FEDERAL COURT OF MALAYSIA
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www.ipsofactoJ.com/appeal/index.htm [2000] Part 4 Case 5 [FCM] |
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FEDERAL COURT OF MALAYSIA |
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Coram |
Lam Kong Co Ltd - vs - Thong Guan Co Pte Ltd |
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S.F. CHONG CJ (SABAH & SARAWAK) MOHAMED DZAIDDIN FCJ HAIDAR
MOHD NOOR JCA |
20
MAY 2000 |
Judgment
SF Chong, CJ (Sabah & Sarawak)
(dissenting)
INTRODUCTION
By
a motion dated June 24, 1998 the applicant applied for leave to appeal to
the Federal Court against the decision of the Court of appeal made on May
28, 1998[a] striking out the appeal of the
applicant to the Court of Appeal against the decision of the High Court
dated December 29, 1997 on the ground that leave to appeal which, according
to the Court of Appeal, was necessary but was not obtained.
The
matter was heard before us on March 29, 2000 and April 13, 2000, and the
motion was dismissed with costs on a preliminary objection raised by the
respondent, It was a majority decision. I had the misfortune of dissenting.
We indicated that the grounds of our decisions would be given in due course.
I now give my reasons.
THE
PRELIMINARY OBJECTIONS
At the commencement of the hearing of the motion, counsel for the respondent raised three preliminary objections and submitted that by reason thereof the motion ought to be dismissed.
The
three preliminary objections were-
that
the Federal Court had no jurisdiction to hear the motion. (For the basis
of this contention, see the latter part of this judgment under the
heading "Preliminary objection (1)");
that
by reason of counsel for the applicant orally applying on its behalf
before the Court of Appeal for leave to appeal, the applicant was
estopped from contending before us that leave to appeal was not
necessary; and
that
there had been a failure to comply with Rule 107(2) of the Rules of the
Federal Court 1995 in that the application did not state whether the
intended appeal was against the whole or only a part of the judgment or
order, and, if only a part, which part of the judgment or order, and the
grounds therefor. This ground, however, was only faintly pursued. In any
event, I was of the view that the non-compliance would not vitiate the
motion. Effectively, this ground (3) would be thus disposed of.
BACKGROUND
FACTS
Before coming to preliminary objections (1) and (2), it would be useful to state briefly the relevant facts and circumstances leading to the motion before us. Pursuant to a sale and purchase agreement dated July 28, 1967 and entered between the parties herein, the applicant agreed to sell to the respondent 26 pieces of land for a total price of S$52,000 which had been paid in full. Disputes arose resulting in the respondent bringing this suit claiming, inter alia, for the transfer to itself the 26 parcels of land and certain consequential orders.
On January 14, 1980 the respondent obtained judgment-in-default of appearance. Pursuant to the default judgment, the Senior Assistant Registrar of the High Court executed the transfers of the 26 pieces of land in favour of the respondent.
Since
the land titles were not available, the land collector issued fresh land
titles. But, for some unknown reason, only 25 titles were issued instead of
26.
On
May 10, 1985, the Federal Court, on appeal by the applicant, set aside the
default judgment and remitted the case back to the High Court for trial.
However, the transfer of the 25 pieces of land to the respondent which had
already been effected remained intact.
Parties
then amended their pleadings upon which trial before the High Court
proceeded and resulted in the learned trial Judge granting the respondent, inter
alia, the following claims on December 29, 1997:
a
declaration that the 25 fresh land titles issued to the respondent were
valid;
that
the Registrar of Titles was to indorse the respondent as the registered
proprietor on the 25 titles;
that
the applicant was to deliver to the respondent the land title relating
to the 26th piece of land;
that
the applicant was to transfer the 26th piece of land to the respondent;
assessment
of damages for the delay on the part of the respondent;
costs.
By
a notice of appeal dated January 7, 1998, the applicant appealed to the
Court of Appeal. On the respondent's motion dated April 16, 1998, the Court
of Appeal on May 28, 1998 struck out the applicant's notice of appeal dated
January 7, 1998.
JUDGMENT OF THE COURT OF APPEAL
In its judgment, the Court of Appeal referred to s 68(1) of the Courts of Judicature Act 1964. On the assumed basis of it being "undisputed" (which the applicant in fact disputed) that the subject-matter being the sale and purchase agreement for the sale of the 26 pieces of land with the contract price below RM250,000, the Court of Appeal was of the view that leave to appeal was necessary and that since such leave was not first obtained, the appeal was incompetent and the notice of appeal was struck out.
