Administrative Law (LAW 309) Remedies PDF

ADMINISTRATIVE LAW (LAW 309) CHAPTER FIVE REMEDIES Presented by: HAZLINA BINTI MOHD PADIL FCIS (CS) (CGP) LL.M in Business Law (Executive), LL.B Wales (Aberystwyth), CLP, Postgrad. Dip in Shariah Law &...

ADMINISTRATIVE LAW (LAW 309) CHAPTER FIVE REMEDIES Presented by: HAZLINA BINTI MOHD PADIL FCIS (CS) (CGP) LL.M in Business Law (Executive), LL.B Wales (Aberystwyth), CLP, Postgrad. Dip in Shariah Law & Practice, ICSA Advocate & Solicitor (Ceased Practise), Chartered Secretary 1  INTRODUCTION When a person is aggrieved at the hands of the administration because of an infringement of his or her rights, or deprivation of interests, that person will want a remedy against that administration. This chapter deals with the types of remedies that could be applied by the aggrieved party who sought for judicial review of administrative action. 2  INTRODUCTION A remedy is defined as a form of court enforcement of a legal right resulting from a successful civil lawsuit. The effectiveness of a system of Administrative Law depends on the effectiveness of remedy and redress which can be provided to that person. 3  INTRODUCTION Court control over administrative action is exercised in several ways: (i) through supervisory judicial review (ii) via statutory judicial remedies 4  INTRODUCTION A review court does not substitute its own decision for that of the original decision-making body upon a re-examination of the merits. A review court can only grant one or more of the specific remedies e.g. quashing the decision of the decision- making body. 5  INTRODUCTION Hotel Equatorial (M) Sdn Bhd v National Union of Hotel, Bar and Restaurant Workers Federal Court underlined the scope of judicial review where he stated, “In the exercise of its inherent supervisory jurisdiction over the inferior tribunals of limited jurisdiction the High Court must always remember that it is not sitting as a Court of Appeal to review the findings of the inferior tribunals … its only function is to consider whether the inferior tribunal has performed its duties according to law. A clear distinction must be maintained between want of jurisdiction and the manner of its exercise, otherwise review for jurisdictional error will be equivalent to review on merit” 6  To release someone Habeas Corpus from unlawful detention To quash / revoke / Certiorari cancel a decision To prohibit a public authority from Prohibition continuing with the Remedies Available case Under the To force an Administrative Law authority to Mandamus perform a public duty To order an Injunction authority not to perform something Declaration To declare a legal right of a person 7 COURTS OF JUDICATURE ACT 1964 Powers of the High Court 25. (1) Without prejudice to the generality of Article 121 of the Constitution the High Court shall in the exercise of its jurisdiction have all the powers which were vested in it immediately prior to Malaysia Day and such other powers as may be vested in it by any written law in force within its local jurisdiction. (2) Without prejudice to the generality of subsection (1) the High Court shall have the additional powers set out in the Schedule: Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same. 8 COURTS OF JUDICATURE ACT 1964 SCHEDULE - [Subsection 25(2)] – ADDITIONAL ADDITIONAL POWERS OF HIGH COURT Prerogative writs 1. Power to issue to any person or authority directions, orders or writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others, for the enforcement of the rights conferred by Part II of the Constitution, or any of them, or for any purpose. 9  (1) HABEAS CORPUS 10  HABEAS CORPUS Definition It is a Latin word for ‘you have the body’. Wharton's Law Lexicon defines habeas corpus as follows: "This, the most celebrated prerogative writ in the English Law, is a remedy for a person deprived of his liberty. It is addressed to him who detains another in custody, and commands him to produce the body, with the day and cause of his caption and detention and to do, submit to, and receive whatever the judge or court shall consider in that behalf.“ Review of detention 11  HABEAS CORPUS The High Court will quash an illegal arrest of a person by issuing habeas corous. The order is issued to the person who has the custody of the aggrieved person to deliver up to that person. A prayer for the order may be made by the prisoner, or if unable to do so, by someone acting on behalf of the prisoner The writ of habeas corpus was called ‘the greatest of the great prerogative remedies’ in R v Maidstone Crown Court; ex parte Clark. 