MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO. W-01(IM)-88-2011
FOO AH CHIN (No. K/P : 410704-05-5002)
vs
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
CORAM
Ramly bin Haji Ali, JCA Linton Albert, JCA Balia Yusof Haji Wahi, JCA
JUDGMENT
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 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 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
(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.
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.