The
Court of Appeal did not consider it making any difference to the fate of the
notice of appeal even if the subject-matter of the claim were the 26 issue
documents of title since they related to the 26 pieces of land that were
referred to in the sale and purchase agreement which stipulated the total
price of S$52,000 i.e. below RM250,000.
Against
the decision of the Court of Appeal on May 28, 1998, the applicant applied
to this court for leave to appeal.
PRELIMINARY
OBJECTION (1)
For
the respondent, it was contended that the Federal Court had no jurisdiction
to entertain this motion of the applicant dated June 24, 1998 for leave to
appeal against the decision of the Court of Appeal made on May 28, 1998
striking out the applicant's appeal. The basis for this argument was that
the Court of Appeal had the sole discretion to determine:
whether
or not leave to appeal to itself was required; and
if
leave to appeal was required, whether or not to grant leave to appeal to
itself;
and
that the decisions of the Court of Appeal on matters (i) and (ii) above were
final and non-appealable. Auto Dunia Sdn Bhd v Wong Sai Fatt [1995] 2
AMR 1943 FC was cited in support.
For
the applicant, counsel, while conceding that a decision of the Court of
Appeal granting or refusing leave to appeal to itself was non-appealable,
contended that the situation in the present case was different. Here, the
applicant argued, the Court of Appeal struck out the appeal on the basis
(which the applicant disputed) that leave to appeal to the Court of Appeal
was required. Richards v Richards [1989] 3 All ER 913 CA was cited to
illustrate that despite Lane v Esdaile [1891] AC 210 HL from which
the extended principle could be derived that where the law provided that an
appeal was to lie by leave of a particular court or courts, the grant or
refusal of leave was a non-appealable decision, the Court of Appeal had
jurisdiction (subject to the requirements of leave to appeal) to hear an
appeal from a County Court Judge's refusal to extend time for appealing to
the Judge from an order of the Registrar, departing from Podbery v Peak [1981]
1 All ER 699 CA.
Auto
Dunia, supra decided that on an
application to the Court of Appeal for leave to appeal to the Court of
Appeal against a decision of the High Court, the decision of the Court of
Appeal refusing leave (or, for that matter, granting leave) to appeal to
itself was not a judgment or order within s 96(a) of the Courts of
Judicature Act 1964 and therefore not appealable to the Federal Court. The
Federal Court accordingly had no jurisdiction to entertain an application
for leave against such a grant or refusal by the Court of Appeal.
In my view Auto Dunia, supra, is distinguishable from our present case. In Auto Dunia, supra, it was not disputed that leave to appeal to the Court of Appeal was necessary. Hence, what the Court of Appeal had to decide was whether to grant or to refuse leave.
In the present case, whether leave to appeal to the Court of Appeal is necessary is in dispute. The applicant took the stand that no leave to appeal was needed and hence did not apply for leave. On the other hand, the respondent maintained that leave to appeal was necessary and must be first applied for and obtained.
In the result, the Court of Appeal agreed with the respondent and ordered the applicant's notice of appeal to be struck out. In ordering the striking out, what dwelt upon the mind of the Court of Appeal was that leave to appeal was necessary and that since it was not first obtained, the appeal was incompetent and must be struck out. It was upon the above consideration that the appeal was struck out.
If
(which I am not deciding here) the Court of Appeal happened to be wrong in
its view that leave to appeal was required, then the striking out of the
notice of appeal would have been unjustified. The state of affairs are
significantly different from the Auto Dunia situation where it was common
ground that leave to appeal was an essential element and the issue for
the Court of Appeal was whether, on the facts and circumstances of the case,
to grant or not to grant. The distinction may be fine but nevertheless
important and subtle. Where it is beyond all question that leave to appeal
is necessary, the decision of the Court of Appeal in exercising its
discretion to grant or to refuse leave is not appealable. But where the
requirement of leave to appeal is in dispute, the Court of Appeal which
hears the appeal strikes out or dismisses the appeal on the view that it
takes that leave to appeal is necessary but not obtained. That decision of
striking out or dismissal would, in any view, be appealable, for the issue
here is not whether to grant or refuse leave to appeal (which would be
non-appealable), but rather whether the deciding court is right in holding
that leave to appeal is necessary.