12  HABEAS CORPUS Yeap Hock Seng @ Ah Seng v Minister for Home Affairs, Malaysia (1975) Abdoolcader J, “Habeas corpus is a high prerogative writ of summary character for the enforcement of this cherished civil right of personal liberty and entitles the subject of detention to a judicial determination that the administrative order adduce as warrant for the detention is legally valid …” 13  HABEAS CORPUS RELEVANT PROVISIONS 1) ART 5(1) OF THE FC ‘No person shall be deprived of his life or personal liberty save in accordance with the law’. 2) ART 5(2) OF THE FC ‘Where a complaint is made to a High Court or any judge thereof that a person is being unlawfully detained, the court shall inquire into the complaint and unless satisfied that the detention is lawful, shall order him to be produced before the court and release him’. 14  HABEAS CORPUS 3) Section 365 of the CRIMINAL PROCEDURE CODE (CPC) “the High Court may whenever it thinks fit direct that any person, who is alleged to be illegally or improperly detained in public or private custody within the limits of the Federation, be set at liberty” 15  HABEAS CORPUS 4) Order 53 of the Rules of Court 2012 govern all applications seeking the relief specified in paragraph 1 of the Schedule to the Court of Judicature Act 1964 such as habeas corpus, mandamus, certiorari etc. Case: Munusamy v Subramaniam 2 MLJ 108 16  HABEAS CORPUS Munusamy v Subramaniam 2 MLJ 108 The issue raised in this case is whether the application for the writ of habeas corpus can be proceeded with by way of originating summons? The court held that the power to issue directions, orders, or writs of the nature of habeas corpus for the enforcements of any of the rights under Part II is subject to the proviso contained in sub-section (2) of section 25 of the Courts of Judicature Act 1964, which provides that:– "All such powers shall be exercised in accordance with any written law or Rules of Court relating to the same." 17  HABEAS CORPUS continue … The only written law relating to directions of the nature of habeas corpus can be found under s365 of the CPC which provides powers to the court of a judge to direct that any person who is alleged to be illegally or improperly detained in public or private custody within the limits of the Federation is to be set at liberty. Hence, the application for a writ of habeas corpus in the present case relates to a matter which is covered by s365 of the CPC, and in view of s25 of the Courts Judicature Act, that the proper procedure would be for the applicant to apply under s365 and not by way of ex- parte originating summons in chambers. 18  HABEAS CORPUS - Unlawful Arrest - Situations where Habeas Corpus have been applied 1) Unlawful Arrest A situation where a person is detained without a just cause. Case: Ahmad Bashid Abdul Malek & Ors v Timbalan Menteri Dalam Negeri 3 CLJ 745 19  HABEAS CORPUS - Unlawful Arrest - Ahmad Bashid Abdul Malek & Ors v Timbalan Menteri Dalam Negeri, Kementerian Dalam Negeri, Malaysia 3 CLJ 745 In this case, the appellant was detained by the police on 16 September 1997 as a suspected drug dependant and produced before the magistrate at Sitiawan on 29 September 1997. After holding an inquiry, the magistrate ordered him to be detained for a period of two years at the Pusat Serenti, Sungai Petani, Kedah. 20  HABEAS CORPUS - Unlawful Arrest - Continue … Dissatisfied with the magistrates' detention orders, the appellant filed an application for writ of habeas corpus to be issued against the named respondents under Chapter XXXVI of the Criminal Procedure Code, to secure their immediate releases. the application by way of habeas corpus was made by the appellants on the ground that certain mandatory procedures in the Act were breached and not duly followed before the learned magistrate made the order of detention under s. 6 of the Act. 21  HABEAS CORPUS - Unlawful Arrest - Continue … The isse for consideration was whether the appellants should have applied for certiorari instead of proceedin by was of habeas corpus. The court held that the applicant has the right to make application for habeas corpus if he alleges his detention was illegal as proper procedures were not followed by the officer ordering the detention. Siti Norma Yaakob JCA held that the appellants had chosen the speedier and less cumbersome remedy of habeas corpus, the alternative to certiorari. For that reason, the High Court should have proceeded to hear their applications on merit and not be bothered with procedural technicalities. 