Oriental Steel Pipe Sdn Bhd v United Security Services Sdn Bhd (BA-12ANCvC-21-04/2024)

This appeal by the Appellant/Plaintiff arises from the Sessions Court's decision to allow the Respondent/Defendant’s application to amend its Defence. Dissatisfied with that decision, the Appellant/Plaintiff has filed the present appeal. Beyond the substantive issue of whether the Sessions Court was correct in allowing the Respondent/Defendant’s application to amend its Defence, this appeal also raises a critical preliminary procedural question: whether a subordinate court’s decision to allow or disallow an application to amend pleadings, as in this case, is appealable.

The primary issue for consideration in this appeal is the question of whether the decision by the Sessions Court which allowed the Respondent/Defendant to amend its Defence is appealable to this Court.

If the answer to the above question is in the affirmative, this Court is required to deliberate on the issue of whether the Sessions Court properly exercised its discretion in allowing the said application by the Respondent/Defendant. S/N DrKzykrw6k2K1bf3q0JHsg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

The law governing civil appeals from the subordinate courts to the High Court is stated in section 28 of the Courts of Judicature Act 1964. The relevant section provides as follows: Civil appeals from subordinate courts

(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. S/N DrKzykrw6k2K1bf3q0JHsg [5] In the corresponding provision of the Courts of Judicature Act 1964 that relates to civil appeal from the High Court to the Court of Appeal, section 68 reads as follows: Non-appealable matters

(1) No appeal shall be brought to the Court of Appeal in any of the following cases:

when the amount or value of the subject-matter of the claim (exclusive of interest) is less than two hundred and fifty thousand ringgit, except with the leave of the

where the judgment or order is made by consent of parties;

where the judgment or order relates to costs only which by law are left to the discretion of the Court, except with the leave of the Court of Appeal;

where, by any written law for the time being in force, the judgment or order of the High Court, is expressly declared to be final;

where a High Court dismissed any application for a summary judgment;

where a High Court dismissed any application to strike out any writ or pleading; and

where a High Court allowed any application to set aside a judgment in default.

(Deleted by Act A886).

No appeal shall lie from a decision of a Judge in Chambers in a summary way on an interpleader summons, where the facts are not in dispute, except by leave of the Court of Appeal, but an appeal shall lie from a judgment given in court on the trial of an interpleader issue. The Law and Principles in Relation to the Second Issue [6] The legal principles governing amendments to pleadings are well-established and firmly embedded in procedural law, rendering any detailed restatement unnecessary. These principles have been repeatedly articulated and consistently applied by the courts, leaving little room for doubt or the need for detailed restatement. This Court will proceed on the basis of these established doctrines to assess the matter at hand when determining the second issue. The Decision of this Court on the First Issue [7] It is evident that the applicable provision for purposes of the first issue is section 28 of the Courts of Judicature Act 1964. S/N DrKzykrw6k2K1bf3q0JHsg [8] It should be noted that section 28(1) of the said Act was amended in 2022 (see the Courts of Judicature (Amendment) Act 2022 (Act A1661) and it came into force on 5 September, 2022. This Act A1661 introduced the new paragraphs (b), (c) and (d) to section 28(1) (and the corresponding paragraphs (e), (f) and (g) to section 68(1)). [9]

(1) The Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction, subject nevertheless to this or any other written law regulating the terms and conditions upon which such appeals shall be brought. (2) The Court of Appeal shall have all the powers conferred by section 24A on the High Court under the provisions relating to references under order of the High Court. [20] In relating to the appellate civil jurisdiction of the High Court, section 27 provides as follows: Appellate civil jurisdiction

The appellate civil jurisdiction of the High Court shall consist of the hearing of appeals from subordinate courts as hereinafter provided. S/N DrKzykrw6k2K1bf3q0JHsg [21] In articulating the majority decision, Idrus Harun FCJ held as follows: [120] From the decision of this court in Kempadang, it is becoming increasingly apparent that reading s 3 in the definition of the word ‘decision’ harmoniously with s 67 of the Act, the provisions clearly limit the right of appeal in both criminal and civil appeals. I would accept entirely that decision as broadly stating the correct position of the law having construed the word ‘decision’ together with the provisions of ss 50 and 67–68 of the Act unless there is something in the Act that would convince me to come to some other conclusion. I am prepared to go further to say that I have been very careful perusing through the relevant provisions of the Act, and upon reading them all, the conclusion at which I am constrained to arrive is that I cannot glean a great deal that is very decisive from a perusal of these provisions that would persuade me to hold that the word ‘decision’ as defined in s 3 of the Act does not extend to civil appeals or ought to be disregarded in interpreting ss 67–68 of the Act. … [132] In view of the above provisions, it is quite correct and reasonable to imply that matters that are non-appealable in civil cases are expressly provided for in s 68 of the Act. However, in my view, it is incorrect to assume that the definition of the word ‘decision’ does not apply to civil appeals since matters that are non-appealable are already expressly provided for under s 68 of the Act. I should emphasise further that s 68 of the Act does not exhaustively define the types of matters that are not appealable. While it cannot be denied that s 3 may be an interpretation section of the Act, that does not preclude Parliament in the exercise of its legislative authority and within its legislative competence under the Federal Constitution, from providing an additional exclusion of the S/N DrKzykrw6k2K1bf3q0JHsg matters that cannot be appealed against in a different fashion that is, by enacting the excluding clause in the definition of the word ‘decision’ in interpretation section. The reason why it is enacted in that fashion is not difficult to fathom and it is this. The exclusion of appeals against non-final decisions, as shown above, is clearly intended to apply to both civil and criminal appeals and to achieve that overarching objective, it would be convenient to enact one common provision that would apply to both types of appeals. [133] The correct approach in my view is to read s 68 with the definition of ‘decision’ in s 3 of the Act in stating the matters that are not appealable to the Court of Appeal in civil cases. When these words are read with s 67 of the Act, such a ‘decision’, ‘judgment’ or ‘order’ which falls within the exclusionary words in the definition of the word ‘decision’ is without any doubt not appealable to the Court of Appeal. … [138] I would thus read into s 68 of the Act a further exclusion to the jurisdiction of the Court of Appeal in the form of the definition of ‘decision’ in s 3 of the court. The terms ‘judgment’ or ‘order’ in s 3 of the Act should be transposed into s 68 of the Act in stating the matters that are not appealable to the Court of Appeal. It is a settled rule of statutory interpretation that the court is permitted to read additional words into a statutory provision where clear reasons for doing so are to be found within the statute itself. This established rule was stated in the oft-quoted House of Lords decision of Vickers, Sons and Maxim Limited v Evans [1910] AC