SECTION
96(a) OF THE COURTS OF JUDICATURE ACT 1964
So
far as is relevant for our purpose, s 96(a) of the Courts of
Judicature Act 1964 provides:
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Subject to any .... rules regulating the proceedings of the Federal Court in respect of appeals from the Court of Appeal, an appeal shall lie from the Court of Appeal to the Federal Court with the leave of the Federal Court |
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(a) |
from any judgment or order of the Court of Appeal in respect of any civil cause or matter decided by the High Court in the exercise of its original jurisdiction... |
Relying
on the above quoted provisions of s 96(a), counsel for the respondent
submitted to the effect that the decision of the Court of Appeal striking
out the applicant's notice of appeal for want of leave to appeal to the
Federal Court was not a judgment or order in respect of a civil cause or
matter decided by the High Court in the exercise of its original
jurisdiction, and therefore not appealable.
I
am unable to agree with the contention. There can, of course, be no dispute
that the decision of the Court of Appeal on May 28, 1998 striking out the
applicant's notice of appeal for want of leave to appeal is a judgment or
order of the Court of Appeal. Neither can there be any dispute that the
decision of the learned trial Judge on December 29, 1997 granting the relief
sought by the respondent constituted a "civil cause or matter
decided by the High Court in the exercise of its original jurisdiction".
The question is: Can the striking out decision of the Court of Appeal
on May 28, 1998 be said to be "in respect of" a "civil
cause or matter decided by the High Court in the exercise of its original
jurisdiction". This, in my view, hinges on the construction of the
words "in respect of in s 96(a) of the Courts of Judicature Act 1964.
For the applicant, Dr Das relied on various cases for the interpretation of the words "in respect of". I would refer to only one of them. In Tolaram Relumal v State of Bombay AIR (1954) SC 496, s 18(1) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act (57 of 1947) called for consideration. The said s 18(1) provided:
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If any landlord either by himself or through any person .... receives any fine, premium .... in respect of the grant, renewal or continuance of a lease of any premises .... such landlord or person shall be punished .... |
One of the issues was that even assuming the accused had accepted a sum of Rs2,400, could the receipt of that sum be held, in law, to be a premium in respect of the grant of a lease? Delivering the judgment of the court, Mahajan CJ made the following observation on the expression "in respect of" (p 498 left col):
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'In respect of' means in its plain meaning 'connected with or attributable to' and therefore it is not necessary that there must be a simultaneous receipt by the landlord with the grant of the lease. So long as 'some connection' is established between the grant of the lease and the receipt of the premium by the landlord, the provisions of the section would be satisfied. |
In the Australian case of Trustees, Executors and Agency Co Ltd v Reilly [1941] VLR 110 (facts therein are not relevant for our purpose) Mann CJ explained the words "in respect of" thus (at p 111):
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The words "in respect" are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer. |
To my mind the explanations of Mann CJ and Mahajan CJ in the above two cases aptly describe the ordinary meaning of the words "in respect of". Guided by the explanations, the words "in respect of" in s 96(a) of the Courts of Judicature Act 1964 means, in my view, that there must be some connection or relation between the judgment or order of the Court of Appeal and the civil cause or matter decided by the High Court in the exercise of its original jurisdiction.
Applying
the above construction of the three words to the case presently under
appeal, the question is: Is there a connection or relation between the order
of the Court of Appeal striking out the applicant's notice of appeal on the
basis (which the applicant disputed) that leave to appeal was necessary but
not obtained and the High Court's decision granting the relief sought in the
action arising out of which the present appeal before us was brought. The
High Court's decision is in respect of a "civil cause decided by the
High Court in the exercise of its original jurisdiction." Hence, in my
view, there clearly is an undisputable connection or relation between the
said order of the Court of Appeal and the decision of the trial Judge in the
High Court.
It
follows that s 96(a) of the Courts of Judicature Act 1964 is applicable in
that the decision of the Court of Appeal made on May 28, 1998 striking out
the applicant's, notice of appeal is appealable subject, of course, to leave
of the Federal Court being granted.
In
so deciding, I, of course, have not lost sight of Auto Dunia, supra,
which I have earlier sought to distinguish.
