1 ML. the respondents had not_di the burden even a. ‘on a balance of probabilities and there should have been judgment for the appellant. ‘The appeal is, therefore, allowed with costs here and in the court below. Judgment will be entered for the appellant in the sum of $135,000 against both parties with interest thereon at 6% from April 7, 1971 to date of payment. Appeal aliowed. Solicitors: Battenberg & Talma: Yong & Co. HOCK HUA BANK BHD. v. SAHARI BIN MURID 2G (en Him Hoe, C3. Gorn), Chang Min Te GS Sais BES sepicaber 10 & Oecier 1, 1900) eng Fear) Coan Gri pe Nerd 0 ae ge ets = Ir tis Se ly gg Ro glad pt gr ge Fresh action ee to set aside judgment — RSC., 1957, U1 (REC. 0. 20 r. 11h D "a it cone the here oy ad. made an oxi for sates ieee are et he ade et et ee ices pometie tacriete ma Nene le Pa eal Tad ee acid eee tac pel dae Ftp ee tne we ic ref Subsequently he Teamedpadgethretpon staid Bis Mader The apect. E i ee Wier (1) te faaed fae ws fame oft: ea es pects ec oe sees aint, Pee spline Smart OR Eee a eer Se ay ee eer Se ‘unless it is a judgment by default or made in the absence F aioe Hs ioleeet 2 oe sss adenns ot ove bas bog shad by xed edna a Geicega benle's tase ina Sonia 1s Os engin nave oes Gs cam, aca! fnd po ition 12 on UE SE ce lore bie bal on Sabie restored, leaving it to the respondent to take out a fresh G Sere res Serie cu, Crs refered to ine ee eon ete Q) Re St. Nazaire Co. 12 Ch. D. 88. fence eae ea aicag ee aod Era ine Foe tog ena caine acon Ott eet ped pemninctan! Oh cent eae aaa FEDERAL COURT. Peter Chin for the appellant. Raymond Szetu for the respondent. Cur. Adv. Vult. ‘Chang Min Tat FJ. (delivering the judgment of the our): This appeal is concemed with the jurisdiction of a judge to alter, vary or set aside a judgment regu- larly obtained, drawn up and perfected. The order in question was an order for sale made in a foreclosure proceeding. The originating summons i i fi ' #8 ._ It was not appealed against but shortly fore the expiry of a month from the date of the which was the period for lodging an appeal, pondent made an application to set it also asked for leave to file an affidavit in ‘The purpose of the last prayer is not stood. He had filed an earlier affidavit i a i L i i Tt was as full as could be desired, except he did not exhibit copies of the various ship's documents which would establish that he was not in Miri at the time when he was said to have executed the charge in Miri, However he did additionally allege a meetis with the attesting solicitor who 80 it was alleged, that the respondent was not the person who executed the charge. ‘The summons to set aside the first order was set before the leamed judge on September 26, 1978. Counsel ies. The vari I where. But. the opposition to the second summons ‘was not on the question of the judge’s jurisdiction but flnncs presumably, vit e's ‘Whetber ee presumably, with the rules. re fusal of the judge to set aside this order was om this procedural ground, it is not possible to say. Then on December 18, 1979, this time by notice ‘of motion, the respondent’ made’ another application to set aside the two previous orders on precisely the same grounds, “Again affdavis and counter afidavits were filed. On this occasion, however, the argument ‘of counsel for the respondent succeeded and the learned judge set aside his own order. ‘Nor that the application made in the same144 ejected the contention of counsel for the the only way to set aside such an order was by action if, inter alia, grounded on fraud. He fhat snc the man bad not ben adjudicated and th hot pronounced a j t upon the merits nt, be had the power to do what he did, is authority the case of Evans v. Bartlam the oft-quoted dictum of Lord Atkin i i t obtained by a failure to follow B rules of procedure. he himself observed that in this dictum discussing the jurisdiction ofthe judge set aside a judgment obtained by default, be failed see that case the order was not obtained default of the other party. He had before him at the first foreclosure ‘and quite clearly he should have considered Hf functus officio after having considered the contentions raised at this proceeding and refused to do anything about it on the ground of lack of juris- diction and he should have left it to the respondent to commence a fresh action to set aside the fore- closure order on the ground of fraud. The right D practice was pointed out to him and his attention was drawn to the cases directly in point. Unless he could distinguish them, he was bound by them. Cleary the court has no power under any appli cation in the same action to alter vary or set aside a judgment regularly obtained after it has been entered or an order after it is drawn up, except under the slip E rule in Order 28 rule 11 Rules of the Supreme Court 1957 (Order 20 rule 11 Rules of the High Court 1980) 30 far as is necessary to correct errors in expressing the intention of the court: Re St. Nazaire Co.,® Kelsey v. Doune:'® Hession v. Jones, unless it is a judgment by default or made in the absence of a party at the trial or hearing. But if a judgment or F order has been obtained by fraud or where further evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh action will lie to impeach the original judgment: Hip Fong Hong v. Neotia & Co. and Jonesco v. Beard.