Koperasi Pegawai-Pegawai Kerajaan Negeri Perlis Berhad V Wan Kiah @ Wan Noriah Binti Mahat & Another


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[In the matter of suit no: 22-09-2007 In the High Court of Malaya in Kangar, Perlis]












Azahar bin Mohamed, JCA Mohd Zawawi bin Salleh, JCA Hamid Sultan Bin Abu Backer, JCA


Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court)






[1] The appellant’s appeal came up for hearing on 30-09-2013. The learned counsel for the appellant indicated to us that they are relying on only one issue relating to law i.e. ‘ex-facie illegal’ which was not pleaded and argued in the court below which has now been set out in the memorandum of appeal. Both parties agreed that the determination of the issue as well as the preliminary issue whether the court ought to allow the issue to be ventilated in the first instance at the appellate stage will be sufficient to dispose of the appeal.


[2] We heard the arguments on the issues and reserved judgment to 08-11-2013 and invited parties to file further submission on the issues agreed. Both have filed submissions, however, we note that the appellant had exceeded the scope of what has been agreed and had submitted on additional factors on why the appeal should be allowed. We do not think it is appropriate to entertain any additional issues which the court has not consented to, more so when the judgment has been reserved.


[3] Such conduct by counsel will lead to procedural unfairness and if the court acts on those parts of the submission it will in actual fact compromise the integrity of the decision making process. In consequence we have only dealt with the two agreed issues in this appeal. We will elaborate further on the issue of procedural equality and/or procedural unfairness further in the judgment.




[4] My learned brothers Azahar bin Mohamed JCA and Mohd Zawawi bin Salleh JCA have read the draft judgment and approved the same. This is our judgment.


Brief Facts


[5] The appellant is a co-operative society and is subject to Cooperative Societies Act 1993 (Act). The subject matter of the dispute originates in relation to an agreement dated 14-3-2002 executed by Rosley bin Mat (Chairman of the appellant at the material time), for the appellant with land owners for the development of the lands for the purpose of a housing estate.


[6] The learned counsel for the appellant strenuously argued before us inter alia (i) a point of law can be canvassed notwithstanding it was not raised at the trial court; (ii) under the Act and by-laws a document to be enforced against the appellant must be executed by the Chairman, Secretary and the Treasurer or such other person or persons approved by the Board and bear the seal of the society; (iii) it is not sufficient for the document itself to be signed by the Chairman bearing the seal of the society; (iv) as the execution of the document and/or documents is in breach of the Act and/or by laws it is unenforceable, void ab initio and/or illegal in clear breach of a statutory provision.


[7] The learned counsel for the appellant had filed a lengthy submission dated 7-10-2013 totaling to 40 pages. We have gone through the submission over and over again as it contained dispute of facts which was not argued before us and/or placed before the trial court. In essence the submission consists of mixed question of law and




facts exceeding the scope of what have been agreed, before us on 3009-2013.


[8] We are of the considered view notwithstanding that the court does not lend its hand to assist contracts which are illegal at the trial stage or appellate stage and notwithstanding that judicial notice can be taken at any stage, either at the court of first instance or at the appellate stage irrespective of whether illegality is pleaded or not; where the contract is ex facie illegal (emphasis added), as adumbrated by the Supreme Court in Lim Kar Bee v Duoforties Properites (M) Sdn Bhd [1992]2 MLJ 281, -must indeed be limited to cases where it is ex-facie illegal when the issue is taken up for the first time at the appellate stage. This is so to ensure no procedural unfairness sets in to impinge on the integrity of the decision making process. Procedural unfairness may set in by many forms. One of that is as per the instant case where the appellant agreed to canvass the preliminary issue and one issue of law but went to file 40 pages submission relating to the facts and law.


[9] Procedural fairness to the respondent at the appeal stage is a sine qua non by virtue of article 8 of the Federal Constitution as the respondent has already secured what we term as the ‘fruit of litigation’ and the court will be slow in depriving the fruits when issues that are not canvassed at the trial stage is taken up at the appellate stage. In addition, when the respondent has obtained judgment which is tangible in nature amounting to property, then article 13 of the Federal Constitution which states no person shall be deprived of property save in accordance with law will become applicable. Articles 8(1) and 13(1) of the Federal Constitution read as follows:




“8. (1) All persons are equal before the law and entitled to the equal protection of the law.


