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.
[1] Section 18(1) of the Courts of Judicature Act 1964 provides that, “Every proceeding in the High Court and all business arising thereout shall, save as provided by any written law, be heard and disposed of before a single Judge”
[2] Section 3 of the Courts of Judicature Act 1964 defines a “Judge” as “a Judge of the Federal Court, of the Court of Appeal or of the High Court, and includes the Chief Justice, the President and a Chief Judge”
[3] See e.g. Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149 (FC), at paragraph 50: “… Any principle announced by a higher court must be followed in later cases … In practice, this means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases.”
[4] Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1 Jmb [2018] MLJU 697 (CA), at paragraph 11
[5] Suruhanjaya Pilihan Raya & Ors v Kerajaan Negeri Selangor and another appeal [2018] 2 MLJ 322 (CA), at paragraph 65
[6] Power Cellular Accessories Supply Sdn Bhd v Pesuruhjaya Tanah Persekutuan & Ors [2019] MLJU 751 (HC), at paragraph 6
[7] Golden Affinity Development Sdn Bhd v Lim Yok Wah & Ors [2020] MLJU 1463 (HC), at paragraph 22
[8] Teknologi Enviro-Kimia (M) Sdn Bhd v Bufflow Engineering Sdn Bhd & Ors [2022] MLJU 2759 (HC), at paragraph 3
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