ESTOPPEL
For
the respondent, it was further argued that the applicant, having orally
applied for leave to appeal in the course of the hearing before the Court of
Appeal, was estopped from contending that leave to appeal was not necessary.
I am unable to accept this argument. The point in issue relates to the
jurisdiction of the Court of Appeal i.e. whether the Court of Appeal had
jurisdiction to strike out the notice of appeal when the disputes seriously
in contest were whether s 68(1)(a) of the Courts of Judicature Act 1964 was
applicable so that leave of the Court of Appeal was necessary for the
appeal, and whether the principle laid down in Auto Dunia, supra,
applied. In law, where an objection to the jurisdiction of a lower court
appears on the face of the proceedings, a party who consented to the
exercise of the jurisdiction is not thereby estopped from subsequently
raising the objection. Farquharson v Morgan [1894] 1 QB 552 CA. This
is because the jurisdiction of a court of limited jurisdiction cannot be
enlarged by any form of estoppel.
In Dutton v Sneyd Bycars Co Ltd [1920] 1 KB 414 CA, the applicant, a workman, contracted certain disease whilst in the respondent's employment. Prior to suing for compensation on account of the disease suffered, he had received some payments from the respondent company and had signed certain forms. It was admitted that the disease the applicant suffered was not a disease mentioned in the relevant Schedule to the Workman's Compensation Act 1906, or in the orders extending the operation of that Schedule. For the applicant, it was contended that the respondent was estopped, by its conduct, from denying that the case came within the said Act. The County Court Judge held that the estoppel was established and awarded the applicant compensation. The respondent appealed to the Court of Appeal. In allowing the appeal, Warrington LJ observed: (419-420)
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The operation of the Act is confined to a certain class of cases, and it seems to me that the parties cannot by any form of estoppel or by agreement so enlarge the operation of the Act as to bring within it other cases, or to extend the limited statutory jurisdiction to those cases. |
In Foster v Usherwood 47 LJQB 30 the Registrar, upon an application by the defendant to have the case tried in a county court under certain provisions of the law (the provisions are of no relevance for our purpose) and with the plaintiff consenting to the application, made an order for the action to be tried in the County Court. Subsequently, however, he came to the conclusion that the relevant law gave him no jurisdiction to make the order, and he rescinded it. Eventually, the defendant appealed to the Court of Appeal where it was argued on his behalf that the parties had waived the objection. In his judgment, Bramwell LJ said:
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I do not understand what is meant by an agreement that the Registrar shall have jurisdiction. Where he has not, the parties cannot give it to him .... I am of opinion that this objection of want of jurisdiction is one which cannot be waived, and the parties cannot give jurisdiction by dispensing with something which is necessary to create it. |
Estoppel
in pais, as a matter of law, arises when a person by his conduct or
words makes a clear representation of fact either with knowledge of its
falsehood or with the intention that it should be acted upon, and the other
person has acted upon such representation and thereby altered his position
to his prejudice. In our instant case, the Court of Appeal had expressed its
view that leave to appeal was necessary. It was then that the applicant in
deference to the view of the Court of Appeal and, perhaps, to save time and
expenses of having to make a formal application that it applied orally for
leave. In any event, it was not granted by the Court of Appeal. The question
of acting upon the representation to the prejudice of a party does not
arise.
For
the above reasons, I was of the view that the preliminary objection of the
respondent failed. I would proceed to hear the applicant's motion for leave
to appeal.
Mohamed Dzaiddin FCJ
(delivering the majority judgment of the court)
This
was an application for leave to appeal to this court under s 96(a) of the
Courts of Judicature Act 1964 (the Act) from the decision of the Court of
Appeal given on May 28, 1998 and for ancillary orders.
At
the outset of the proceedings, Mr. Pathmanathan, counsel for the respondent,
raised a preliminary objection contending that the application is
misconceived because it is founded on the decision of the Court of Appeal
under s 68(1)(a) of the Act and not from its judgment or order in respect of
a civil cause or matter decided by the High Court in the exercise of its
original jurisdiction within the meaning of s 96(a) of the Act. Hence, the
motion should be struck out.
After
hearing counsel, by a majority decision (S.F. Chong, CJ (Sabah &
Sarawak), dissented),
we upheld the objection and struck out the motion with costs to the
respondent. Our reasons are these.
