D+22 A-395-2WS, D+22 A-399-2W5
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22
DECISION
GROUNDSOF
reason.He arguedthat, following the doctrineof staredecisis,this court is
bound by the decisionof the Court of Appeal n Lim Kok Hoe which had
given full acknowledgement
of the right of the bankto enforcepaymentof
the full sale price under the PSA.
The basis of his contentionis as
follows. The Court of Appeal in Lim Kok Hoe referredto the casesof
Bank Islam Maloysia Bhd v Adnan Omar [1994J 3 CIJ 735,Datuk Hj. Nik
Mahmud Nik Doud v Bank Islam Malaysia Bhd fl998J 3 CIJ 605, and
Bank Kerjasama Rakyat Malaysia Bhd v Emcee Corporation Sdn Bhd
[2003J] CIJ 625. All these casesare basedon BBA contractswhich
accordingto the learnedcounselwereupheldby the SuperiorCourt. In all
of themthe full saleprice hasbeenallowed.
25.
BeforeI deliberateon the issueof staredecisis,it would be usefulto
appraise ourselveson the application of this doctrine. Stare decisis,
accordingto Oxford Dictionaryof Law 5ft editionliterally means'to stand
by things decided." This is the maxim which underlaythe basis of the
doctrineof bindingprecedent.It is necessary
to abideby formerprecedent
when the samepoints ariseagainin litigation. In otherwords,it is to stick
with what has been decided. It is axiomaticthat the principle of stare
decisisoperateson the basisthat "like casesshouldbe decidedalike". The
application of this doctrine in England is found in Young v Brtsbl
AeroplaneCo Ltd (1944)I KB 7I8.ln that casethe Court of Appeatheld
4,-
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23
GROTJNDS
OF DECISION
that the Houseof Lord's decisionbinds the Court of Appeal and that the
court is bound by its own eadier decisionsexcept for three situations
namely:
(i)
the court is entitledto decidewhich of the two conflicting
decisionsof its own to follow:
(ii)
the court can refuseto follow a decisionof its own which.
though not expressly ovemtled, cannot in its opinion,
standwith a decisionof the Houseof Lords: and
(iii)
the courtis not boundto follow a decisionof its own if it is
satisfiedthat the decisionwas givenper incuriam.
Per incurian refers to a judgment of a court which has been decided
without referenceto a statutoryprovision or earlierrelevantjudgment. A
judgmentper irrcuriamneednot be followed as precedent.A lower court
therefore,is free to departfrom an earlierjudgment of a superior court
where that earlier judgment was decided per incuriam. However,
ordinarily in the common law jurisdiction, the ratio decidendi of a
judgmentmustbe followed andis saidto be binding on the court below.
26.
The sameprinciple was also adoptedby the courts in Malaysia.In
Dolip BaghwanSingh v Public Prosecutor[1998] I MIJ /, the Federal
Court referredto Youngv Bristol Aeroplane Co Ltd F944J I KB 718 and,
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24
GROTJNDS
OFDECISION
held that the doctrineof stare decisisdictatesthat a court, other than the
highestcour! is obligedgenerallyto follow the decisionsof the courtsat a
higher level or at the samelevel. ln Dato' TanHeng Chewv TanKim Hor
& Another Appeal [2006] I CIJ 577 the FederalCourt finds that this
doctrinehas attainedto statusof immutability andjudicial hierarchy,and
must be observedto avoid uncertaintyin the law. In LembagaTatatertib
PerkhidmatanAwam Hospital BesarPulau Pinang & Anor v Utra Badi a/l
K Perumal[2001J 2 MIJ 4]7 the FederalCourt statesthat it is necessary
for eachlower tier in the court structureto acceptloyally the decisionof
the higher tiers and chaotic consequences
would follow shouldthe lower
tier fail in this duty. ln Hairul Hisham bin Salim v Dato' Zainal Abidin
[2003J 5 MIJ 567,the court obseruesthat,"the principle of stare decisis
encapsulatethe doctrine that a ratio decidendiof a superior court mwt be
followed ond is binding on the court below". The ratio decidendiof a case
can be defined as the principle of law on which the court reachesits
decision.It hasto be deducedfrom the factsand the reasonsthat the court
givesfor reachingits decisionaswell asthe decisionitself.
27.
Coming back to the presentcase,the pertinentquestionto be asked
is what then of the Court of Appeal decisionn Lim Kok Hoe that binds
this court, bearing in mind that under the doctrine of stare decisive that
binding precedentis the ratio decidendi. It must be notedat the outsetthat