® The hearing of the action will in a proper case be expedited: “Smith v. Peizer.? G For these reasons, we allowed the appeal with costs and restored the original order made in the fore- closure proceeding. We have observed that the fresh action necessary to set aside the order on the ground of fraud has been ommences. All that the respondent, requires sre 8 stay foreclosure proceeding and an expedition Of the hearing of the fresh action. Fortunately for the respondent, we have been able to overcome the reluctance of counsel for the chargee and to prevail on him to agree to a stay. This would save the solicitors for the chargor having to make the application to the court. The Chief Justice, Borneo assures the parties that be will entertain an application for an eatly date of hearing when the pleadings close and all the pre-trial procedures have been taken, ze ape cul y i & Appeal allowed. Solicitors: Wan Ullok, Jugak, Chin & Co.; Szetu & Co. {1981} YAP EE KONG & ANOR. v. PUBLIC PROSECUTOR ‘Aztan Shah C3. (Malays) ‘Wan Suleiman FJ, Abdul Hamid FJ. & Hashim Yeop A. Sani J.) November 17, 1980] Kuala Lumpur — Federal Court Criminal Reference No. 2 of 1980} Criminal Law and Procedure — Conviction on evidence of agcomplce — Caroboyaton — Kelerene to Federal Cott “Hearing as on appeal — Pen 51958 — Courts of Judicature Aer, 1964, «. 65(1). In this case the appellants were charged in the Sesions ‘Court with sbeing the offence of ‘der section 193, Of the Penal Code allegedly commited by one Guamen bin ‘bmg. At the thai Othman bin Abmad gave evidence on the ‘lege influence of the appalants to vtell Hes in court” In Support of bis evidence the. prosecition called the ‘ile Of Giianan Bin Ahmad and the superior otficer-of Othman, who both gave evidence of statements aade by Cthman to. them. “he famed President of the Sessions Court held that the de {ence had cast reasonsble doubt on the prosecution cae and Se Sole te appaiant but on ap abpal by ‘te ble FFoveror the lated jude of the High Court Zonviced the 2ppeliants ag he found dbat the supesi officer of Othman was anvindependent wines and his evidence corroborated tha of ‘Gunman “Aprlicauon was made to the learned. judge to 10- serve for ibe decision of the Federal Court questions of law of poblie iterem which bad aclen ia Uh coulte of tbe appeal Sc ais wa. refused tion "was then made by way of Cripioal rterence to te Pederal Court, which beard the appl ‘ton sod dealt with the matter as on appeal. ‘The quesion famed the Feder Court rag the fi pel it was “whether corroboration is provided by proof of Con- Sistegt statements made out of court before trial” relation {o the second appellan the question was “Where a person is Sharged with abeting an ‘der section. 195-of the Penal Code can the eideace of an accomplice be corroborated by what the accomplice fs alleged to have wld Bis wile ot 1 Superior oftcer after the offence bad been commited?” Hela: (1) the evidence against the second appellant was asadon ep ba arent of an ecomplc a wat ‘rion jon onthe part of the appellate. judge to Eonsiger the previous statement of an accomplice as for. Soration; 2) a5 regards the fist a there was hardly an evidigte agai iat in te 428 pace ted the! quston ot ‘somoboraion did’ not azise; G) on the facts of the case the answers to both the ques- iow feed us be le Romtre flowed al he Sppeliana shouldbe quashed? SSE" #58 Cases referred 10:- ) Sin Tiew Bee . Public Prosecutor (1973) 2 MALI. @ ° ® © Yue Sang Cheong Sdn. Bhd, v. Public Prosecutor 1593) TMI ‘Auomey-General for Northern Ireland v. Gallaghsr ATA SS. R. v, Baskerville {1916) 2 KB. 658 Reg. v. Melopa Bin Keponu & Ors. LLR. (1894) 8. 198, isi. Director of Public Proseeutions v. Hester (1973) AC. Beats. FEDERAL COURT. E. Joseph Jr. (GS. Nijhar with him) for the Ist appellant, RR. Chelliah (G. Sri Ram and P. Vijendran with him) for the 2nd appellant, Shaik Daud bin Haji Mohamad Ismail (Senior Federal Counsel) for the respondent. Cur, Adv. Vids ©