Tutorial Attempt - CLEO PDF

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Tutorial - CLEO ISSUE Assuming that the High Court of Sabah and Sarawak had no jurisdiction to hear Cleo’s action, the issue is whether Cleo may apply to the Judge to invoke his inherent power not to strike out Cleo’s action. LAW What is Inherent Power? According to Sir Jack Jacob, ‘inherent power’ is defined as the residual source of powers, which the court may draw upon as necessary whenever it is just and equitable to do so in particular, to ensure the observance of the due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them. Order 1A of the Rules of Court 2012 provides that In administering these rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules. Order 2 Rule 1 of the Rules of Court 2012 provides that Where in the beginning or at any stage of proceedings there has been non-compliance with the requirements of these Rules, the non-compliance shall be treated as an irregularity and shall not nullify the proceedings. The Court may exercise its inherent powers on the ground that there has been non-compliance with the Rules and cure any irregularities, subject to the overriding objective of these Rules meaning that if the irregularities are so fundamental and non-curable, the Court may be prevented to exercise its inherent powers and set aside the proceedings. Order 92 Rule 4 of the Rules of Court 2012 provides that For the removal of doubt it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. Article 121 of the Federal Constitution provides that -

There shall be two High Courts in Malaysia of co-ordinate jurisdiction, namely the High Court of Malaysia and the High Court of Sabah and Sarawak. Co-ordinate in this sense means that two of the High Courts has equal jurisdiction therefore there is no issue of ‘local’ or ‘territorial’ jurisdiction in which territorial jurisdiction means jurisdictions of the High Courts of Malaya is within territories of West Malaysia and the jurisdiction of the High Court of Sabah and Sarawak is within the territories of East Malaysia and and local jurisdiction sets out jurisdiction of the High Courts in Malaya and in Sabah and Sarawak as was held in the case of Syarikat Nip Kui Cheong Timber Contractor v Safety Life and General Insurance Sdn Bhd [1975] 1 LNS 173. The court in Duli Yang Amat Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah Mohd Noor & Another Appeal [2009] 4 CLJ 345, defined ‘technical non-compliance’ as non-compliance with a rule which is not fundamental or mandatory in nature by referring to the judgment in the case Gangadhar Dandawate v. Premechand Kashyap AIR [1958] MP 182, where the Court stated that a technical defect in law is one which may come within the four corners of it, but it does not affect the merits of the case. APPLICATION In the current situation, although the High Court of Sabah and Sarawak may exercise its inherent power, it may not do so due to the fact that they have no jurisdiction to hear the matter. Filing an application to the Court with no jurisdiction is a non-compliance under the statutory provision under Article 121 of the Federal Constitution and cannot be considered as mere technical non-compliance as defined in the case of Duli Yang Amat Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah Mohd Noor & Another Appeal. This non-compliance of the mandatory requirement is a fundamental non-compliance and goes to the root of the issue which is the jurisdiction of the court, therefore it is incurable even under Order 1A and Order 2 Rule 1 of the Rules of Court 2012. CONCLUSION In conclusion, Cleo may not be able to apply to the Judge not to strike out his action....