Can you quote and/or rely on the headnotes of a reported decision?

Can you quote and/or rely on the headnotes of a reported decision?

My learned friend acting for the Plaintiff, in an ongoing dispute, contended that it is improper to quote the headnotes of a reported decision as the headnotes are prepared by the law reports and not by the Court (“Impugned Proposition”):

With all due respect to my learned friend, the Impugned Proposition does not hold water.

A. The headnotes of a reported decision, while prepared by law reports, accurately reflect/record the facts of the case and/or what is held in the full judgment

LexisNexis Malaysia claims, amongst others, the following:

1. About its Lexis Advance product:

“Save time with legal case summaries and headnotes that reflect the holdings and language of the court.”[1] (Emphasis mine)

2. About the Malayan Law Journal:

“Case reports are clearly presented with catchwords, headnotes summarising judgments and annotations of all cases and legislation mentioned in judgments.”[2] (Emphasis mine)

In Re Lee Gee Chong Deceased; Tay Geok Yap & Ors v Tan Lian Chow [1965] 1 MLJ 102, the Federal Court remarked the following regarding the headnotes in Re Lee Siew Kow deceased [1952] MLJ 184 and Er Gek Cheng v Ho Ying Seng [1949] MLJ 171:

“The headnotes to these two cases correctly record what was stated in the judgments as to the law of Singapore.”[3] (Emphasis mine)

B. The Malaysian apex courts have consistently quoted and/or relied on the headnotes of other reported decisions

Examples include:

1. The Federal Court’s decision in Zulkiple bin Mohamad v Public Prosecutor [2022] 1 MLJ 479 which referred to the headnotes of the Singapore Court of Appeal’s decision in Public Prosecutor v Lim Poh Lye and another [2005] SGCA 31:

“[37]  The principle in Virsa Singh was reiterated in Public Prosecutor v Lim Poh Lye and another [2005] SGCA 31 where the Singapore Court of Appeal explained its decision 12 years earlier in Tan Chee Hwee v Public Prosevutor [1993] 2 SLR(R) 493 which appeared to have added a new element to the interpretation of s 300(c). Suffice it if we refer to headnotes (3) and (4) of Lim Poh Lye …”[4] (Emphasis mine)

2. The Federal Court’s decision in Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2022] 1 MLJ 1 which referred to the headnotes of the Privy Council’s decision in Hoecheong Products Co Ltd v Cargill Hong Kong Ltd:

The importance of this principle was reiterated by the Privy Council in an appeal from the Court of Appeal, Hong Kong in the case of Hoecheong Products Co Ltd v Cargill Hong Kong Ltd [1995] 1 HKC 625. In that case, an interpretation of the force majeure clause in the contract for delivery of goods was not raised by the parties but introduced by the Court of Appeal. The Privy Council held (at the headnotes) …”[5] (Emphasis mine)

3. The Federal Court’s decision in Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining Sdn Bhd [2021] 5 MLJ 79 whereby Abdul Rahman Sebli FCJ (now CJSS) quoted the headnotes of the Court of Appeal’s decision in Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] 4 MLJ 209 in presenting the Court of Appeal’s grounds for allowing the appeal:

“As reported in Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] 4 MLJ 209, the reasons for allowing the appeal were as follows (at the headnotes) …”[6] (Emphasis mine)

4. The Federal Court’s decision in Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLJ 1 which made reference to the headnotes of the Federal Court’s decision in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 and adopted the headnotes of the Federal Court’s decision in Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143:

“[34] The dicta of all the three learned judges [in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393] can be seen from the headnotes of the report. What is obvious is the unanimity of their Lordships’ opinions on when the inherent jurisdiction of the court can be invoked in striking out a previous perfected judgment or order …

[36] As regards the appellant’s submission on the court being functus officio and that a fresh suit needs to be filed to strike out a previous regularly obtained order on the ground of fraud, we adopt the finding of this court in Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143 which we think has settled these issues. The headnotes from the report in that case, which need no further explanation, or expansion, is now reproduced as our answer to those related questions …”[7] (Emphasis mine)

5. The Federal Court’s decision in Dato’ Seri Dr Kok Mew Soon & Ors v Mustapha bin Mohamed [2008] MLJU 919 whereby Zaki Tun Azmi PCA (later CJ) quoted part of the headnotes to Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd:

“The object of the Danaharta Act as well as the way the Act should be construed has been fully discussed in Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd. The issue in Kekatong was whether section 72 was unconstitutional. The court dealt at length with the objects and purposes of the Act. It concluded that section 72 is not unconstitutional. In the course of its discussion, it made a lot of comments and suffice for me to quote part of the headnotes to that case …” (Emphasis mine)

6. The Supreme Court’s decision in Lee Chin Kok v Jasmine Arunthuthu Allegakoen & Ors [2000] 4 MLJ 481 which referred to the headnotes of the Supreme Court’s decision in Kam Mah Theatre Sdn Bhd v Tan Lay Soon [1994] 1 MLJ 108:

“The Supreme Court (Peh Swee Chin SCJ) held in the headnotes as follows at pp 108–109 …”[8] (Emphasis mine)