BACKGROUND
On
January 7, 1998 the applicant filed a notice of appeal in the Court of
Appeal against the decision of the High Court Johore Bahru in Civil Suit No
22-254-1979. On February 18, 1998, the applicant duly filed the appeal
record.
On
April 16, 1998, the respondent filed a motion to dismiss the appeal on the
ground that no leave was obtained from the Court of Appeal pursuant to s
68(1) of the Act. Subsequently, on May 7 and 8, 1998 respectively, the
applicant filed two other applications for leave to file a supplementary
appeal record and for stay of execution of the High Court order.
On May 28, 1998, the Court of Appeal heard the three motions. With respect to the respondent's application to strike out the applicant's notice of appeal, it was the submission of counsel that leave was necessary under s 68(1)(a) because the subject-matter of the appeal was less than RM250,000, based on the value stated in the sale and purchase agreement purportedly entered into between the applicant as vendor and respondent as purchaser. The relevant paragraph of s 68(1) reads as follows:
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68. |
Non-appealable matters |
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(1) |
No appeal shall be brought to the Court of Appeal in any of the following cases: |
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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; |
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The Court of Appeal accepted the above submission. In its 7 page judgment, the court held as follows:
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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 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 should 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' |
In
view of its decision to strike out the notice of appeal, the other two
motions were accordingly dismissed by the Court of Appeal with no order as
to costs.
ARGUMENTS ON THE PRELIMINARY OBJECTION
The crucial question here is whether the decision of the Court of Appeal, upon a motion by the respondent, striking out the applicant's notice of appeal is appealable to the Federal Court under s 96(a) of the Act. The material part of s 96(a) states:
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Subject to .... any rules regulating the proceedings of the Federal Court in respect of appeals from the Court of Appeal, an appeal shall lie from the Court of Appeal to the Federal Court with the leave of the Federal Court ... |
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(a) |
from any judgment or order of the Court of Appeal in respect of any civil cause or matter decided by the High Court in the exercise of its original jurisdiction .... |
The
thrust of Mr. Pathmanathan's submission is that the present application
originated from the Court of Appeal against its decision upon a motion by
the respondent to strike out the applicant's notice of appeal to the Court
of Appeal on the ground that the notice was filed without leave contrary to
s 68(1)(a) of the Act. The decision is not in respect of a civil cause or
matter decided by the High Court. But, it is a decision based on a motion to
strike out the notice of appeal filed in the Court of Appeal. Therefore, a
decision of the Court of Appeal that the applicant's notice of appeal
required leave under s 68(1)(a) is not a judgment or order within the
meaning of s 96(a) of the Act.
Counsel
relied solely on Auto Dunia Sdn Bhd v Wong Sai Fatt [1995] 2 AMR 1943
which held that refusal of leave to appeal by the Court of Appeal was not a
judgment or order within the meaning of s 96(a) of the Act.
Dr
Das, for the applicant, in his reply (see his written outline of submission)
submitted that it would seem that the Court of Appeal could not decide
anything on a cause or matter unless there was an appeal pending or an
intended appeal before it. It did not have any original jurisdiction like
the High Court, e.g. to grant an injunction, or to issue certiorari,
declaration or mandamus or to make declarations of rights. However,
if there was a pending appeal, by s 44 the Court of Appeal could make
adjunctive orders in relation to the appeal to facilitate the appeal e.g. a
stay, to order security, or to enlarge time, or to allow further evidence
etc. In addition, it could also deal with other matters relating to the
appeal e.g. that the appeal is incompetent because leave was not obtained or
that the notice of appeal was filed out of time or that the appeal record
was filed out of time etc. These are not orders made by the Court of Appeal
from a decision of the High Court, but in a sense, they are made for the
first time in the Court of Appeal. Relying on his submission that the
phrases "any judgment or order" and "in respect of"
are words of the wide amplitude, counsel contended that they are
nevertheless orders made in respect of an appeal from a decision made
by the High Court for it is the appeal from the High Court that vests the
Court of Appeal with jurisdiction to make orders. Thus, on a plain reading
of s 96(a), the phrase "any judgment or order of the Court of Appeal"
would give the Federal Court jurisdiction to receive an appeal from a
decision of the Court of Appeal.