13. (1) No person shall be deprived of property save in accordance with law.”


[10] Procedural equality is an entrenched constitutional guarantee pursuant to article 8(1) of the Federal Constitution. In the instant case it must be said the issue of liability must not be dealt with for the first time at the appellate stage, more so when the respondent will lose the benefit of trite principles such as admission, estoppel, waiver, Turquand rule (if applicable) and many others which need to be canvassed by way of evidence to negate the attempts of the appellant/defendant to demolish the respondent/plaintiff’s claim, unless the document complained of is ‘ex-facie illegal’. Learned Author’s of Nandi ‘Civil Ready Referencer’ when dealing with article 14 of the Indian Constitution which is similar to article 8(1) of the Federal Constitution on Procedural equality has this to say:


“Arbitrariness is the very antithesis of Article 14. The principle of reasonableness is an essential element of equality and the procedure contemplated by Art. 21 must answer the test of reasonableness in order to be in conformity with Art. 14 – Nandi Lal Bajaj v State of Punjab AIR 1981 SC 2041: (1981)4 AXX 327.




A rule of procedure laid down by law comes as much within the purview of Art. 14 as any rule of substantive law and it is necessary that all litigants who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence without discrimination – State of W.B. v Anwar Ali Sarkar AIR 1952 SC 75:


1952 Cr LJ 510.


Article 14 not only guarantees equal protection as regards substantive laws but procedural laws also come within its ambit. The implication of the article is that all litigants similarly situated are entitled to avail themselves of the same procedural rights for relief and for defence without any discrimination – Shree Meenakshi Mills Ltd. v Visvanatha Sastri AIR 1955 SC 13: (1955)1 SCR 787; see also Lachman Dass v State of Punjab AIR 1963 SC 222.”


[11] The Supreme Court in Lim Kar Bee’s case was referring to a document which was ‘ex-facie illegal’. If it is ex-facie illegal articles 8(1) and 13(1) will not be applicable. Ex-facie illegal means, the document on the face of it is illegal. The test is whether it is apparent on the face of it for breach of the law. It cannot be based on latent defect in the execution process and more so when it needs a curial scrutiny to ascertain its validity.


[12] An example, of a document ex facie illegal or patently illegal will be a compromise deed by a complainant of a criminal offence who agrees to withdraw the complaint or police report with or without consideration. [see Keliment anak Nyapong & 3 ors. V Usahabina Sdn Bhd [2008] 1 LNS 550]. An example, of a document which is alleged to suffer from latent defect is one which is alleged to be signed by unauthorized person or the signature is alleged to be a forgery, etc.; where the burden will be




placed on the party alleging to adduce evidence to satisfy the court to make a finding.


[13] Any attempt to seek a crucial scrutiny as to validity on the factual matrix of the instant case must procedurally be placed before the trial court and it cannot even be attempted at the appellate stage as what the appellant had attempted in the submission. Curial scrutiny if any and its result in the instant case will relate to finding of facts on mixed question of law and facts. As it was not done at the trial stage the appellant ought not to be allowed to canvass on this issue.


[14] We are also satisfied after having gone through the Act as well as the regulation, the document complained of is not ex-facie illegal. In Lim Kar Bee’s case, the Supreme Court held:


“When the contract is not ex facie illegal, the court can still take judicial notice of illegality and refuse to enforce the contract even though illegality has not been pleaded but only in the situation when facts which have not been pleaded emerge in evidence in the course of the trial showing clearly the illegality. Such a situation exists in this appeal.” (emphasis added).


[15] In the instant case no opportunity was given to the trial court to consider whether the document was illegal to satisfy the test stated by the Supreme Court.




[16] For reasons stated above, the appeal is dismissed with costs. The appellant to pay costs of RM20,000.00 to the respondent for this appeal. Deposit to be refunded to the appellant.


We hereby order so.


Dated: 8 November 2013








Court of Appeal Malaysia.


Note: Grounds of judgment subject to correction of error and editorial adjustment etc.


For Appellant:


Dato’ Brijnandan Singh (with Jamil bin Mohamed Shafie) Messrs. Jamil Mohamed Shafie & Assoc.


Kangar, Perlis.


For Respondent:


Loo Yook Khin


Messrs. Law Chamber of Y.K.Loo & Cheng Alor Setar, Kedah.



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