Lampiran
Lampiran - 1 ini adalah merupakan suatu penyalahgunaan proses Mahkamah. [16] Justeru itu, Mahkamah memutuskan untuk membenarkan Notis Permohonan Defendan di bawah Lampiran - 5 ini. Oleh itu, Saman Pemula Plaintif di bawah Lampiran - 1 dibatalkan dengan kos sebanyak RM3,000.00 dan jumlah kos ini mesti dibayar oleh Plaintif kepada Defendan tertakluk kepada bayaran fi alokatur.” [6] Being dissatisfied with the said decision, on 17/3/2025 the appellant filed a Notice of Appeal (Enclosure 1) to this Honourable Court. [7] On 30/5/2025, the appellant filed the Record of Appeal (Enclosure 4). [8] On 25/6/2025, respondent filed Notice of Motion in Enclosure 6 to strike out the appellant’s Notice of Appeal and Record of Appeal on the following grounds: (a) The appellant has omitted several cause papers relevant to this appeal in its Record of Appeal and therefore has failed to comply with the requirements of the Court of Appeal Practice Direction No.1 of 2017; (b) The appellant’s solicitors have totally ignored the respondent’s solicitors' comments on the omissions in the draft Index to the Record of Appeal via letter dated 27/5/2025 and at the e-Review session on 16/6/2025 before the learned Senior Assistant Registrar of the Court of Appeal until this day. This is prejudicial to the respondent in filing its submissions as this appeal is by way of a re-hearing; (c) Further, the Record of Appeal contains documents which were not referred to by the High Court at the hearing of the respondent’s striking out application on 5/2/2025, which is the subject matter of the present appeal. Despite the respondent’s solicitors' objections to the inclusion of these documents via its letter dated 27/5/2025 and at the e-Review on 16/6/2025, the appellant’s solicitors have ignored the same and have taken no steps to remove these documents from the Record of Appeal; (d) The sealed Order of Court dated 5/3/2025 (Enclosure 34 in the High Court), which is at pages 14 to 16 in the Record of Appeal contains a serious typographical error / omission which renders the Order invalid / unenforceable as it contradicts the draft High Court Order approved by both parties before the fair Order was filed by the Appellant, wherein the number "1" has again been omitted from appellant’s company number (the said error/contradiction); (e) Again, despite the respondent’s solicitors informing the appellant’s solicitors of this said error/contradiction via email dated 27/5/2025 and at the e-Review on 16/6/2025, the appellant’s solicitors have not taken any action to rectify the defective High Court Order to date; (f) The Record of Appeal and the Notice of Appeal have been assigned the incorrect code in this Honourable Court via the e-filing system (EFS). We were advised that code “O2C" is misleading as code "02C", as provided in the Court of Appeal Practice Direction No. 1 of 2017, is used for cases involving matters before the Construction Tribunal, whereas the present appeal involves a commercial Arbitration matter; (g) The High Court portion of the Intitulement in the Notice of Appeal and in the Record of Appeal does not follow the Intitulement of the appellant’s Originating Summons (Enclosure 1 in the High Court). This is most prejudicial and embarrassing to the respondent as this form one of the grounds in the respondent’s striking out application at the High Court; (h) The name of the Respondent as stated in the Notice of Appeal and in the Record of Appeal is wrongly spelt as the name of the respondent is “Raksam Ingredients Private Limited” and not "Raksam Ingridients Private Limited"; (i) The appellant’s company number as stated in the Notice of Appeal and in the Record of Appeal is also wrong. The appellant’s correct company number is 199301026249 (280987-H) and not "993...); and (j) As a consequence of the deliberate omission and action of the appellant, the Court's Electronic Filing System (EFS) displays the respondent’s company name incorrectly as "Raksam Ingridients Private Limited" and the appellant’s company number wrongly. Our Decision [9] The appeal hinges on one main issue for this court’s determination, which is whether such non-compliance has occasioned serious prejudice or substantial miscarriage of justice. [10] Having heard the submission and having read the cause paper, we are of the view that there was a serious breach of the Rule 18(4) (a) and (c) of Rules of the Court of Appeal 1994 and the Court of Appeal Practice Direction No.1 of 2017 (PD-1 / 2017) whereby the appellant has failed to include the material and mandatory cause papers that are crucial to this appeal from the Record of Appeal such as: (i) the appellant’s Originating Summons dated 8/11/2024 (the High Court-Enclosure 1); (ii) the appellant ‘s Affidavit in Support dated 8/11/2024 (the High Court-Enclosure 2); and (iii) the respondent’s Affidavit in Reply dated 3/12/2025 (the High Court-Enclosure 4). [11] For ease of reference, Rule 18(4) (a) and (c) of Rules of the Court of Appeal 1994 is reproduced below: “(4) The appellant shall attach to such memorandum copies of the proceedings in the High Court, including— (a) copies of