The Federal Court here today nullified applications for leave to appeal in a land dispute after it ruled there was quorum failure when former Court of Appeal president Alauddin Mohd Sheriff left the panel for a brief period in the midst of hearing.

Court of Appeal president Md Raus Sharif, presiding over a three-member panel, allowed the review application brought by lawyer Gurbachan Singh and his legal firm, Messrs Bachan & Kartar, receivers and manager of Simpang Empat Plantations Sdn Bhd, Regal Establishment (in which Gurbachan had an interest) and MBF Finance Berhad, to set aside the decision of its previous panel which refused to grant them leave to appeal.

He said the previous Federal Court panel was not duly constituted under Section 74 of the Courts of Judicature Act (CJA), because part of the hearing had been conducted only by two judges after Alauddin rose and left the bench during submission by the applicants’ lawyer.

Section 74 states that proceedings in the Federal Court shall be heard and disposed off by three judges, or a greater number of judges, as the chief justice may, in a particular case, determine.

Md Raus, who sat on the panel with Federal Court judges Ahmad Maarop and Hasan Lah, said the hearing became a nullity because Section 74 had been breached.

He said there had been a quorum failure because, by virtue of Section 74, the Federal Court must hear and dispose of cases by a minimum of three judges, but in the present case, there was a period where the leave to appeal applications were heard by only two judges.

He said, although there was a conflict of evidence on whether Alauddin did leave the bench, the court viewed that the applicants’ version of events (that Alauddin left the bench for a period of time before returning) was more probable.

“Based on affidavits and evidence available before us, we can safely hold that the chairperson of the panel (Alauddin) did leave the bench for a period before returning,” added Md Raus.

There were seven affidavits filed in support of the assertion that the chairperson of the three-man panel had left the bench for a brief period before returning, while the respondents challenged the allegation by filing two affidavits.

Md Raus said, in addition to the applicants’ affidavits, affidavits of persons without any interest in the proceedings, had also been filed to support their assertion.

The judiciary’s second top man held that this was another rare but appropriate case for the apex court to exercise its inherent powers to grant a review under Rule 137 of the Rules of the Federal Court 1995.

“We make an order that the leave applications be re-heard by a newly-constituted panel of this court,” he said.

Strict about invoking inherent powers

Md Raus said the Federal Court had always been strict in invoking its inherent powers to review its own decisions and in fact, over the years, there were not many instances where it had exercised such powers to review its decisions.

On April 21, 2010, the panel comprising Alauddin and Federal Court judges Hashim Yusoff and Suriyadi Halim Omar refused to grant leave to Gurbachan and his firm, receivers and manager of Simpang Empat Plantations, Regal and MBF Finance to appeal against the 2-1 majority appellate court order that they return a 1,472ha of land in Hutang Melintang, Perak worth RM80 million, to 217 estate workers.

The respondents, P Vellasamy and 216 sub-purchasers of the land, filed the suit against the applicants but they lost the legal battle in 2006 when the Ipoh High Court dismissed their suit.

They then took the matter up for appeal to the Court of Appeal which ruled in their favour.

In their statement of claim, the workers said they appointed Gurbachan and his firm as their solicitors to advise them on taking appropriate legal action after they found out that the land would be put up for sale by tender.

They claimed that Gurbachan had used Regal Establishment to purchase the land and had changed the ownership of the land to the company.

The workers said they discharged Gurbachan and his firm as their solicitors after realising the lawyer had fraudulently misrepresented them.

In their defence, Gurbachan and the other four denied all the allegations.

Lawyers Malik Imtiaz Sarwar, Harpal Singh Grewal and Jenine Anand Gill represented the applicants. The respondents were represented by lawyers Cecil Abrahamn, DP Vijandran and Sunil Abraham.

- Bernama