22  HABEAS CORPUS The grant of habeas corpus is as of right and it is not within the discretion of the court to issue or not to issue the order if the person has been unlawfully arrested. Datuk Harun bin Haji Idris v Officer-in-Charge, Pudu Prison Habeas corpus is not issued if the complainant is under lawful, and not unlawful, arrest, eg when undergoing a sentence of imprisonment on a criminal charge pronounced by a court of competent jurisdiction or is arrested on reasonable suspicion of having committed a crime. 23  HABEAS CORPUS Ooi Ah Phua v Officer-in-Charge, Criminal Investigation, Kedah/Perlis Ooi was detained as there was reasonable suspicion that he was involved in armed robbery. By the time he filed his application for habeas corpus, he had been detained under an order of magistrate. His application was rejected because his detention was lawful. 24  HABEAS CORPUS - Res Judicata- 2) Repetition of Hearing (Res Judicata) Res Judicata is a Latin word for ’a thing adjudged’. It is defined as a rule that a final judgment on the merits by a court having jurisdiction is conclusive between the parties to a suit as to all matters that were litigated or that could have been litigated in that suit. Rule against repetition of hearing. Case: Abdul Hamid bin Jamal v PP MLJ 46 25  HABEAS CORPUS - Res Judicata - Abdul Hamid bin Jamal v PP MLJ 46 The applicant was detained under the Extradition Enactment. Because of insufficient evidence, he was discharged. He was then rearrested on the same charge. Court held that it was wrong to reopen the same issue again. A person cannot be retried again for the same offence. 26  HABEAS CORPUS - On Bail - 3) On Bail In general, a person on bail could not by any stretch of imagination be said to be detained in custody and was therefore not entitled to a writ of habeas corpus. Case: Re Onkar Shrian 1 MLJ 28 27  HABEAS CORPUS - On Bail - Re Onkar Shrian 1 MLJ 28 The Singaporean Court held that a person on bail after his arrest is not entitled to a writ of habeas corpus because he is not under unlawful arrest. 28  HABEAS CORPUS - Delayed / Long Term Detention- 4) Delayed / Long Term Detention This is a situation where a person is being detained for a long period of time. Case: Lui Ah Yong v Superintendent of Prisons, Penang 2 MLJ 226 29  HABEAS CORPUS - Delayed / Long Term Detention- Lui Ah Yong v Superintendent of Prisons, Penang 2 MLJ 226 In May 1967, the applicant was arrested and detained by the police for illegal entry into the Federation from China. On August 24, 1967, he was charged in court for an offence under section 6(1) of the Immigration Ordinance 12/59 for entering the country illegally and for using a forged blue identity card. He pleaded guilty to both charges and was sentenced to two month's imprisonment for the first charge and three month's imprisonment for the second charge. 30  HABEAS CORPUS - Delayed / Long Term Detention- Continue … The High Court issued HC to the claimant because his continued detention had become invalid due to the provision under Sec.34 (1) of the Immigration Ordinance which made it necessary to detain someone for the purpose of making arrangements for his removal. Since no country was willing to accept him, his further detention had become unlawful. 31  HABEAS CORPUS - Breach of Procedural Requirements- 5) Breach of Procedural Requirements It is against the law not to follow the mandatory procedure; hence, if a person is detained without observing the mandatory procedure, habeas corpus can be issued because the detention has become unlawful. Case: Aw Ngoh Leang v IGP 1 CLJ 373 32  HABEAS CORPUS - Breach of Procedural Requirements- Aw Ngoh Leang v IGP 1 CLJ 373 The appellant who was under preventive detention sought an order for habeas corpus on the ground that there was a breach of the provisions of Rule 3(2) of the Public Order and Prevention of Crime (Procedure) Rules 1972 in that he was only given one copy of Form 1 when the rules required that he be provided with a minimum of two copies of the said form. It was held that habeas corpus was granted because any disobedience of the mandatory requirements for the protection of this right would cause any order of detention to be flawed even if the detainee suffers no real prejudice. 