1. ) Siti Nurshafikah Binti Zulkifli v 1. ) Mohamad Azrul Bin Mohd Lokman (JA-12A-1-01/2025)

1.

…APPELLANTS

MOHAMAD AZRUL BIN MOHD LOKMAN [NRIC No. : 961109-29-5109]

HERN YI ANG ENTERPRISE [Company No. : JM0815493-P] …RESPONDENTS IN THE MAGISTRATE COURT IN JOHOR BAHRU IN THE STATE OF JOHOR DARUL TA’ZIM, MALAYSIA CIVIL SUIT NO. : JA-A72NCVC-404-03/2018

ROSLAN BIN SIDEK [NRIC No. : 690509-01-6429]

TRANSNASIONAL EXPRESS SDN BHD [Company No. : 327442-K] …PLAINTIFF

1.

2.

MOHAMAD AZRUL BIN MOHD LOKMAN [NRIC No. : 961109-29-5109]

HERN YI ANG ENTERPRISE [Company No. : JM0815493-P] …DEFENDANTS

1.

…THIRD PARTIES

This Court hears an appeal in Enclosure 1 filed by Siti Nurshafikah binti Zulkifli and Muhammad Al-Rasyidin bin Mat Anafi against the Sessions Court Decision dated 17 December 2024. In the Sessions Court, they were the second and third Defendants, respectively.

Following that, they filed an application under Order 18 Rule 19 Rules of Court 2012 to strike out the two Third Party Notices served on them. On 17 December 2024, the Sessions Court dismissed the said application. Dissatisfied with the decision, they filed the present appeal.

For ease of reference in this judgment, they will be referred to as the First Defendant and the Second Defendant, similar to the description used in the original proceeding before the trial Court.

Parties filed in written submissions together with the supporting authorities in Enclosure 5 (First and Second Defendants’ submission), Enclosure 6 (First and Second Defendants’ bundle of authorities) and Enclosure 7 (Third and Fourth Defendants’ written Submission) and Enclosure 8 (Third and Fourth Defendants’ bundle of authorities). Counsel for both parties also orally submitted before this Court on 19 August 2025. Today is the day for the decision. I now deliver my decision and reasoning.

On 17 March 2020, the second Plaintiff’s bus, driven by the First Plaintiff, was involved in a motor accident with vehicles driven by the First, Second and Third Defendants. The Fourth Defendant was the registered owner of the car driven by the Third Defendant. The Plaintiff’s claim against all four Defendants was for specific damages, including costs and losses suffered by the Second Plaintiff as the registered owner of the said bus arising from the alleged contributory negligence of the First, Second and Third Defendants.

On 9 March 2023, the Court allowed the Third and Fourth Defendants’ application for leave to issue the Third party’s claim against the First and Second Defendant. Pursuant to that order, the Third and Fourth Defendants filed two Third Party Notices against the First and Second Defendants. The first sought relief and remedy, while the second notice required the First and Second Defendants to address the issues and questions that would be determined.

The First and Second Defendants' application for striking out the two notices under Order 18 Rule 19 ROC 2012 was dismissed on 17 December 2024. At the outset of his judgment, the Sessions Court Judge observed that the Third Party Notices referred to as having been filed on 9 March 2023 did not exist. He clarified that, based on the Affidavit, there were in fact only two Third-Party Notices filed in the Suit before the Sessions Court, which are Enclosures 57 and 58, both filed on 20 March 2023. Hence, he concluded that the third-party notices dated 9 March 2023 in the application must have been a reference to the third-party notices in Enclosures 57 and 58.

The Sessions Court judge dismissed the First and Second Defendants' application on the ground that both Third Party Notices were a consequential action taken pursuant to the Court order dated 9 March 2023, granting leave to the Third and Fourth Defendants to commence the third party proceeding. In addition, the Court on 4 April 2023 also allowed the Third and Fourth Defendants’ application to serve the notices to the First and Second Defendants. None of these orders were set aside. Accordingly, he held that the First and Second Defendants' application under Order 18, Rule 19, ROC, was without merit. Hence, the appeal before this Court.

This Court is mindful that, in exercising its appellate jurisdiction, it would be slow to interfere with the decision of the trial court unless it is shown that the trial court is plainly wrong when arriving at the decision under appeal [see: UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785; Azman Mahmood & Anor v. SJ Securities Sdn Bhd [2012] 6 CLJ 573; MMC Oil & Gas Engineering Sdn Bhd v. Tan Bock Kwee & Sons Sdn Bhd [2016] 4 CLJ 665]

In explaining the duty of the appellate court, aside from the settled law decided in various cases mentioned above, the Court of Appeal in the most recent case of Ahmad Rubil Ahmad & Ors v. Minda Muhibah Sdn Bhd & Anor [2025] CLJU 1798, also referred to Civil and Criminal Appeals in Malaysia, 4th Edition, as follows— [24] In his book, Civil and Criminal Appeals in Malaysia,4th Edition, learned author Tan Kay Heng has summarised the duty of the appellate court as follows— [6.013] However, the appellate court is under a duty to intervene on the finding of fact of the trial court where the trial court has so fundamentally misdirected itself that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion, which means an appellate court would carry out an examination of the reasoning in respect of the finding of fact in the light of all the evidence adduced before the trial court. An appellate court should not hesitate to disturb the findings of the trial court if there were failure on the part of the trial court to appreciate the issues and/or evidence, to properly and adequately evaluate the evidence, to make the proper findings and inferences or deductions, to give reasons, and or to apply the correct law to the facts.

