IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION)
CIVIL APPEAL NO. Q-01-116-1997
TAKANG TIMBER SDN BHD … APPELLANT
THE GOVERNMENT OF SARAWAK … 1st RESPONDENT
THE SARAWAK ECONOMIC DEVELOPMENT
CORPORATION … 2nd RESPONDENT
(In the matter of Suit No. MR 26 of 1990 in the High Court of Sabah & Sarawak at Miri)
Takang Timber Sdn Bhd
The Government of Sarawak … 1st Defendant
The Sarawak Economic Development
Corporation … 2nd Defendant
Coram: Zulkefli Ahmad Makinudin, J.C.A. Raus Sharif, J.C.A.
Abdull Hamid Embong, J.C.A.
JUDGMENT OF THE COURT
1. Enclosure 29a is the application by Takang Timber Sdn. Bhd. (“appellant”) for an additional grounds of appeal to be added to the Memorandum of Appeal.
2. We heard the application on 3 September 2007 and dismissed it with costs. We now give our reasons.
3. Briefly, the facts leading to this application are as follows:-
3.1 Forest Timber Licence No. T/0142 (“the timber licence”) was issued to Syarikat Tingan Lumber (“the licencee”). The appellant entered into an extraction agreement with the licencee to extract logs within the area stated in the timber licence. The timber licence was not renewed upon its expiry. Another forest timber licence was issued to the 2nd respondent.
3.2 The appellant sued the 1st and 2nd respondents. Its claims in the suit are:-
(a) a declaration that the termination and/or cancellation of the timber licence by the 1st respondent was void ab initio or ultra vires and void or that the 1st respondent’s exercise of its discretion
and/or decision not to renew the timber licence was ultra vires and null and void;
(b) a declaration that the grant of the extraction right by or through the 2nd respondent to another party under the re-issued or renewed forest licence was void ab initio or ultra vires and void;
(c) an injunction restraining the 2nd respondent’s contractors or agents from extracting handling or disposing of all timber under the re-issued or renewed forest licence; and
(d) general damages.
4. On October 1997, after a full trial, the appellant’s claim against the respondents were dismissed. The appellant appealed against the dismissal. The Memorandum of Appeal was filed by the appellant on 16 December 1997.
5. On 21 December 2006, the appellant filed Enclosure 29a. It sought leave to add to the Memorandum of Appeal the following additional grounds of appeal.
“12.1 That the learned judge erred in law and/or misdirected himself in that he was bias and partial in his conduct and hearing of the trial
against the plaintiff, and had breached his duty to act as an impartial judge.
12.2 The said judge erred in law and/or misdirected himself by being bias and partial against the appellant by his refusal to allow oral evidence to be adduced or given in the appellant’s favour by the appellant’s main witness, Mr. Tai Choi Yu and/or the said judge’s refusal to record or accept the oral evidence given by the said witnesses in favour of the appellant in his record of Notes of Proceedings during the trial thereof.
12.3 The trial judge erred in law and misdirected himself by being bias and partial against the appellant as shown by his many defamatory remarks and innuendos against the appellant’s said main witness, Mr. Tai Choi Yu, and the said judge’s said bias and partiality had overtaken the better of him and/or influenced him to dismiss the appellant’s action in the High Court.”
6. After hearing submissions of the parties, we dismissed the application. Firstly, there is a delay on the part of the appellant in making the application. There is a lapse of about 9 years
between the time when the Memorandum of Appeal was drafted and when Enclosure 29a was filed. There was no reasonable explanation by the appellant as to the delay in making the application. Thus, we are of the view that if there was any basis on the allegation that the trial judge was biased, the Memorandum of Appeal would have incorporated the grounds which the appellant now seek to include as additional grounds of appeal.
7. Secondly, the application in Enclosure 29a is more of a tactical manoeuvre on the part of the appellant. It is observed that Enclosure 29a was filed shortly after another Notice of Motion (“Enclosure 6a”) filed by the appellant was dismissed by this Court. In Enclosure 6a, the appellant was applying that certain remarks, exhortation and/or statement allegedly uttered by the trial judge and Mr. Tai Choi Yu, a witness for the appellant in the suit, be included in the Notes of Proceedings in the Record of Appeal.
8. Enclosure 6a was heard and dismissed by this Court in November 2006. One of the reasons why Enclosure 6a was dismissed was because there was no allegation of bias against the trial judge by the appellant in the Memorandum of Appeal. In this respect, the appellant had applied for leave to the Federal Court against the dismissal of Enclosure 6a. Thus, it is clear to us that the order sought for Enclosure 29a is more to address the shortcomings in the Memorandum of Appeal which
resulted in Enclosure 6a being dismissed by this Court. Enclosure 29a is nothing but to bolster the appellant’s pending application for leave to the Federal Court against the dismissal of Enclosure 6a.
8. It is on the above grounds that we dismissed the appellant’s application in Enclosure 29a with costs.
Dated 19 June 2008.
Raus Sharif Judge
Court of Appeal Malaysia
Counsel for the applicant: Solicitors for the applicant: Counsel for the 1st respondent: Solicitors for the 1st respondent:
Counsel for the 2nd respondent:
Solicitors for the 2nd respondent:
En. Ranbir Singh Sangha
Tetuan Tai Choi Yu & Co.
Puan Ivy Suli Untup
Pejabat Undang-Undang Negeri Sarawak
Cik Perpetua Phang En. Tan Thiam Teck
Tetuan Reddi & Co.