Dr
Das's second point is on the decision of the Federal Court in Auto Dunia,
where it was held, per Edgar Joseph Jr, FCJ, that the exercise of a
discretion to grant or refuse leave to appeal is not a judgment or order
within the meaning of s 96(a) of the Act. According to counsel, the case was
decided purely on policy considerations addressed by the House of Lords in Lane
v Esdaile [1891] AC 210 with respect to leave requirements, namely, that
the objective of limiting appeals by requiring leave would be defeated if
there could be an appeal against the grant or refusal of leave itself.
Counsel referred us to the recent decisions of the English Court of Appeal
in Richards v Richards [1989] 3 All ER 193 which refused to apply Lane
v Esdaile and Kemper Reinsurance v Minister of Finance [1998] 3
WLR 630, a Privy Council decision distinguishing Lane v Esdaile.
He urged us to follow Richards v Richards and confine Auto Dunia
only to an order granting or refusing leave and not to cover a decision by
the Court of Appeal striking out a notice of appeal under s 68(1)(a) of the
Act for want of leave.
It
is trite that the Court of Appeal today no longer has any original
jurisdiction after the repeal of ss 45-49 of the Act by the Courts of
Judicature (Amendment) Act 1994 (Act A886). What remains is its criminal and
civil appellate jurisdiction. Section 67 gives the Court of Appeal
jurisdiction to hear and determine civil appeals from judgments or orders of
the High Court. Section 68 deals with non-appealable matters to the Court of
Appeal. We agree with counsel that under s 44 of the Act, a Judge of the
Court of Appeal can give incidental directions and make interim orders in
any proceeding pending before it which do not involve the decision of the
proceeding. Quite clearly, this jurisdiction is conferred on the Court of
Appeal to prevent any prejudice to the claims of the respective parties
pending the hearing of the proceeding. In our view, the key words in s 44
are "not involving the decision of the proceeding."
We
also agree that the Court of Appeal can deal with other matters relating to
or in pending appeal, e.g. whether the appeal is incompetent because leave
was not obtained or whether in a given situation leave was necessary, or
that the notice of appeal was filed out of time or the appeal record was not
filed in time, etc. The parties can apply to the court, which unless
otherwise provided are made by motion and heard in open court. See Part III
Rules of the Court of Appeal 1994. It is clear to us that the decision of
the Court of Appeal on those matters are decisions or orders made for the
first time in the Court of Appeal. Dr Das contended that although they are in
a sense (emphasis added) made for the first time in the Court of
Appeal, nevertheless they are orders or decisions made in respect of an
appeal from the decisions made by the High Court under s 96(a) of the Act.
If
the submission of Dr Das that whether leave is required or not are orders or
decisions made in respect of an appeal from the judgment or order made by
the High Court under s 96(a) of the Act is correct, it follows that the
granting or refusal of leave are also orders or decisions made in respect
of judgment or order made by the High Court, then Auto Dunia
was wrongly decided. With respect, we disagree.
It
would seem clear to us that the legal authority to decide whether leave is
required or not under s 68(1)(a) of the Act is the Court of Appeal and
therefore it follows that the decision of the Court of Appeal is final. To
hold otherwise would lead to absurdity and defeat the "filter"
principle unless an appeal from it is expressly given.
In
our view, there are two parts to s 68(1)(a) of the Act. Firstly, whether the
subject matter requires leave and secondly, if leave is required, whether it
should be granted or refused. Auto Dunia decided that the order
granting or refusing leave to appeal is final and not appealable. By
analogy, the decision of the Court of Appeal whether leave is required or
not should also similarly be final and not appealable.
In our view, such an interpretation would be in accord with the purpose or object of the legislature as provided by s 17A of the Interpretation Acts 1948 and 1967 (Act 388) which reads:
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17A. |
In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. |
The
purpose or object is the "filter" principle as decided by Auto
Dunia in which the same principle should be applied in the matter before
us.
So
a question that arises is whether the instant application for leave to
appeal is from the judgment or order of the Court of Appeal in respect of a
civil cause or matter decided by the High Court. Clearly, the application is
founded on the judgment of the Court of Appeal in a pending appeal made on
an application by the respondent to strike out the applicant's notice of
appeal on the ground that it was filed without leave of the Court of Appeal
as required by s 68(1)(a) of the Act. In short, the instant application is
not against the judgment of the Court of Appeal in respect of a civil cause
or matter decided by the High Court on the merits.
