Metroport Air Services Sdn. Bhd. v Cargostreetz Sdn. Bhd. (BA-12BNCVC-42-05/2018)

The Appellant has file an appeal against the decision of the Sessions Court Judge. After trial, the Honourable Judge has 2 dismissed the Appellant’s claim (Plaintiff at the Sessions Court) against the Respondent’s/Defendant’s with cost of RM15,000-00. The Session Judge has also allowed the Respondent’s/ Defendant’s counter claim of RM44,690-34 with costs of

There are two (2) Applications before this Honourable Court, namely:

Application by the Appellant/Plaintiff for extension of time to file the Memorandum of Appeal and the

Application by the Respondents/ Defendants to strike out the Appellant/Plaintiff’s Appeal (Enclosure 11); and CHRONOLOGY OF EVENTS

Based on the Affidavit filed by both parties, I will conclude the case as below:

On 22 May 2018, the Sessions Court had after the trial of the suit dismissed the Appellant’s/ Plaintiffs claim with costs of RM15,000.00 and allowed the Defendant’s counter claim of RM44,690.34 with costs of RM10,000.00;

On 25 May 2018, the Appellant’s/ Plaintiff had filed the Notice of Appeal to the High Court to appeal against the said decision; 3

Thereafter, the Record of Appeal was filed on 22 June 2018 but it did not contain the Memorandum of Appeal as required by Order 55 Rule 4 Rules of Court 2012 (“ROC”);

The Appellant’s/ Plaintiff therefore requires an extension of time from 22 June 2018 until a date as prayed for in prayer (1) in the Plaintiffs application, to file the Memorandum of Appeal;

The Appellant’s/ Plaintiff’s has filed this application on 17 July 2018;

In paragraph 9 of the Affidavit in support/ reply, the Appellant’s/Plaintiff’s Finance and Administrative Manager stated that she was advised by the Appellant’s/Plaintiff’s solicitors that the reason for the omission of the Memorandum of Appeal was that it was caused by an oversight;

The Appellant’s/Plaintiff’s did not state whose oversight it was;

The Plaintiff stated that the failure was an inadvertence (“tidak sengaja”) due to the fact that they had yet to receive the grounds of judgment from the Sessions Court; 4

Further, the Plaintiff also requires another extension of time which they have failed to apply for, in the circumstances. It is in respect of their failure to serve the Record of Appeal on the Defendant’s solicitors within one month of the filing of the Notice of Appeal in compliance with 0rder 55 Rule 4(8) ROC; and

The Plaintiff then went on to state that the delay in filing the Memorandum of Appeal will not prejudice the Defendant which can be compensated by costs and the Defendant had knowledge of the Plaintiff’s appeal as the Notice of Appeal had been served on the Defendant.

The Cause papers, Affidavits and documents relating to both applications are as follows:

Appellant’s Notice of Application dated 17 July 2018 (Enclosure 9);

Appellant’s Affidavit in Support affirmed by Kalaiyarasi a/p Vijayan dated 17 July 2018;

The Respondent’s/Defendant’s Affidavit in Reply affirmed by Abdul Aziz bin Syaifuddin dated 7 May 2018;

Respondent’s Notice of Application dated 17 July 2018 (Enclosure 11);

Respondent’s Affidavit in Support affirmed by Abdul Aziz bin Syaifuddin dated 17 July 2018; and

The Appellant’s/Plaintiff’s Affidavit in Reply affirmed by Kalaiyarasi a/p Vijayan dated 7 May 2018; 5 THE LAW ON FILING AN APPEAL

Order 55 Rule 4 of the Rules of Courts 2012. Record of appeal (0.55 r. 4)

In the case of an appeal from a decision after trial, the appellant shall within one month from the date of filing of the notice of appeal prepare and file the requisite number of copies of the record of appeal and the record shall contain copies of—

The relevant pleadings;

The notes of evidence;

The grounds of judgement, if available;

The memorandum of appeal; Provided that the record of appeal shall be filed notwithstanding that the notes of evidence and/or grounds of judgement are not ready;

The appellant shall within the time limited for the filing of a record of appeal serve each respondent with a copy of such record of appeal.

It is to be noted that Order 55 Rule 4 is a mandatory provision in the ROC. In the case of: Gan Hay Chong v Siow Kian Yuh & Anor (1975) 2 MLJ 129 (FC) it was held that the mistake of the appellant’s solicitors in the circumstances of that case, did not constitute a sufficient ground for granting extension of time. The appellant’s solicitor in this case had misinterpreted the provision in relation to the filing of the memorandum of appeal and as a result, filed the said memorandum out of time. The Federal Court held 6 that the Court will examine whether the facts merit the exercise of judicial discretion in favour of the appellant. Similarly in the case of: The Court of Appeal in Pentadbir Tanah Kuala Selangor v Maybank Islamic Bhd; Menteri Besar Selangor Diperbadankan (Pencelah Dicadangkan) & Rayuan-rayuan lain (2015) 9 CLJ 197 (CA) it was held that the Court had the discretion to grant permission towards certain application to extend time of filing records of appeal if there was reasonable and acceptable explanation. The reasons put forward by the appellant were not sufficient to enable the Court to exercise its discretion judicially to allow a request for an extension of time to file the records of appeal. If this reason was accepted, it would open paths for parties who do not vigorously and diligently prepare records of appeal within the prescribed time, submit frivolous reasons in the future. The reason given by the appellant for failing to file the records of appeal within time was that there were too many documents involved in compiling the records.