Lord Loreburn’s statement of principle on the point reads as follows: The appellants’ contention involves reading words into this clause. The clause does not contain them; and we are not entitled to read S/N DrKzykrw6k2K1bf3q0JHsg words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself … The principle in Vickers has been cited repeatedly by the apex court in this jurisdiction when interpreting statutory provisions (see, as examples, the Supreme Court in Vengadasalam v Khor Soon Weng & Ors [1985] 2 MLJ 449 at p 450 and the Federal Court in Sri Bangunan Sdn Bhd v Majlis Perbandaran Pulau Pinang & Anor [2007] 6 MLJ 581 at para [18]). … [149] Accordingly, I have no difficulty in holding that the present position in the law clearly shows that an appeal does not lie against a decision in an amendment application made in the course of trial as is in the instant action, and moreover, such a decision does not finally dispose of the rights of the parties. There is in my judgment no basis in the respondents’ contention that the High Court’s decision is appealable as it is a ruling made in the course of hearing the interlocutory application but rather a decision made at the conclusion of the hearing of the said application on its merits. Yet to my mind the respondents have obviously misconstrued the definition of ‘decision’ in s 3 in the context of s 67 of the Act. What characterises as being a decision as being appealable or otherwise is not only confined to a question of whether a ruling has disposed of the final rights of the parties but also whether it is a decision made in the course of a trial or matter. Therefore, it matters not if the decision is made at the conclusion of the interlocutory application. The plain fact is that such interlocutory application was indisputably made and heard in the course of the trial of the instant suit. It was decided before the High Court delivered its judgment on liability. S/N DrKzykrw6k2K1bf3q0JHsg [22] On the authority of this Federal Court decision in Asia Pacific Higher Learning, the Appellant/Plaintiff’s appeal against the decision of the Sessions Court is incompetent and not properly brought before this Court. [23] Nonetheless, there is an intriguing nuance to the argument. The Appellant/Plaintiff contended that the decision in Asia Pacific Higher Learning is not applicable to the present appeal, as that case involved an appeal from the High Court to the Court of Appeal, whereas the current appeal concerns a matter from the subordinate court to the High Court. Central to the Appellant/Plaintiff’s argument is the assertion that “there is a clear distinction between the appellate civil jurisdiction of the High Court and that of the Court of Appeal.” In support of this proposition, the Appellant/Plaintiff relied on the Court of Appeal’s decision in Nor Hazliza bt Ismail & Anor v Mohamed Yusoff bin Shaik Madar [2024] AMEJ 0258; [2024] 4 CLJ 353; [2024] 4 MLJ 770; [2024] 3 MLRA 371. [24] This Court is of the considered view that principle enunciated by the Federal Court, albeit one that is a majority decision, applies to all civil appeals, regardless of whether they emanate from the subordinate court (to the High Court) or from the High Court (to the Court of Appeal). As the decision by the Sessions Court pertaining to the application by the Appellant/Plaintiff to amend its Defence does not dispose of the final rights of the parties, his Court is bound by the decision in Asia Pacific Higher Learning and holds that the decision is non-appealable. The Decision of this Court on the Second Issue [25] In the event this Court has erred in its conclusion on the preliminary issue of “jurisdiction,” it remains the considered view of this Court that the S/N DrKzykrw6k2K1bf3q0JHsg learned Sessions Court Judge did not err in law or fact in allowing the amendment. This Court is satisfied that the learned Judge carefully evaluated the arguments presented by both parties and correctly applied the relevant principles of procedural law to the specific factual circumstances of this case. [26] During the hearing of this appeal, when questioned by this Court, learned counsel for the Appellant/Plaintiff conceded that since the Appellant/Plaintiff’s pleaded case is based on the tort of negligence, the amendment sought (by the Respondent/Defendant) and allowed (by the Sessions Court) does not cause any prejudice to the Appellant/Plaintiff that cannot be adequately remedied by an award of costs. The Decision on this Appeal and on Costs [27] In view of the findings by this Court on the above dual issues, this appeal is dismissed with costs. [28] The Appellant/Plaintiff to pay costs of RM10,000 to the Respondent/Defendant. Dated: 21 January, 2025 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam S/N DrKzykrw6k2K1bf3q0JHsg Counsel: Ho Yuk Yuen with Amirah Najihah binti Ameruddin and Allisa Loh Yee Shin for the Appellant (Messrs. Y.Y. Ho & Lee) Mandave Singh Gill a/l Harinder Singh for the Respondent (Messrs. K. Siladass & Partners)