Tan Chai Huat v Yap Tian Leong (BA-12B-31-02/2017)

The Session Judge heard two applications filed by the Appellant (Plaintiff) and the Respondent (Defendant) which was heard simultaneously. The Plaintiff’s Enclosure 6 is for Extension of Time to file Memorandum of Appeal and Enclosure 4 is by the Defendant to strike out the Record of Appeal. The Session Judge dismissed the Plaintiff’s Enclosure 6.

This is an appeal on the decision of the Session Judge which dismissed the Plaintiff’s application under Enclosure 6.

Judgment dated 20.1.2017 was delivered by the Sessions Court. The Notice of Appeal was filed on 1.2.2017 and the Appeal Record was filed on 1.3.2017. At the time of filing the Appeal Record, the grounds of judgment were not available.

The Plaintiff’s counsel filed Enclosure 6 on 23.3.2017. The Plaintiff’s counsel affirmed an Affidavit dated 24.3.2017 explaining that it was a genuine oversight on his part to file a Memorandum of Appeal and seeking for an extension of time. 3

The Defendant’s An Affidavit in Reply by the Defendant’s counsel was affirmed on 7.4.2017.

The learned counsel for the Plaintiff submitted that based on its Affidavit of 24.3.2017, it was not possible to file the Memorandum of Appeal based on the reasons, among others, that he was totally unaware of the submission dates and by the time he knew, it was too late to defer the date and the decision was delivered in his absence. The Plaintiff’s counsel submitted that he was unable to include the Memorandum of Appeal as he had no iota of grounds to be included and averred that the grounds of judgment were only ready by mid-March 2017.

The Plaintiff’s counsel submitted relying on Order 2 rule 3 of Rules of Court 2012 (ROC 2012) that this Court should allow his appeal, taking into account the substance over form. The Plaintiff’s counsel relied on the case of Duli Yang Maha Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah Mohd Noor & Another Appeal [2009] 1 MLRA 528 that based on Order 1A of ROC 2012, where there is an accidental omission or oversight by one of the counsel, it may be remedied.

The Plaintiff’s counsel also relied on Order 92 rule 4 of ROC 2012 for this Court to make an order to prevent any injustice to the appellant who had not submitted on the merits of his case at the Sessions Court. 4

In relation to the Defendant’s Enclosure 4, the Plaintiff’s counsel averred that Order 55 rule 4 (1) and (8) of ROC 2012 had been complied with and argued that the one month timeline is 30 days which would mean for the month of February that has 28 days, the 30 days period would expire on 3.3.2017. It was also averred that the failure of the Plaintiff’s counsel to file the Memorandum of Appeal be ignored as it does not caused miscarriage or prejudice to the Defendant.

On Enclosure 6, the learned counsel for the Defendant submitted referring to its Affidavit in Reply that the Plaintiff’s counsel attended the Sessions Court on 24.11.2016 where the full trial was concluded and the Session Judge had directed that written submissions be filed and exchanged simultaneously on 9.1.2017, the date of decision fixed for 20.1.2017 and any reply to the submissions be made before the decision date (exhibit “CLH-1”).

The Defendant’s counsel submitted that the Plaintiff’s counsel received the Defendant’s counsel’s letter of 9.1.2017 on 9.1.2017 which was served with a copy of the written submission and the Bundle of Authorities. It was averred that the Plaintiff’s counsel would have two notices which are the oral directions of the Session Judge on 24.11.2016 and the Defendant’s counsel’s letter of 9.1.2017.

It was submitted that the Plaintiff’s counsel’s claim that the date of decision was known only on 18.2.2017 ought to be rejected by this Court 5 and averred that the Plaintiff’s counsel had offered no explanation for his late arrival in Court on 20.1.2017 at 9.20am when the Court’s notice had stated that the Decision is fixed on “Wednesday, 20.1.2017 at 9.00a.m.”

The Defendant’s counsel further averred that the pursuant to Order 55 rule 4(1)(d) of ROC 2012, the Memorandum of Appeal must be included and failure to be adhered for the reason of unavailability of grounds of judgment is not an excuse. Relying on a number of authorities, Tan Siew Peng v OCBC Bank (M) Bhd. [1998] 2 MLJ 420 CA, the case of Chuah Tim Lan v RHB Bank Bhd & Anor [2008] 6 MLJ 793, CA, the Defendant’s counsel submitted that the Plaintiff’s counsel’s Affidavit in Support failed to allege that the Appeal has merit and failed to provide the particulars of merit.

In relation to Enclosure 4, the Defendant’s counsel applied this Court for an Order that the Record of Appeal be struck off for non-compliance with the mandatory provisions of Order 55 rule 4(1) and (8) and rule 4(1)(d) of ROC 2012, relying on Supreme Court cases, General Ceramics Manufacturers Sdn Bhd v Non-Metalic Mineral Products Manufacturing Employees Union & Anor [1988] 3 MLJ 474 SC and the case of Setali Development Sdn Bhd & Anor v Lim You Keng [1984] 1 MLJ 26 FC.

