Judgment

Lamin Mohd Yunus PCA

(delivering the judgment of the court)

1. There were three applications before us namely Encls (7a), (8a) and (11a). Enclosure (7a) was an application by the appellant for leave to file an additional record of appeal. Enclosure (8a) was an application also by the appellant for a stay of the order made by the High Court on December 29, 1997 pending the final disposal of the appeal by this court on the said order. Enclosure (11a) was an application by the respondent praying for an order that the appellant's appeal filed in this court on January 7, 1998 be dismissed on the ground that it was filed without first obtaining the leave of this court and therefore incompetent.

2. The three applications came before us on May 28, 1998. We decided to hear Encl (11a) first as the fate of the other two applications would depend on the outcome of the application in Encl (11a). We unanimously allowed the application with costs. The notice of appeal was struck out. Accordingly the motions in Encls (7a) and (8a) must be dismissed and we therefore dismissed them but with no order as to costs.

3. If we may briefly state the background of this case which is as follows.

   • The respondent (the plaintiff below) on July 28, 1967 entered into a sale and purchase agreement with the appellant (defendant below) wherein the respondent agreed to purchase twenty six pieces of land situated at Pandan Road in the District of Johore Bahru, Johore in the Mukim of Tebrau at the price of S$52,000 [see agreement p 14 of Encl (11a)].

   • The respondent paid the full purchase price but for several years the directors of the appellant could not be located in order to facilitate the transfer.

   • The respondent then filed a writ at the Johore Bahru High Court against the appellant. Upon service being effected with the original statement of claim, the appellant failed to enter appearance. The respondent thereby entered default judgment on January 14, 1980.

   • On March 22, 1982 upon the respondent's application, the Senior Assistant Registrar executed the instruments of transfer and authorised the respondent to apply to the Collector of Land Revenue, Johore for the issuance of new issue documents of title.

   • On October 28, 1984 the Collector of Land Revenue issued new issue documents of title to the respondent. But due to some error, the transfer was only effected in respect of 25 pieces out of 26. The last title was still in the possession of the appellant.

   • However the default judgment dated January 14, 1980 was subsequently set aside by the Federal Court on May 10, 1985 thereby rendering it necessary to proceed to trial. For the purpose of the trial, an amended statement of claim was filed [see p 20 of Encl (8a)] and a decision of the court was delivered on December 29, 1997 [see p 16 of Encl (7a)].

4. Section 68(1) of the Courts of Judicature Act 1964 ("the Act") states that no appeal shall be brought to the Court of Appeal:

   (a)	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 Court of Appeal.

5. It is undisputed that the value of the subject-matter in this case which was the value of the contract price was below RM250,000 and we are of the view that it falls squarely within the requirement of s 68(1)(a) of the Act in that leave must first be obtained before an appeal can be filed. Learned counsel for the applicant / appellant in respect of Encls (7a) and (8a) however argued that the declaration prayed for in the statement of claim would come within the terms of the Court of Appeal Practice Direction No 2 of 1996 relating to "declarations" and so no leave would be required. The said Practice Direction lays down the types of declarations in respect of which leave is not required thus:

   (ii)

   Deklarasi - untuk mengisytiharkan bahawa sesuatu pemberian lesen, perbuatan, peninggalan atau keputusan sesuatu badan atau mana-mana orang yang diberi kuasa oleh undang-undang adalah tidak sah dan terbatal. [Translation: Declarations - to declare that the giving of a licence, an act, an omission or decision of a body or person empowered by law is invalid and annulled.]

6. It is quite dear to us that the declarations as described above are those that relate to subject-matters which either do not have any value attached to them or its value cannot be quantified. In the case before us, the subject-matter was the sale and purchase agreement with a contract price relating to the sale price of the 26 pieces of land.

7. Learned counsel for the applicant / appellant also urged us that the damages prayed for in prayer (vi) in the statement of claim should be added to the value of the subject-matter so that the total value would be unknown; thus it would pass the test laid down in s 68(1)(a) of the Act and therefore leave would not be required. We however were unable to accept such a proposition for the reason that s 68(1)(a) of the Act clearly specifies that the "value" that is required to be quantified must be the "value" of the subject-matter "of the claim". The damages as prayed in prayer (vi) are only consequential. They are not the "subject-matter of the claim".

8. In his final submission, the learned counsel for the applicant / appellant asked the court that he be allowed to file a motion for leave. We thought it was too late in the day to entertain the request. The said Practice Direction was issued in 1996, while the present applications were filed two years later.

9. To interpret item (ii) of the said Practice Direction against s 68(1)(a) of the Act is not a difficult task. The case of Amer Mohideen Dawood v Sneh Bhar Ter Binder Singh [1996] 2 AMR 1777 was cited to us in support of the proposition that an appeal the subject-matter of which comes within the terms of s 68(1)(a) of the Act where the value is less than RM250,000 is incompetent. The Court of Appeal in this case decided on the meaning of the words "the amount of the claim" or "the value of the subject-matter of the claim" in s 68(1)(a) of the Act. It decided that the "amount" or "value" must be "the total amount of the claim in the action which has been adjudged to be payable" or the value of the subject-matter of the claim "in the action which has been adjudged as recoverable because it is against the judgment (and not against the claim made by the claimants in the pleadings)".

10. That case was decided on April 6, 1996 which was before the issuance of the said Practice Direction. (They were issued on June 27, 1996).

11. In the present case, the whole action had been disposed of. The purchase price of the land was S$52,000 which was below RM250,000 as in the agreement. Even if the 26 issue documents of title were to be taken as the subject-matter of the claim, they must still be considered as having value because they relate to those 26 pieces of land as referred to in the sale and purchase agreement which stipulated the total price. In Amer Mohideen Dawood, the value of the subject-matter of the order for specific performance of the sale and purchase agreement of September 14, 1989 was the purchase price of the land which was RM99,000. Being below RM250,000 the court ruled that the "appeal was therefore incompetent as no leave to appeal was obtained from the Court of Appeal.” In the case before us it was the matter of declaration that added another fact to the case. Once the “subject-matter of the claim” has been identified and its value determined the question of declaration becomes a non-issue.

Cases

Amer Mohideen Dawood v Sneh Bhar Binder Singh [1996] 2 AMR 1777

Legislations

Courts of Judicature Act 1964: s.68(1)(a)

Practice Direction No. 2 of 1996

Representations

R Abraham and S Sothi (Brockett & Cho) for Appellant

M Pathmanathan and Gan Te Chiong (Gan & Lim) for Respondent

Notes:-

Appellant applied for leave to appeal to the Federal Court. The Federal Court (Mohamed Dzaiddin Abdullah FCJ & Haidar Mohd Noor JCA and Chong Siew Fai CJ (Sabah & Sarawak), dissenting) dismissed the application on 13/4/2000: see Lam Kong Co Ltd v Thong Guan Co Pte Ltd @ www.ipsofactoJ.com/appeal/index.htm [2000] Part 4 Case 6 [FCM].

This decision is also reported at [2000] 1 AMR 669; [2000] 1 MLJ 129