itu sendiri yang dimulakan dengan perkataan-perkataan ‘Subject as hereinafter provided’. Seksyen 44 CJA adalah salah satu peruntukan terkemudian yang dimaksudkan di mana keputusan yang dibuat oleh seorang hakim dianggap sebagai keputusan Mahkamah Rayuan — lihat sub-s (2). Jika perintah sedemikian sah dibuat oleh seorang hakim, maka mana-mana hakim dalam panel Mahkamah Rayuan boleh membuatnya. Ekorannya perintah sedemikian yang dibuat oleh dua orang hakim Mahkamah Rayuan adalah teratur dan sah.”[6] (Emphasis mine)
6. It cannot be granted if, in effect, it would render the appeal nugatory/academic
In Taipan Focus Sdn Bhd v Tunku Mudzaffar b Tunku Mustapha [2011] 1 MLJ 441, one of the legal questions posed to the Federal Court was:
“whether as a matter of law the Court of Appeal can make orders under s 44 of the Courts of Judicature Act 1964 which in effect renders the appeal nugatory or academic and/or is made pending the disposal of another suit which is not the subject matter of the appeal.”[7]
The majority (2-1) answered the leave question in the negative.[8]
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