33  HABEAS CORPUS - Preventive Detention- 6) Preventive Detention Sometimes a person is detained without hearing/trial and verdict from the court. Re Tan Sri Raja Khalid bin Raja Harun Application was made because the applicant was detained for state security. Reason to detain: he had approved the loan where the lenders had failed to pay back thus the bank had suffered the lost. Held: HC was granted as it could not be considered as an act that could put the country in danger. 34  (2) CERTIORARI 35  CERTIORARI Latin word for ‘to be informed’. DEFINITION It is an order to remove or quash the administrative decision. It is entirely a discretionary remedy of the High Court. NATURE Case : Moo Ng v Kiwi Products Sdn Bhd, Johor 3 CLJ 475 The applicant must have locus standi. Locus Standi is the right of REQUIREMENT a party to bring an action. Case : Dr Chan Choo Lip v Malaysian Medical Council & Anor 8 CLJ 992 36  CERTIORARI Moo Ng v Kiwi Products Sdn Bhd, Johor 3 CLJ 475 Certiorari is entirely a discretionary remedy of the High Court - it is extraordinary. The High Court will simply refuse to issue certiorari if the applicant has suffered no real injustice, or the application lacks real merit, or for that matter if the applicant has failed to disclose relevant facts. 37  CERTIORARI Dr Chan Choo Lip v Malaysian Medical Council & Anor 8 CLJ 992 The applicant is a doctor and was registered under the Medical Act 1971 and Medical Regulations 1974. In 2008 he was charged with 33 counts of offences under the Poisons (Psychotropic Substances) Regulations 1989 and the Drugs & Cosmetic Regulations 1984. However, by a court order dated 28 January 2009 and on 27 August 2009 respectively, he was acquitted of all 33 charges. 38  CERTIORARI Continue … However, on 20 November 2008, the Malaysian Medical Council wrote to the applicant to inform him that the Malaysian Medical Council would be holding an inquiry against him on 26 February 2009. The applicant has now filed an application for leave to issue a writ of certiorari to quash the decision of the Malaysian Medical Council (the 1st respondent) to hold the said inquiry. The court held that the applicant has no locus standi in this case by virtue of O. 53 r. 2 of the Rules of the High Court 1980. Order 53 r. 2 provides that, “Any persons who is adversely affected by the decision of any public authority shall be entitled to make the application.” 39  CERTIORARI Continue … Since the Council has yet to make a decision which is adverse against the applicant so this application is in fact premature. There is therefore no decision which is adverse to him which needs to be further examined and argued. On the same reasoning the applicant lacks the locus standi to make this leave application and it must be refused. 40  CERTIORARI - Non-Compliance with the Rules of Natural Justice - SITUATIONS WHERE CERTIORARI CAN BE APPLIED 1) Non-Compliance with the Rules of Natural Justice. Where audi alteram partem and nemo judex in sua causa are not observed. - Cases: a) Malayawata Steel Bhd b) Metropolitan Properties v Lannon 41  CERTIORARI - Excess of Jurisdiction- 2) Excess of Jurisdiction This is in situation where the administrator has acted in an ultra vires way either in the making of subsidiary legislation or exercising its discretionary power. Case: Telekom Malaysia Bhd v Tribunal Tuntutan Pengguna & Anor 1 CLJ 300 42  CERTIORARI - Excess of Jurisdiction- Telekom Malaysia Bhd v Tribunal Tuntutan Pengguna & Anor 1 CLJ 300 In this case, the second respondent had disputed the applicant's two bills of RM98 each pertaining to the use of telecommunication services provided by the latter. Before the first respondent Tribunal (established under the Consumer Protection Act 1999 ('the CPA')), the second respondent argued that he had not made the international calls in question and that the calls were generated by the Internet Services without his consent. Subscribing to the argument, the Tribunal allowed the claim, ruling that there was wire-tapping of the communications services by an unidentified person who made the international calls while the second respondent was surfing the Internet. 