It is to be noted that Parliament has thought fit to impose conditions in respect of right of appeal from the Court of Appeal to the Federal Court under s 96(a) of the Act. The conditions are that leave of the Federal Court must be obtained and the matters that are appealable are from any judgment or order of the Court of Appeal in respect of any cause or matter decided by the High Court in the exercise of its original jurisdiction.
On
the true construction of s 96(a), we form the view that the judgment or
order of the Court of Appeal to appeal from must be in respect of a cause or
matter decided by the High Court on the merits and not in respect of
interlocutory judgment or order decided by the Court of Appeal upon the
hearing of an application made to it in a pending appeal before it. Unless
there is an express provision that an appeal shall lie from the Court of
Appeal to this court from its interlocutory judgment or order in respect of
a matter pending appeal before it, by necessary intendment of s 96(a) the
interlocutory judgment or order of the Court of Appeal is not appealable and
does not come within the meaning of s 96(a) of the Act.
We
were urged by Mr. Pathma that we should follow Auto Dunia which
adopted the policy considerations in Lane v Esdaile. Dr Das
however cautioned us that in the UK, Lane v Esdaile principle which
applied to cases where leave provisions are involved has not been extended
to a decision involving refusing to extend time to appeal, Richards v
Richards and to judicial review leave cases, Kemper Reinsurance.
In Auto Dunia the defendant made an application to the Federal Court for leave to appeal against the decision of the Court of Appeal refusing to grant him leave to appeal under s 68(1)(a) of the Act from the decision of the High Court Ipoh. The question which arose upon the preliminary objection was whether the refusal of leave by the Court of Appeal was "a judgment or order" within the meaning of s 96(a) of the Act. Having regard to the circumstances of the case and the language of the relevant statutory provisions viz ss 67, 68(1)(a), 96(a) and 97 of the Act, the Federal Court held it was not.
Edgar
Joseph Jr FCJ, in his judgment relied on the judgment of Lord Halsbury LC in
Lane v Esdaile. His Lordship also followed Ex p Stevenson
[1892] 1 QB 609 and In Re Poh [1983] 1 All ER 287 HL which applied
the ratio in Lane v Esdaile. In short, Auto Dunia
applied the principles enunciated therein. Thus, the true ratio of
the House of Lords decision is that where it is provided that an appeal
shall lie by leave of a particular court or courts, neither the grant or the
refusal of such leave is itself appealable, otherwise the introduction of
the 'filter' requiring leave would be pointless (per Lord Donaldson
MR in Richards v Richards (supra) at pp 197, 201). In the
result, there is no reason why this court should disagree with the reasons
and conclusion stated in Auto Dunia.
We
agree with Dr Das that Lane v Esdaile principle has not been applied
to applications for an extension of time for appealing (Rickards v
Richards) and to applications for leave to apply for judicial
review (Kemper Reinsurance). In fact, it has been applied in
numerous cases as binding authority for the more limited proposition
regarding power of a legal authority to grant or refuse leave to appeal.
Nevertheless, it was decided on the basis of policy consideration with
respect to leave, for if the grant or refusal of leave is itself appealable,
"the introduction of the 'filter' requiring leave would be
pointless" (Richards v Richards, supra).
In
Kemper Reinsurance, the case of O'Reilly v Mackman [1983] 2 AC
237 was referred to, in which Lord Diplock, at p 280 stated that the purpose
of the leave requirement was to protect the public administration against
false, frivolous or tardy challenges to official action. This policy has
something in common with the policy of requiring leave to appeal, namely to
act as a filter against frivolous or unmeritorious proceedings.
In
our view, based on the above statement of principles and in the context of s
96(a) of the Act, it is laudable, as a matter of policy, to restrict the
right of appeal from the Court of Appeal to the Federal Court with leave
only to cases where the judgment or order of the Court of Appeal is in
respect of any civil cause or matter decided by the High Court on the
merits. If a decision of the Court of Appeal made on a motion in a pending
appeal is appealable, then the result would be that there would be two
appeals in every case "in which,
following the ordinary course of things, there would only be one".
Hence, the policy of requiring leave to appeal under s 96(a) to act as a
"filter" against unnecessary appeals would be defeated.