The Defendant’s counsel submitted the chronology to show that there was non-compliance of Order 55 rule 4(1) and (8) and rule 4(1)(d) of ROC 2012: 6

1.2.2017 : the Notice of Appeal filed by the Plaintiff’s counsel;

2.2.2017 : receipt of Notice of Appeal by Defendant’s counsel;

22.2.2017 : Plaintiff’s counsel faxed a letter of 22.2.2017 with a Draft Index to the Record of Appeal to Defendant’s counsel where amendments made to “7. MEMORANDUM RAYUAN” but the Plaintiff’s counsel did not amend the Draft Index and not Memorandum of Appeal was compiled;

2.3.2017 : a copy of Plaintiff’s counsel’s letter of 28.2.2017 with copy of Record of Appeal was served by way of Poslaju to Defendant’s counsel;

3.3.2017 : the Defendant’s counsel sent letter dated 3.3.2017 by facsimile transmission, by email and by ordinary post to Plaintiff’s solicitor stating that the service of the Record of Appeal on 2.3.2017 was accepted on a strictly without prejudice basis for being out of mandatory time limit which expired on 1.3.2017 and the Record of Appeal is defective as it contains no Memorandum of Appeal (exhibit “CLH 6”). The Defendant’s counsel also pointed to this Court that the Plaintiff’s counsel did not file an Affidavit to Oppose Enclosure 4. 7 APPEAL [16] Having read the written submissions and heard the oral submissions of both counsels, upon careful perusal of the documents and the facts before this Court, it is this Court’s finding that the Record of Appeal claimed to be filed on 1.3.2017 by the Plaintiff (paragraph 5 (h) of Affidavit in Support dated 24.3.2017) was not tendered as exhibit nor did it become part of Affidavit in Support of the Plaintiff’s counsel, which is the letter of extension purportedly served to Court and to the Defendant’s counsel. [17] This Court referred to the Affidavit in Support by the Plaintiff’s counsel stating among others that he failed to include in his diary of the submission date and only knew of the Decision date of 20.1.2017 on 18.1.2017 and that he arrived in Court on 20.1.2017 at 9.20am when the Decision had been delivered (paragraph 5(c), (d) and (g) of Affidavit in Support. Based on Defendant’s counsel’s exhibit CLH-2, the Plaintiff’s counsel was clearly notified of the Decision date and written submission date for the second time. [18] This Court finds that there was no shred of evidence to prove that the Record of Appeal was filed on 1.3.2017 as claimed and no explanation offered for the delay to appear before the Sessions Court for Decision on 20.1.2017. Following Order 55 rule 4(1) and (8) of ROC 2012, the timeline is a mandatory provision that must be adhered to which had been followed by many authorities and this Court relied on the case attributed by the Defendant’s counsel, the case of Chuah Tim Lan v RHB Bank Bhd & Anor [2008] 6 MLJ 793, CA. 8 [19] This Court also referred to the definition of ‘month’ which follows the Gregorian calendar month stipulated under section 3 Definitions of the Interpretation Acts 1948 and 1967 where it is clearly stated, “ “month” means a month reckoned according to the Gregorian calendar. ” Based on the statutory definition and the Supreme Court cases of General Ceramics (supra) and Setali Development (supra) attributed by the Defendant’s counsel, this Court holds the view that no other meaning could be ascertained from the express definition of ‘month’ where it is clearly stated as Gregorian calendar month which means the deadline was on or before 1.3.2017 for the Record of Appeal to be filed. [20] I am aware of this Court’s discretionary powers as embedded under Order 92 rule 4 of ROC 2012 which I bear in mind must be exercised sparingly. In reference to the Federal Court case of Duli Yang Amat Mulia Tunku Ibrahim Ismail (supra), it was held that Order 1A of ROC 2012 cannot be invoked to cure non-compliance of mandatory provisions of ROC

In view of the above reasons, I dismiss Enclosure 6 with cost and allowed Enclosure 4 with cost. Dated: 29 January 2018 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 9 COUNSEL FOR APPELLANT/ PLAINTIFF K. PERIASAMY Tetuan Periasamy & Co. Peguamcara & Peguambela No. 10-1A, Jalan Bandar 8 Pusat Bandar Puchong, 47160, Puchong, Selangor Tel: 03-5891 1567/68 Fax: 03-5891 1569 Email: periasamyco@gmail.com [Ruj: PK/0051/15/L/TCH] COUNSEL FOR RESPONDENT/DEFENDANT L. H. CHUA Tetuan L. H. Chua Advocate & Solicitor Box 337, Block D, Lot D8, 2nd/3rd Floor, Fahrenheit 88 (KL Plaza) No. 179, Jalan Bukit Bintang, 55100 Kuala Lumpur Tel: 03-21431675, 2143 1681, 2143 1686. Fax: 03-2143 1695 Email: paul@plhchua.po.my [Ruj: PC/C/1435/15/Y]