43  CERTIORARI - Excess of Jurisdiction - Continue … The applicant contended that the awards were ultra vires as the Tribunal had no jurisdiction to hear the dispute, and in the circumstances applied for an order of certiorari to quash the same. According to the applicant, the service of telecommunications provided by them involved electromagnetic waves to which the CPA had no application by virtue of its s. 2(2)(g). It was further argued, as a matter of law, that the trade transaction herein must come within the domains of the Communications and Multimedia Act 1998 ('the CMA'), and not the CPA. 44  CERTIORARI - Excess of Jurisdiction - Continue … The court held that the CMA 1998 was clearly enacted to, inter alia, provide for consumer protection in the telecommunications industry, the CPA 1999 is not intended to apply to the hearing of a dispute arising from the same industry. Hence, as the award was made by the tribunal in respect of a subject matter beyond its jurisdiction and ultra vires, it is not legally sustainable, with the result that it is hereby quashed by way of certiorari. 45  CERTIORARI - Decision made is based on facts not supported by any evidence - 3) Decision made is based on facts not supported by any evidence The court will only interfere if the findings of facts is not supported by any evidence at all; NOT if there is any inadequacy or insufficiency of evidence. Case: V.C. Jacob v Attorney General 2 MLJ 133 46  CERTIORARI - Decision made is based on facts not supported by any evidence - V.C. Jacob v Attorney General 2 MLJ 133 The plaintiff was dismissed from government service by the Public Service Commission after an enquiry having been held by an enquiry committee into certain charges against him. The plaintiff challenged his dismissal on the ground that there was no basis upon which any reasonable person could come to the conclusion that the plaintiff was guilty of the allegation. Held: Rejecting the contention the court stated that tribunals will not interfere in merely on the ground of insufficiency of evidence. If there is some evidence to support a finding of facts courts do not interfere and will not quashed the findings made in the case. 47  CERTIORARI - Defects in Mandatory Procedure- 4) Defects in Mandatory Procedure General Rule: Certiorari will be granted when there is defect in mandatory procedure. On the other hand, non-observance of directory procedure only amounts to irregularity – certiorari will not be granted. Case: Wong Yet Eng v Chin Cheng Foo 1 MLJ 36 48  CERTIORARI - Defects in Mandatory Procedure- Wong Yet Eng v Chin Cheng Foo 1 MLJ 36 In this case, the Appeal Board failed to decide within the time limit and this was challenged. The Federal Court ruled that the requirement as to the time limit within which to decide was directory rather than mandatory and that non- compliance therewith would not nullify the Board’s decision. 49  (3) PROHIBITION 50  PROHIBITION Prohibition is an order to a tribunal, public body or official requiring it to cease proceedings. DEFINITION An order for prohibition should be sought where a body has failed to exercise its jurisdiction properly or failed to provide natural justice and its proceedings are continuing. To prohibit a body from continuing with the case further. It will bar or stop the administrators PURPOSE from using any powers which are not conferred on them 51  PROHIBITION The applicant must have locus standi. Locus Standi is the right of a party to REQUIREMENT bring an action. Case: R v Greater London Council exp Blackburn 1 WLR 550 This remedy is issued BEFORE the body concerned completes its REMEMBER! determination; i.e: BEFORE the result is achieved. 52  PROHIBITION R v Greater London Council exp Blackburn 1 WLR 550 Blackburn applied for prohibition against the council to stop it from allowing, contrary to law, exhibition of pornographic film in London Cinemas. The question was whether he had locus standi to bring the case before the court. The court held that since he was a London citizen, his wife was a rate payer and he had children who might be harmed by the exhibition of pornographic films, he had sufficient interest over the matter. 