7. The Supreme Court’s decision in Sekemas Sdn Bhd v Lian Seng Co Sdn Bhd [1989] 2 MLJ 155 which referred to the headnotes of the New Zealand case of Nicholas v Ingram [1958] NZLR 972, and followed the same:

“Finally, the New Zealand case of Nicholas v Ingram [1958] NZLR 972 where the defence was based solely on financial inability to complete. We refer to the headnotes. In an action for specific performance of a contract for the sale of land, hardship on the part of the defendant may operate as a defence. But the hardship must, in general, be such as existed at the time of the contract and not such as has arisen subsequently from a change of circumstances.”[9] (Emphasis mine)

C. The Court of Appeal have consistently quoted and/or relied on the headnotes of reported apex court decisions

Examples include:

1. Lim Meow Khean & Ors v Pakatan Mawar (M) Sdn Bhd (in liquidation) & Ors [2021] MLJU 127 which quoted and relied on the headnotes of the Federal Court’s decision in RHB Bank Bhd v Travelsight (M) Sdn Bhd & Ors and another appeal [2016] 1 MLJ 175:

 “[153]  The Federal Court in RHB Bank Bhd v Travelsight (M) Sdn Bhd & Ors and another appeal [2016] 1 MLJ 175 applied the principle of restitution and constructive trust against the developer in liquidation when it wanted to dispose of an office unit where strata titles had not been issued yet and where the end financing bank had been fully paid.

[154]  The Federal Court held as follows as summarised in the headnotes at page 176 …”[10]

2. Noraini bt Mohamed Hadi v Pembangunan Tanah dan Perumahan Sdn Bhd and another appeal [2021] 4 MLJ 152 which quoted and relied on the headnotes of the Court of Appeal’s decision in Besharapan Sdn Bhd & Ors v Agroco Plantation Sdn Bhd & Anor [2007] 1 MLJ 101 and the Federal Court’s decision in Nasri v Mesah [1971] 1 MLJ 32:

 “[150]  Our Court of Appeal had occasion to dispel the misconception that until one becomes a registered owner of land one cannot enter into a valid sale and purchase agreement to dispose it of in Besharapan Sdn Bhd & Ors v Agroco Plantation Sdn Bhd & Anor [2007] 1 MLJ 101; [2006] 4 CLJ 878, where it held as follows at para (1) of the headnotes

[185]  In Nasri v Mesah [1971] 1 MLJ 32, at the headnotes, the Federal Court decided that …”[11] (Emphasis mine)

3. Wong Chu Lai v Wong Ho Enterprise Sdn Bhd (in liquidation) and another appeal [2020] 5 MLJ 762 which quoted and relied on the headnotes of the Federal Court’s decision in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393:

 “In any case, it is trite law that it is not open ever to set up an estoppel against a statute. To allow estoppel to operate would tantamount to a contravention of statutory provisions. In Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393, the Federal Court reiterated the principle that no estoppel can operate against statute. In a supporting judgment, Gopal Sri Ram JCA (as he then was) observed (at the headnotes) that ‘… it is well settled that even courts of unlimited jurisdiction have no authority to act in contravention of written law … And the procedural branch of the broad and flexible doctrine of estoppel known as res judicata finds no place in such a circumstance’.”[12] (Emphasis mine)

4. Nur Rasidah bt Jamaludin v Malayan Banking Bhd and other appeals [2018] 3 MLJ 127 whereby Harmindar Singh JCA (now FCJ) quoted and relied on the headnotes of the Federal Court’s decision in Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345:

“… In this respect, we agree that reference to parliamentary reports as an aid to interpretation is permissible. However, the circumstances in which such reference could be made were circumscribed by the Federal Court in Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345 where it was held (at the headnotes) …”[13] (Emphasis mine)

5. Zaharah bt A Kadir (acting as the authorised representative of Abdul Kadir bin Ami, deceased) v Ramunia Bauxite Pte Ltd & Anor [2012] 1 MLJ 192 which quoted and relied on the headnotes of the Supreme Court’s decision in Malayan Banking Bhd v PK Rajamani [1994] 1 MLJ 405:

[155]  Learned counsel for the deceased appellant rightly submitted that every provision of the agreements dated 10 March 1951 and 8 March 1952 must be read in order to gather the intention of both parties. This approach received the approvals of the Federal Court in Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131, and of the Supreme Court in Malayan Banking Bhd v PK Rajamani [1994] 1 MLJ 405, and of the Federal Court in Perkayuan OKS No 2 Sdn Bhd v Kelantan State Economic Development Corp [1995] 1 MLJ 401. And way back in 1957, it also received its stamp of approval of the English Court of Appeal in Addiscombe Garden Estates, Ltd and another v Crabbe and others [1957] 3 All ER 563.

[157]  In Malayan Banking Bhd v PK Rajamani, in allowing the appeal, Mohamed Dzaiddin SCJ speaking for the Supreme Court had this to say (see the headnotes at pp 405–406) …”[14] (Emphasis mine)

Having in mind the foregoing, it is humbly submitted that the Impugned Proposition is incorrect and that one can quote/rely on the headnotes of a reported decision.

The courts have, in some decisions, quoted and relied on the contents of the headnotes of an earlier decision in a binding manner.

Having said that, the exact words or phrases used by a judge in a reported decision would be preferable over the headnotes of a reported decision.

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