the documents in the nature of pleadings, so far as is necessary for showing the matter decided and the nature of the appeal; … (c) copies of all affidavits read and of all documents put in evidence in the High Court so far as they are material for the purposes of the appeal, and..." (emphasis added) [12] This appeal was filed by the appellant who was dissatisfied with the decision of the High Court in striking out its Originating Summons dated 8/11/2024 (the High Court-Enclosure 1). This same Originating Summons has been wilfully omitted from the Record of Appeal by the appellant. [13] In general, the omission or inaccuracy in the Appeal Records does not automatically render an appeal incompetent unless the defect is so fundamental that it prejudices the respondent or impedes the Court’s ability to hear the appeal. Technical non-compliance with procedural rules should not defeat a substantive appeal unless it causes real prejudice or amount to an abuse of process. In such cases, the Court generally prefers to order rectification rather than to strike out. [14] However, in the present case, the omission of the said material papers has caused prejudice to the respondent as the respondent is unable to take further steps to respond to the Appeal including filing of written submissions for the appeal (which has been fixed for filing on 14/10/2025) whilst the hearing of the appeal is fixed on 11/11/2025. [15] Further, as a consequence of the appellant’s omission to include the said material cause papers in the Record of Appeal, this Court is prevented from being placed with a proper understanding of the Appeal and/ or to carry out its duty of doing justice to the Appeal as the Appeal cannot be heard by way of re-hearing, as provided in Rule 5 (1) Rules of the Court of Appeal 1994 which reads as follows: “Appeals to the Court shall be by way of re-hearing and shall be brought by giving notice of appeal.” [16] In short, the Record of Appeal is fundamentally defective. [17] We also find that the appellant’s failures amount to abuse or contumelious disregard of the rules. The appellant had failed to rectify the defects despite opportunities being given. [18] The Supplementary Record of Appeal which the appellant filed seeking to cure the defects was filed without any application to seek leave and was only filed three days before the hearing of this appeal as a last-minute attempt to comply with the rules. [19] In light of the above, the exemption in Rule 3A Rules of the Court of Appeal 1994 could not be used to save the appellant. The appellant should live with the consequences of its own fault. [20] For completeness, we reproduce Rule 3A Rules of the Court of Appeal 1994 which read as follows: 3A. Preliminary objection on the ground of non-compliance shall not be allowed A Court or Judge shall not allow any preliminary objection by any party only on the ground of noncompliance of any of these Rules unless the Court or Judge is of the opinion that such noncompliance has occasioned a substantial miscarriage of justice. [21] In addition, such serious non-compliance is not curable as it causes serious prejudice and substantial miscarriage of justice to the Respondent. [22] In the case of Mazni Ibrahim v. Rosaidy Effandy [2013] 4 CLJ 453, the Court of Appeal through Abdul Wahab Patail JCA (as he then was) delivering the judgment of the court held as follows: “(2) The failure to serve the draft record of appeal upon the respondent before it was filed was a fundamental threat to the reliability of the record of appeal before the appellate courts. Without a record of appeal filed, the appeal was fundamentally defective. In the present case, the record of appeal filed in the High Court was incomplete, while the record of appeal in the present appeal suffered from the fundamental defect of the draft not having been served upon the respondent and containing a submission which the latter denied making. Hence, it was not made possible to show where the merits and justice lay. (paras 19, 20 & 23) [22] In principle, r. 3A is similar to O. 1A of the Rules of the High Court 1980. If there is any misconception that O. 1A, and therefore r. 3A is panacea to non-compliance with the rules of court, it has been decisively dismissed in Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v. Datuk Captain Hamzah Mohd Noor & Another Appeal [2009] 4 CLJ 329 FC where the Federal Court held at para. 50 of the judgment that: As I had mentioned in court, if O. 1A is sought to be invoked whenever a party fails to comply with any provision of the rules, then the whole of the Rules of the High Court 1980 would be rendered useless.” (emphasis added) Conclusion [23] The respondent’s Notice of Motion in Enclosure 6 is allowed with costs of RM5,000.00 to be paid by appellant to the respondent subject to allocator. DATE: 4 NOV 2025 - SGD - AZMI BIN ARIFFIN JUDGE COURT OF APPEAL MALAYSIA Counsel For the Appellant : 1. Suresh Subramaniam 2. Azizul Hilmi Zulkifli [S. Suresh Law Chambers (Petaling Jaya)] For the Respondent : 1. Jeyashankar a/l Sivalingam 2. Rajeswary a/p Girupai [Rajeswary Girupai & Associates (Seremban)]