53  PROHIBITION Situations Where Prohibition Can Be Applied Situations to apply for prohibition are the same with certiorari namely: a) Non-compliance with the Rules of Natural Justice b) Excess of Jurisdiction Case: Kojasa Holdings Bhd v Mahkamah Perusahaan Malaysia c) Decision made is based on facts not supported by any evidence d) Defects in Mandatory Procedure Case: Peter Chong Ngen Onn v Colonel Adam bin Abu Bakar 2 MLJ 142 54  PROHIBITION Kojasa Holdings Bhd v Mahkamah Perusahaan Malaysia The applicant sought prohibition to stop the Industrial Court from hearing a dismissal case of its ex-employee, a Sri Lankan citizen, whom they had dismissed from the company because of some irregularities. However, the dismissal was carried out after the employee was transferred to a subsidiary company in Singapore. The remedy of prohibition was sought by the applicant on the ground that the Industrial Court did not have jurisdiction to hear the case. It was held that the High Court granted prohibition because the Industrial Court had no extra territorial jurisdiction since the employee was employed in Singapore. 55  PROHIBITION Peter Chong Ngen Onn v Colonel Adam bin Abu Bakar 2 MLJ 142 The Federal Court upheld the decision of the High Court in refusing prohibition in this instant case because the procedural defect was directory not mandatory. 56  (4) MANDAMUS 57  MANDAMUS Latin word for ‘we command’. Mandamus is an order issued by the court against a tribunal, public body or official requiring it to perform a duty that it has failed to perform. DEFINITION For example, an official might be required to consider an application for a licence that it had refused to consider. 58  MANDAMUS (Refer Sec 44 of the Specific Relief Act 1950) 1) The applicant must have locus standi. Locus Standi is the right of a party to bring an action. 2) The public officer must have a legal duty REQUIREMENTS Case: Koon Hoi Chow v Pretam Singh 1 LNS 56 3) The applicant has no other specific and adequate remedy. Case: Chan Mun Poy v Director- General of Telecommunications & Anor 2 MLJ 293 4) The remedy given by the order applied for will be completed. 59  MANDAMUS Section 44 of the Specific Relief Act 1950 Power to order public servants and others to do certain specific acts 44. (1) A Judge may make an order requiring any specific act to be done or forborne, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or any court subordinate to the High Court: Provided that— (a) an application for such an order be made by some person whose property, franchise, or personal right would be injured by the forbearing or doing, as the case may be, of the said specific act; (b) such doing or forbearing is, under any law for the time being in force, clearly incumbent on the person or court in his or its public character, or on the corporation in its corporate character; (c) in the opinion of the Judge the doing or forbearing is consonant to right and justice; (d) the applicant has no other specific and adequate legal remedy; and (e) the remedy given by the order applied for will be complete. 60  MANDAMUS Koon Hoi Chow v Pretam Singh 1 LNS 56 The applicant in this case wished to get a report from the defendant concerning a patient in the defendant’s hospital that he knocked down in an accident. When it was refused, he claimed mandamus to force the defendant to provide him with the report. It was held that the court refused to grant mandamus because the doctor did not have any legal duty to supply the applicant with the report. 61  MANDAMUS Chan Mun Poy v Director-General of Telecommunications & Anor 2 MLJ 293 The applicant sought mandamus to compel the defendant to reinstall his telephone lines after they were wrongfully disconnected by the defendant. The court decided that the applicant had another alternative remedy in contract rather than to apply for mandamus because his relationship with the defendant was contractual in nature. 62  (5) INJUNCTION 63  INJUNCTION Injunction is defined as a court order by which an individual is required to perform, or is restrained from performing a particular act. There are 5 types of injunction: a) Temporary Injunction b) Perpetual Injunction c) Mareva Injunction d) Anton Pillar Injunction e) Erinford Properties Injunction 64  INJUNCTION A) TEMPORARY INJUNCTION Is a court order issued to a party that requires him to either act or refrain from taking certain action until after a trial on a DEFINITION disputed matter can be held. Also referred as interlocutory or interim injunction. to preserve the status quo between two parties, so that one of the parties does not PURPOSE suffer irreparable injury as a result of the actions of another, while a determination of legal issues is pending in a court action. 