DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANG KUASA RAYUAN)

RAYUAN SIVIL NO. W-01(IM)-88-2011

ANTARA

FOO AH CHIN (No. K/P : 410704-05-5002) …… PERAYU

DAN

1. PENGETUA SEKOLAH MENENGAH KEBANGSAAN

ST. JOHN KUALA LUMPUR

2. PENGARAH JABATAN PELAJARAN

WILAYAH PERSEKUTUAN KUALA LUMPUR

3. NAJIBAH BINTI MOHAMMAD (NO. K/P : 570905-02-2580)

4. KERAJAAN MALAYSIA …. RESPONDEN-RESPONDEN

[MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

PERMOHONAN SEMAKAN KEHAKIMAN NO R2.25-4-2001]

Dalam perkara mengenai keputusan

“Jawatankuasa Pemilihan Sebut Harga
Kantin Sekolah” SMK St. John yang
disampaikan melalui surat bertarikh 23-
11-2010 daripada Pengetua SMK St.
John Kuala Lumpur kepada Foo Ah
Chin.

Dan

Dalam Perkara Tawaran Sebut Harga

Untuk Kantin Sekolah SMK St. John
Kuala Lumpur (Bil. 001/2010) bertarikh
1-7-2010.

1
 Dan

Dalam Perkara Permohonan Menyertai

Sebut Harga Kantin Sekolah SMK St.
Johd Kuala Lumpur bertarikh 7-8-2010
daripada Foo An Chin yang dialamatkan
kepada Pengetua SMK St. John Kuala
Lumpur.

Dan

Dalam perkara S.41 & 44 Akta Relief

Spesifik.

Dan

Dalam Perkara Aturan 53 Kaedah-

Kaedah Mahkamah Tinggi 1980 dan
permohonan perintah “certiorari”.

ANTARA

FOO AH CHIN (No. K/P : 410704-05-5002) …… PERAYU

DAN

1. PENGETUA SEKOLAH MENENGAH KEBANGSAAN

ST. JOHN KUALA LUMPUR

2. PENGARAH JABATAN PELAJARAN WILAYAH

PERSEKUTUAN KUALA LUMPUR

3. NAJIBAH BINTI MOHAMMAD (NO. K/P : 570905-02-2580)

4. KERAJAAN MALAYSIA ... RESPONDEN-RESPONDEN

2
CORAM

Ramly bin Haji Ali, JCA

Linton Albert, JCA

Balia Yusof Haji Wahi, JCA

JUDGMENT OF THE COURT

The Appellant was an unsuccessful tenderer. She had

submitted her tender for the rental and operation of the canteen for
the school of which the 1st Respondent was the Principal. The 1st
Respondent had called for tenders for the operation of the school
canteen for the period 1-12-2010 to 30-11-2012 by way of a notice
placed at the notice board at the school.

The notice stipulated that tenders were to be submitted to the

School Canteen Tender Committee whose decision was final and
could not be questioned.

By a letter from the 1st Respondent dated 23-11-2010 the

Appellant was informed of the decision of the School Canteen Tender
Committee not to award the tender to her. Dissatisfied with the
decision, the Appellant sought to apply for judicial review but her

3
application for leave was refused by the learned high court Judge.
Hence this appeal.

The relief the Appellant intended to ask for relevant to this

appeal were these:

1. The order of certiorari to quash the decision of the School

Canteen Tender Committee not to award the tender to
her vide the 1st Respondent’s letter dated 23-11-2010;

2. A declaration that the Appellant was the successful

tenderer;

3. An order of mandamus directing the 1st and 2nd

Respondents to award the rental and operation of the
school canteen to the Appellant.

The learned Judge was correct in refusing leave to apply for an

order of certiorari on the basis that the impugned decision was in
relation to a tender exercise and not the performance of a public duty.
The situation in the instant appeal is analogous to that which was
determined in DR. AMIR HUSSEIN BIN BAHARUDDIN V.
UNIVERSITI SAINS MALAYSIA [1989] 3 MLJ 298 where leave to
apply for judicial review was refused. The applicant there had been
appointed dean of the School of Social Science for several

4
consecutive terms but was not re-appointed thereafter. His
application for leave to apply for an order of certiorari to quash that
decision not to reappoint him was refused. In refusing leave, Edgar
Joseph Jr. J (as he then was) said at p301:

“Thus, in the present case, the question whether the applicant

should have been reappointed dean following the expiry of his
term, by the vice-chancellor pursuant to the powers conferred
by s 18 of the Constitution was exclusively a domestic matter
involving academic judgment, to be resolved internally.”

The tender exercise was no less a domestic matter and leave

was correctly refused.

In relation to an application for an order of mandamus, the

relevant provision in section 44 of the SPECIFIC RELIEF ACT 1950
states:

“(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 ------

5
 (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.”

The learned Judge found that the Appellant had failed to satisfy
the requirements of sub-sections (a) and (b) of Section 44(1) of the
SPECIFIC RELIEF ACT 1950 because it was not shown how the
Appellant’s property, franchise or personal right could be injured if an
order of mandamus was not made nor could the School Canteen
Tender Committee be said to be subject to any law imposing on it a
duty to deal with the matter complained of by the Appellant.

6
 The court must be satisfied that all the conditions laid down in
the proviso to section 44(1) of the Act are complied with. (See NG
BEE v. CHAIRMAN, TOWN COUNCIL, KUALA PILAH [1975] 1
MLJ 273 at p 275). The Appellant’s application premised as it was,
solely on the expectation of being awarded the tenders albeit
embellished with allegations of unfairness and mala fide cannot
conceivably be said to fulfill the requirements of section 44(1) (a) and
(b) of the Act.

There was, therefore, no merit in the appeal and was

accordingly dismissed with costs.

Signed
LINTON ALBERT
Judge, Court of Appeal
Putrajaya

Dated : 3 January 2012

Counsel:

For the Appellant : G. Nanot Goban

Messrs Goban & Company

For the Respondents : Shamsul Bol Hassan,

Sohaila Harun with him)
Attorney General’s Chambers)
7