More so in the case of: Chieng Chuang Construction Sdn Bhd v Howdah Enterprise Sdn Bhd (2018) 1 LNS 26 the High Court had to deal with an application for extension of time to file the Record of Appeal on the ground that the counsel in charge was completely overwhelmed with the preparation and trials to comply with the directive issued by the Court and there was oversight of the prescribed time on the part of the solicitors. The Court held that the appellant/defendant was represented by an advocate who ought to be aware of non-compliance of the mandatory provisions in the Rules of Court 2012 and the time limit prescribed therein. The Court held that there being no facts and grounds to show the 7 merits of the appeal dismissed the application. In Malaysian Court Practice Rules of Court 2012, the Notes under “Failure to comply with the rules”, it is stated in Cangkat Jering Sdn Bhd v Normayati bte Alias (2003) 2 MLJ 545, that the memorandum of appeal was filed but not served within the prescribed period as required by Order 55 Rule4(3). The court emphasized that the appellant failed to give reasons for not complying with the time limit. Therefore, the absence of the notes of evidence and/or grounds of judgement is not a valid ground for not complying with the rule to file and serve the record of appeal within the prescribed time limit (proviso to Rule 4(l)). In Maranatha Tours & Travel Sdn Bhd v Ampang Specialist Centre Sdn Bhd (1977) MLJU 181 where it was held that the duty to prepare a proper record of appeal lay with the appellant, the appellant could not blame the other party if he himself did not have the sealed judgement and order of the court. The statutory requirements are mandatory and non-compliance would render the dismissal of the appeal.

Having considered that both applications are inter related to each other, I will consider such applications simultaneously. In supporting his application in Enclosure 9, the Appellant’s founded its reasons as follows:

that the Respondent’s objection are merely on the issue of technicalities and the Respondent’s failed to show as to how it would prejudiced them;

(ii) In view of Order 1A Rules of Court 2012, the Respondent’s did not suffered any miscarriage of justice; 8

(iii) it was not an inordinate delay; and

(iv) the Appellant’s has merit in its appeal. In supporting the application, the Appellant has rely on the case of: Cergas Tegas Sdn. Bhd. v. SAP Holdings Berhad & Anor

2 MLRA 91(CA), Abdul Malik JCA delivering the judgment of the Court : "...(1) Under O 2 r 3 of the Rules of the High Court 1980 ('RHC’), a court or judge shall not allow any preliminary objection by any party to any cause, matter or proceedings only on the ground of non-compliance with any of the provisions of the RHC, unless the court or judge is of the opinion that such non-compliance had occasioned a substantial miscarriage of justice.

In this instance, there was a delay of seven days in filing the record of appeal. Where the technicalities raised were strictly confined to non-compliance, disregarding and ignoring those technicalities would not occasion any miscarriage of justice. The appellant could not be faulted for the negligence of its solicitors in not filing the appeal record within the prescribed time, (paras 39- 40)

Since the respondents were served with the notice of appeal, it could be surmised that the respondents knew all along that the decision of the learned JC was being appealed against. And since learned counsel for the respective respondents had attended this court, it could not be said that the respondents were prejudiced by the delay on the part of the appellant.(para 43)...". 9 In the Case of: John Denis De Silva v. Crescent Court Management (2006) 1 MLRH 233, Abdul Malik Ishak J held : "Order 1A of the RHC must be read with 0 2 r 1(1) of the RHC as well as with 0 2 r 3 of the RHC and, when so read, the preliminary objection advanced by the defendant would come to naught. Of pertinence would be the need to have regard to the justice of the particular case and not to be shackled by any technical non-compliance of any of the rules of the RHC." As to the Merit of Appeal case : Cosway (M) Sdn. Bhd.& Anor. v. Gan Poh Im (2005) 1 MLRA 28(CA), Ariffin Zakaria JCA (as his Lordship then was) delivering the judgment of the Court : Further, we are of the view that there are merits in this appeal. Here, the learned judge had awarded a sum of RM66,250 as general damages for wrongful termination against the 1st appellant and also a sum of RM100,000 as aggravated damages for defamation against both appellants. The issue is whether the respondent is entitled to damages both for wrongful dismissal and for defamation at the same time. Also, the appellants had contended that that there is merit in the appeal at least on the quantum of damages awarded for defamation in the light of the recent decisions of this court. (See Karpal Singh Ram Singh v. DP Vijandran

1 MLRA 447: [2001] 4 MLJ 161; [2001] 3 CLJ 871; [2001] 3 AMR 3625 : Liew Yew Tiam & Ors v. Cheah Cheng Hoc & Ors (2001) 1 MLRA 125: [2001] 2 CLJ 385; [2001] 2 AMR 2320; Joceline Tan Poh Choo & Ors v. V Muthusamy

1 MLRA 459: [2003] 4 MLJ 494; [2003] 3 CLJ 705; [2003] 5 AMR 195.) 10 For the reasons given above, we hold that the learned High Court judge, in coming to her decision, had acted on a wrong principle and had she applied the correct principle to the facts of the present case, she would have arrived at a different conclusion. Accordingly we allow the appeal by the appellants and grant the appellants the extension of time from 23 April 1998 to 8 October 1998 to file and serve the memorandum of appeal dated 18 May 1998.