65  INJUNCTION Sec. 51 (1) of the Specific Relief Act 1950- ‘Temporary injunctions are such as are to RELEVANT continue until a specified time, or until the PROVISION further order of the court. The y may be granted at any period of a suit, and are regulated by the law’ Can be granted ex parte (by one party alone) NATURE May be granted at any stage of a suit Is granted at the court’s discretion a) American Cyanamid v Ethicon Ltd CASES b) Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd 1 CLJ 701 66  INJUNCTION American Cyanamid v Ethicon Ltd In order to grant temporary injunction, the court must be satisfied that the case is a serious case to be tried. This is determined by identifying whether there is any evidence showing that the plaintiff has a good prospect of securing the permanent injunction at the end of the trial. 67  INJUNCTION Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd 1 CLJ 701 Kekatong Sdn Bhd (the respondent herein) applied for an interlocutory injunction against Danaharta Urus Sdn Bhd (the appellant herein) to restrain it from selling its charged land under the Pengurusan Danaharta Nasional Berhad Act 1998 ('the Act'). The High Court dismissed the application on the ground that there was no serious question to be tried and that s. 72 of the Act barred the court from granting the injunction against the appellant. 68  INJUNCTION B) PERPETUAL INJUNCTION Also known as permanent injunction. It is a type of order issued by a court after a full trial DEFINITION on the merits of a case has been conducted. It is ordered at the time of final judgment. This type of injunction must always be a final relief. S51(2) of the Specific Relief Act 1950 RELEVANT S52(1) of the Specific Relief Act 1950 PROVISIONS S52(3) of the Specific Relief Act 1950 S53 of the Specific Relief Act 1950 69  INJUNCTION 1) Section 51(2) of the Specific Relief Act 1950 Once granted, the defendant is perpetually restrained from asserting right, or form continuing an act, which would be contrary to the rights of the plaintiff. 70  INJUNCTION 2) Section 52(1) of the Specific Relief Act 1950 Perpetual Injunction may be granted to prevent the breach of an obligation existing in favour of the applicant. 3) Section 52(3) of the Specific Relief Act 1950 Court may grant Perpetual Injunction when the Defendant invades or threatens to invade the plaintiff’s right to or enjoyment of property where there exists no standard to ascertain actual damage cause. 4) Section 53 of the SRA 1950 If it is necessary to compel the performance of certain acts in order to prevent the breach of an obligation, the court may in its discretion grant perpetual injunction. 71  INJUNCTION C) MAREVA INJUNCTION It is a type of interlocutory relief designed to freeze the assets of a defendant, in DEFINITION appropriate circumstances, pending determination of a plaintiff's claim. to freeze all the defendant’s property before it could be disposed off from the PURPOSE date the writ was issued until judgment made by the court. 72  INJUNCTION S25 of the Court of Judicature Act (orders for interim payment) RELEVANT S50 (injunction is granted at the discretion PROVISIONS of the court) and 51 (temporary and perpetual injunction) of the SRA 1950 Mareva Companies Mariera SA v International Bulk Carrier SA CASES Ang Chee Huat v Thomas Joseph Engelbach 2 CLJ 893 73  INJUNCTION Mareva Companies Mariera SA v International Bulk Carrier SA The defendant (voyage charterers) had failed to fully pay freight to the plaintiff (the shipowners) for the voyage charter. They have partially paid the freight in instalments by credit transferred to the shipowners to one Bank of Bilbao in London for the total sum of £174,000. Because of the failure to pay, the shipowners treated the charterers’ conduct as a repudiation of the charter. They issued a writ on 20 June. They claimed the unpaid hire, which comes to $US30,800, and damages for the repudiation. But meanwhile they believe that there is a grave danger that these moneys in the bank in London will disappear. So they have applied for an injunction to restrain the disposal of those moneys which are now in the bank. 74  INJUNCTION Continue … Lord Denning in his judgement held that; “If it appears that the debt is due and owing, and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him disposing of those assets. It seems to me that this is a proper case for the exercise of this jurisdiction. There is money in a bank in London which stands in the name of these charterers. The charterers have control of it. They may at any time dispose of it or remove it out of this country. If they do so, the shipowners may never get their charter hire. The ship is now on the high seas. It has passed Cape Town on its way to India. It will complete the voyage and the cargo will be discharged. And the shipowners may not get their charter hire at all … 75  INJUNCTION Continue … …In face of this danger, I think this court ought to grant an injunction to restrain the charterers from disposing of these moneys now in the bank in London until the trial or judgment in this action. If the charterers have any grievance about it when they hear of it, they can apply to discharge it. But meanwhile the shipowners should be protected. It is only just and right that this court should grant an injunction.’ 