The First and Second Defendants’ appeal was premised on the following grounds:

this Court has jurisdiction to set aside the Order dated 9 March 2023;

the parties in the Third Party Proceeding are also the same in the main suit;

the Third Party Notice is an indemnity notice under Order 16

the third party’s claim could be distinct from the Plaintiff’s claim and

the Third and Fourth Defendants are at liberty to commence an independent suit against the first and second Defendants.

This Court observed that the above grounds mirrored the grounds ventilated before the Sessions Court. The submission filed on pages 88 to 100 of Rekod Rayuan in Enclosure 3 is reproduced with expansion in the submissions before this Court filed in Enclosure 5.

Having set the parameter above, this Court starts the analysis by considering the preliminary objection raised by the third and fourth defendants: that the appeal before this court is on the Sessions Court decision in dismissing the striking out of Third Party Notice pursuant to Order 18 Rule 19 ROC 2012. Thus, the counsel for the third and fourth defendants submitted that the first and second Defendants have no right to pursue this appeal, as is prohibited under subparagraph 28(1)(c) of the Court of Judicature Act 1964 [Act 91].

Hence, the foremost issue for consideration is whether the appeals by the first and second defendants are appealable.

The provision of Section 28 of the Act 91 reads as follows— “(1) No appeal shall lie to the High Court in any of the following cases—

subject to any other written law, from a decision of a subordinate court in any civil cause or matter where the amount in dispute or the value of the subject matter is ten thousand ringgit or less except on a question of law;

where a subordinate court dismissed any application for a summary judgment;

where a subordinate court dismissed any application to strike out any writ or pleading; and

where a subordinate court allowed any application to set aside a judgment in default.

An appeal shall lie from any decision of a subordinate court in any proceedings relating to maintenance of wives or children, irrespective of the amount involved”.

Subparagraph 28(1)(c) Act 91 was amended via Courts of Judicature (Amendment) Act 2022 [Act A1661] and came into force starting from 5 September 2022. This Court is guided by the principle illuminated in the Court of Appeal in the case Azinal Sdn Bhd v. Jannath Gani & Ors And Other Appeals [2024] 4 CLJ 335, that the amendments to expand the list of non-appealable matters in Act 91 are to have a retrospective effect. Thus, even though Plaintiff’s claim against all defendants was filed on 21 March 2022, which is before the enforcement date of subparagraph 28(1)(c) Act 91, there is no issue on its applicability.

Based on the speech of the then Deputy Minister at the Prime Minister’s Office when the bill was tabled for second and third reading on 25 July 2022 in Parliament, it is clear that the Parliament intends to limit the appeal from the subordinate Court. He explained as follows— “Cadangan pindaan kepada Akta Mahkamah Kehakiman 1964 [Akta 91] … melibatkan dua perkara utama iaitu mengehadkan ravuan untuk kes-kes interlokutori sivil dan penyediaan dokumen dan rekod rayuan bebas kertas dalam prosiding perbicaraan rayuan jenayah … … Kaedah perubahan substantif yang dicadangkan ialah dengan mengehadkan ravuan dan Mahkamah Rendah ke Mahkamah Tinggi dan dari Mahkamah Tinggi ke Mahkamah Rayuan dengan mengehadkan rayuan dalam kes-kes permohonan interlokutori yang tidak memprejudiskan hak pihak-pihak … … Keduanya, berkenaan pindaan seksyen 28. Fasal 2 rang undang-undang bertujuan untuk meminda seksyen 28. Akta 91 untuk menghadkan hak untuk merayu dari mahkamah rendah ke Mahkamah Tinggi dalam kes sivil, dalam hal keadaan jika mahkamah rendah itu menolak mana-mana permohonan untuk penghakiman terus atau mana-mana permohonan untuk membatalkan mana-mana writ ataupun pliding atau membenarkan mana-mana permohonan peruntukan mengetepikan penghakiman ingkar …”

This is consonant with the Explanatory Statements in the Bill of Act A1661, which mentioned the following— “Clause 2 seeks to amend section 28 of Act 91 to limit the right to appeal from a subordinate court to the High Court in civil cases in the case where the subordinate court dismissed any application for a summary judgment or any application to strike out any writ or pleading, or allowed any application to set aside a judgment in default”.

The limitation set under subparagraph 28(1)(c) of Act 91, in respect of an appeal for a striking out order, is consistent with the legal principle that the right to appeal is not substantive if it is not provided for in any written law [see Wan Sagar Wan Embong v. Harun Taib [2008] 5 CLJ 14; [2008] 4 MLJ 473; Azinal Sdn Bhd v. Jannath

Based on the foregoing analysis and reasons, this Court is satisfied that the appeal is incompetent in limine. Accordingly, the question of whether the appeals by the first and second defendants are appealable is answered in the negative. Therefore, this appeal is dismissed with costs of RM7,000, subject to allocator. Dated : 22 September 2025 Dr Noradura binti Hamzah