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Acting without fear or favour is a calling that all advocates and solicitors ascribe to. To be brazen in the face of one’s own overwhelming iniquity is, rather unfortunately, a call that some take-up too.
A case in point would be that of Abdul Samad bin Mohd Embong & ors v Pantai Bayu Indah & ors [2019] MLJU 1521 (COA); [2017] MLJU 2344. This case underscores how a sideshow is able to detract from genuine claims seeking redress.
Factual narrative
The claim involved Native Customary Rights (NCR). However, midway through the proceedings, an application to commit was filed by the Defendants as against the solicitors for the Plaintiffs.
The committal application in the High Court
The committal application was premised upon 2 broad grounds. Firstly, the solicitor for the Plaintiffs had filed an application to recuse the trial Judge. In the supporting affidavit, the solicitor had made numerous averments alleging that the Judge “…failed to preside over the case without prejudice and with impartiality! He has allowed his personal biasness and/or prejudice to get in the way of what is supposed to be a course of justice!” (sic)
There were 19 exclamation marks in the supporting affidavit. The solicitor also made reference to several other cases, completely unconnected to the dispute at-hand.
To add a healthy dose of paraffin to the flames, the solicitor then held a press conference. He issued further disparaging remarks as against the Judge. Amongst others, video clips were circulated on Facebook, where the solicitor stated:
Okay? I must bring forward the two cases from the past that was faced before him. Okay? They said it was not related, I said it is related. To prove the judge’s demeanour and his attitude.
Okay? Of course I felt I’ve been hit like...I don’t know how to say...as though I’ve been fooled by him. Played by. For us as a lawyer, okay - the things said must be able to be used, not simply to be said as you like. That’s why I was very angry at him. Inside, when I was still speaking, the things he said and the meaning is different from past days. I simply cannot believe it anymore. I can’t! What can I believe? Is this the action of a Government lawyer? This mustn’t be. Thus mustn’t be. Okay? (sic)
‘Oh my’ would be an understatement.
The High Court’s findings
The High Court held that the same would amount to contempt. Dean Wayne Daly JC (as His Lordship then was) stated as follows:
[37] This court was of the opinion that offending statement made by the Respondent in his Affidavit in Support and to his clients in public and which briefing was video recorded and circulated in the social media (See the transcript and translation in exhibit marked “M3” in Enclosure 232), are very serious and deliberate attack on the course of justice as administered by the courts in this country.
[38] Such unfounded or unjustified attacks upon the Judge discharging his judicial duties constitutes contempt of court. The Respondent being an advocate and an officer of the court, by using the said offending words or statements at the recusal hearing and after the hearing, they have the effect of interfering, impeding or prejudicing the due administration of justice and is likely to undermine or erode public confidence and respect in the administration of justice and the dignity of the judiciary in our country.
The judicious language used by the learned JC (in the face of what was certainly unbecoming conduct) ought to be commended.
The learned JC then made a finding of contempt and caused the solicitor to be committed.
The Court of Appeal
At this juncture, it must be noted that the committal order was entered as-against the solicitor (not his clients). The solicitor, being dissatisfied, caused his clients to lodge a notice of appeal.
The Court of Appeal struck-out the appeal. The COA noted as follows:
[24] As for enclosure 65, we must say at the outset that there is no merit in the appellants’ contention that the committal applications were wrongly brought against the contemnor, thus rendering the applications incompetent or null and void. First of all, it is incorrect for the appellants to say that the contempt applications were made against them and not against the contemnor personally. The person cited for contempt was the contemnor and not the appellants.
[36] We accept the respondents’ argument that the defect in the Notice of Appeal is incurable. It is fundamental in nature and goes to the root of the matter as the persons who lodged the appeal have no right of appeal. This court has no jurisdiction to entertain an appeal brought by strangers who are unaffected by the decision or order of the High Court. That takes this appeal outside the purview of section 67 of the CJA.
[43] For all the reasons aforesaid, we are constrained to strike out the appellants’ appeal for being incompetent. Accordingly, we make an order in terms of prayers 1 and 2 of Enclosure 50. In view of our decision on Enclosures 50, 63 and 65, we do not find it necessary to deal with the merits of the appeal.
[44] Even if we were to deal with the merits of the appeal, we would still be inclined to dismiss the appeal and affirm the learned JC’s decision. On the evidence before him and for the reasons he had given, we are of the view that the learned JC was right in finding the contemnor guilty of contempt of court. We find no compelling reason to disagree with him.
Conclusion
These two decisions go quite a ways towards outlining the fact that Advocates and Solicitors must be circumspect in their conduct towards the Court. Scurrilous averments made in affidavits and out-of-Court could (and certainly should) attract penal sanction.
The same, if left unchecked, would lead to contempt for the processes of the Judiciary.
All the solicitor had to do would have been to lodge an appeal against the decision of the High Court Judge, should his clients have been dissatisfied with the same.
Instead, he took a route that was far more circuitous and tortuous; a route which was certainly unbecoming of a practitioner.
GAVIN JAYAPAL
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