76  INJUNCTION Ang Chee Huat v Thomas Joseph Engelbach 2 CLJ 893 The court granted Mareva Injunction to the respondent in this claim against the appellant who had falsely represented terms of a contract between them. The court was satisfied that there was a real risk of the appellant disposing the assets within jurisdiction. 77  INJUNCTION D) ANTON PILLAR INJUNCTION It is a type of injunction where the applicant wishes to stop the defendant from destroying any important materials DEFINITION that may be the cause the suit is filed. Usually, they include materials such as documents and important record which can be used as main evidence in the trial. The court in Malaysia may issue Anton Pillar Injunction under Order 24 Rule 7(2) RELEVANT of the High Court Rules 1980 on common PROVISION law. New Order 24 of the Rules of Court 2012 only refer to discovery of documents 78  INJUNCTION Anton Pillar KG v Manufacturing Process Ltd In this case, the plaintiff had succeeded in claiming this injunction to stop the defendant, who was their agent, from Case destroying important documents which had secret information concerning their company to a rival company. The injunction gave the plaintiff the right to enter the defendant’s premises and carry out investigations including making copies of the said documents. 79  INJUNCTION E) ERINFORD PROPERTIES INJUNCTION A stay order until the appeal is heard. DEFINITION When interim injunction is refused, the plaintiff can apply EPI pending appeal against the refusal of the interim injunction. To maintain the status quo of the parties pending appeal to prevent PURPOSE the appeal from being rendered nugatory. 80  INJUNCTION Erinford Properties Ltd v Cheshire County Council Ch 261 The court granted injunction Case for the purpose of preserving the status quo pending an appeal even though at the first instance it had refused to grant an interim injunction. 81  (6) DECLARATION 82  DECLARATION It declares the legal right of a DEFINITION person. S41 of the SRA 1950 – ‘Any person entitled to a legal character or to any RELEVANT rights as to property, may institute a PROVISION suit against any person denying, or interested to deny, his title to the character or right’. The applicant must have locus standi. Locus Standi is the right of a party to REQUIREMENTS bring an action. There must be no other alternative remedy available. Case – Eshah bt Saat v Meriam bt Saat 83  DECLARATION Eshah bt Saat v Meriam bt Saat The plaintiff sought an order of declaration when the Collector of Land Revenue ordered the defendant to be registered as the proprietor of certain lands, saying that she was entitled to the land in question. The High Court refused to grant it based on several reasons:- 1) There was an alternative remedy available for her – she could have appealed to the Collector of Land Revenue 2) She did not apply for certiorari to quash the Collector’s decision 3) The Collector was not made a party to the action 4) There had been considerable delay in asking for declaration 84 RELATOR ACTION 85  RELATOR ACTION This is where an individual applies to the Attorney General to bring the case to the court against the public authority DEFINITION because lack of locus standi. The AG may challenge the decision made by the public bodies at his discretion. McWhirter v Independent Broadcasting CASE Authority QB 629 86  RELATOR ACTION McWhirter v Independent Broadcasting Authority QB 629 The applicant tried to seek for injunction to prevent the defendant from showing an indecent film on the TV. When the AG refused to undertake a relator action, he himself brought the case to the court. The Court of Appeal granted him the injunction because the judge was satisfied that he had sufficient interest to bring the case to the court. 87 THE END 88