Functus Officio: When Does A Court Lose Its Powers?

A) What is Functus Officio?

The phrase “having discharged his duty” resonates with the term Functus Officio as it refers to an officer or agency whose mandate has expired, due to either the arrival of an expiry date or an agency having accomplished the purpose for which it was created. In the context of Malaysian law, the doctrine of Functus Officio reflects upon judges, whose duty or authority has come to an end in regards to a particular case.

In Chin Wai Leong & Ors v. PP & Other Applications [2020] 7 CLJ 322, the Court of Appeal quoted the definition of “functus officio” as found in Words and Phrases Judicially Defined (1990 Edition) as follows:

It is not clear how the words functus officio crept into the order appealed from. Functus officio means a person who has discharged his duty, or whose office of authority is at an end (see Bedwell v. Wood (1877) 2 QBD 626). Thus, once a president has convicted a person charged with an offence before him, he is functus officio, and cannot rescind the sentence and retry the case. Similarly, once he has tried a civil action and made an order on the final determination of the dispute between the parties, he is functus officio and cannot rescind his final order and retry the case, or try a subsequent action between the same parties on the same subject matter.

B) When is a court Functus Officio?

It is trite principle of law that a court is functus officio once it has delivered its judgment/order. The court is not empowered to vary or change its regularly obtained judgment or order. The exceptions where courts may issue consequential orders is only limited to “working out” the orders so as to give effect to the initial orders. (Stone World Sdn Bhd v. Engareh (M) Sdn Bhd [2020] 4 CLJ 354 [COA])

In the case of In Re Yamamoto Ryoji [2020] 10 CLJ 75, where the parties have drawn a consent order, the court held that:

Once the consent judgment (order) had been perfected, the Court cannot vary any of the agreed terms unless with the mutual consent of the parties. Hence, one can say that the Court is Functus Officio or in other words, the Court is bereft of jurisdiction to entertain any request to set aside such judgment.

In Uba Urus Bina Asia Sdn Bhd V. Quirk & Associates Sdn Bhd [2016] 4 CLJ 468 (HC), on an issue of whether a Court is functus officio after an order for stay is granted, Mary Lim J held:

Once that order of stay under sub-s. 10(1) had been made, and the order had been sealed or perfected, there was nothing left before the court. The court was functus officio and did not concern itself nor does it need to concern itself with the mechanism or details of the procedure behind that reference to arbitration

In a criminal proceeding, in PP v. Jamalul Khair [1986] 2 MLJ 371, held:

If a court upon all the facts before it thinks it is proper to accept a plea of guilty then the court may permit that plea to be withdrawn and a plea of not guilty accepted at a later stage up to sentence, that is, until final adjudication. The learned President was not functus officio in this case until she had passed a sentence or had otherwise finally adjudicated the matter.

C) Exceptions to the doctrine of Functus Officio

It should be relevant to note that courts possess an inherent jurisdiction to clarify the terms of an order and to make ancillary orders primarily to give effect to the decision or judgment handed down. This is necessary to enable a court to ensure that substantive justice between the parties is served, so as to give effect to its primary decision, through the dispensing of procedural justice.

In light of this, the case of Tenaga Nasional Bhd v. Prorak Sdn Bhd & Anor [2000] 1 CLJ 553, after affirming the position in law that the rule of functus officio is a part of the broader doctrine of res judicata, continued to recognize exceptions to the functus officio doctrine.

Here, it was held that the learned judge was quite wrong in assuming that the court was functus officio merely because judgment had been entered against the appellant. The default judgment entered by the judge was irregular because it had been entered in breach of the express understanding reached between counsel and sanctioned by the court that only the issue of liability was to be tried.

Next, the Federal Court in the case of Hock Hua Bank Berhad v. Sahari bin Murid [1981] 1 MLJ 143 held that the court may make a further order subsequent to its previous sealed order under the slip rule as set out in O. 20 r. 11 of the Rules of the High Court 1980 (the RHC). The court agreed that,

“This was needed is intended to supplement the main orders in form so that the main orders may be carried out. To this end, errors and omissions that do not affect the substance of the main orders may be corrected or augmented but this should not vary or change the nature or substance of the main orders.”