Upon perused the relevant Affidavits that was filed by both parties, it has come to my view that the Appellant’s/Plaintiff had stated that the failure to file the Memorandum of appeal was due to an oversight, but the question is oversight on whose part? The Appellant’s/ Plaintiff’s did not even mentioned on whose part it was an oversight. Nevertheless, the Appellant’s/ Plaintiff’s tried to justify the oversight on the fact that the grounds of judgment by the learned Session Court Judge have not been delivered. The question is when did the Appellant’s applied for the grounds of judgment. There was nothing in the Affidavit that shows the Appellant’s did so. Having read Order 55 Rule 4(1) Rules of Courts 2012, the Appellant’s solicitor must strictly adhered to the specific provisions of the rules and not give unreasonable excuses for failing to do so. Having said this, applying the principles in Pentadbir Tanah Kuala Selangor’s case, if the Appellant’s reason is to be accepted, it would open the paths for parties who do not vigorously and diligently prepared records of appeal within the prescribed time, submit frivolous reasons in the future. 11

Nevertheless, if the Appellant wishes to bring the appeal before this Honourable Court, the Appellant has to file and serve the record of appeal as required under Order 55 Rule 4(1). Order 55 Rule 4(1) Record of Appeal In the case of an appeal from a decision after trial, the appellant shall within one month from the date of filing of the notice of Appeal prepare and file the requisite number of copies of the record of appeal and the record shall contain copies of-

the relevant pleading;

the notes of evidence, including witness statements, if available;

the grounds of judgment, if available;

the memorandum of appeal;

the decision, order or judgment;

duplicate copy of the notice of appeal;

a duplicate copy of the notice of cross appeal, if any;

all such documentary exhibits and other documents the parties shall consider relevant for the purpose of the appeal; Provided that the record of appeal shall be filed notwithstanding that the notes of evidence and/or grounds of judgment are not ready or that the sealed decision, order or judgment has not been extracted. In the case of: Low Cheng Soon v. TA Securities Sdn Bhd.

1 CLJ 309 (CA), Alauddin Mohd Sheriff JCA delivering the judgment of the Court: 12 “……….There is no doubt in our minds and we agree with learned counsel for the respondent that this rule is mandatory. There are abundant authorities decided in our courts to suggest that the word "shall when used in any legislation means 'obligatory'. However we do not propose to cite these authorities. Suffice it for us to say that the word ‘shall' used in r. 18(4) (c) of the Rule reflects a measure of mandatoriness in it. As this is a mandatory rule it must therefore be strictly adhered to…………..” Based on the above authority, I noticed that Order 55 Rule 4(1) similarly used the word ‘shall’. Hence it is mandatory tor the Appellant to comply with Order 55 Rule 4(l) (d) & (h). Having failed to comply with Order 55 Rule 4(1), it is not open for the Appellant’s to now declare that their future would not prejudiced the Respondent. Hence on the above authority, this application ought to be dismissed and the appeal ought to be strike of. Applying the principles in the Federal Court’s decision in Gan Hay Chong’s case, I am of the opinion that the material facts given by the Appellant’s does not constitute a sufficient grounds for granting an extension of time to file the Memorandum of Appeal.

In the case of: Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v. Datuk Captain Hamzah Mohd Noor & Another (2009) 4 CLJ 329 (FC), Zaki Tun Azmi CJ delivering the judgment of the Court: “………..The technical non-compliance of any rule may be remedied where there is an accidental omission or oversight 13 by a party. A general provision such as 0.1 A RHC is for the court of judge to give heed to justice over technical non-compliance. It must not supersede a mandatory requirement of the Rules. 0.1A RHC cannot be invoked when a party intentionally disregards in complying with the Rules. Otherwise, parties would be encouraged to ignore the Rules………….”

After hearing the submission by both the learned counsel, in the premise, I have no other alternative than to conclude that the Appellant’s/Plaintiff’s application for an extension of time to file the Memorandum of Appeal (Enclosure 9) is hereby dismissed with cost RM2,000. On the other hand, I would allow the Respondents’ / Defendants’ application to strike out the Appellant’s/Plaintiff’s appeal (Enclosure 11) with cost RM2,000. Dated 05 October 2018 (DATO’ HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH) Judicial Commissioner (NCVC 6) High Court of Malaya Shah Alam, Selangor Darul Ehsan . Counsel For the Appellant : Shahirul Nazneen (Messrs. Surend, Mokhzani & Partnes) For the Respondent : M L Chan (Messrs. Mak Loo & Co.) 14