In support of the above view, we rely on the reasoning of Lord Esher MR in Exp Stevenson who with great clarity analysed Lane v Esdaile. At p 611, the learned Master of the Rolls stated:
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I
am, on principle and on consideration of the authorities that have
been cited, prepared to lay down the proposition that, wherever
power is given to a legal authority to grant or refuse leave to
appeal, the decision of that authority is, from the very nature of
the thing, final and conclusive and without appeal, unless an appeal
from it is expressly given. So, if the decision in this case is to
be taken to be that of the Judge at chambers, he is the legal
authority to decide the matter, and his decision is final; if it
is to be taken to be that of the High Court, then they are the legal
authority entrusted with the responsibility of deciding whether
there shall be leave to appeal, and their decision is final. In either case there is no appeal to this court. What was said in the case of Lane v Esdaile supports the view that I am taking. But the very nature of the thing really concludes the question; for, if, where a legal authority has power to decide whether leave to appeal shall be given or refused, there can be an appeal from that decision, the result is an absurdity, and the provision is made of no effect. If the contention for the claimant is correct, it would follow that the case might be taken from one court to another till it reached the House of Lords on the question whether there should be leave to appeal. [emphasis added] |
Before concluding we would like to make one observation in respect of the application before us. It is this. The step taken by the applicant in this application is misconceived. We say so because though the Court of Appeal struck out the notice of appeal, the applicant's rights are not exhausted or shut out or for that matter in any way prejudiced. During the course of the hearing, it was brought to the attention of Dr Das the provision of Rule 16 in the Rules of the Court of Appeal 1994. Rule 16 reads:
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Where leave of the Court of Appeal is required, the application for such leave may be made to the Court before expiration of the time limited for bringing the appeal or within such enlarged time as the Court may allow. [emphasis added] |
The
applicant chose not to resort to Rule 16 but instead filed the present
application purportedly under s 96(a) of the Act.
In
reply, Dr Das submitted that the Court of Appeal, in its written judgment in
response to the oral application of counsel for the applicant that he be
allowed to file a motion for leave remarked, "We thought it was too
late in the day for the request to be entertained." Dr Das therefore
contended that it was pointless for the applicant to urge the Court of
Appeal to invoke its powers under Rule 16. However, a look at the order of
the Court of Appeal would show that there was no express order refusing the
request to file a motion under Rule 16. In the event, the remarks of the
Court of Appeal should be treated as obiter.
In
our view, it was still open to the applicant to file a motion setting out
the grounds in support thereof under Rule 16. Whether the applicant will
succeed or not is a different issue altogether. However, Dr Das further
contended that if the applicant were to proceed under Rule 16 and its
application is refused by the Court of Appeal, the applicant would be caught
by Auto Dunia. With due respect, by filing the present
application, the applicant in effect was attempting to circumvent Rule 16 by
coming straight for leave to the Federal Court. In our view, this is an
abuse of the process of the court. The applicant must and should first
exhaust all remedies available under the law.
CONCLUSION
In
our judgment, for reasons stated and as a matter of policy, the rational in Lane
v Esdaile, followed in Auto Dunia applies to cover a decision or
order of the Court of Appeal like the instant application.
Last
but by no means least, I have shown this grounds of judgment in draft to my
learned brother Haidar Mohd Noor JCA, who agreed with it. Accordingly, the
preliminary objection was upheld and the applicant's application for leave
under s 96(a) of the Act was dismissed with costs. Deposit to the respondent
to account of its taxed costs.
Cases
Tolaram Relumal v State of Bombay AIR (1954) SC
496; Trustees, Executors and Agency Co Ltd v Reilly [1941] VLR 1 10; Auto Dunia
Sdn Bhd v Wong Sai Fatt [1995] 2 MLJ 549 FC; Lane v Esdaile [1891] AC 210 HL;
Stevenson, Exp [1892] 1 QB 609; Dutton v Sneyd Bycars Co Ltd [1920] 1 KB 414 CA;
Foster v Usherwood 47 LJQB 30; Auto Dunia Sdn Bhd v Wong Sai Fatt [1995] 2 MLJ
549; Farquharson v Morgan [1894] 1 QB 552 CA; Lane v Esdaile [1891] AC 210 HL;
Padbery v Peak [1981] 1 All ER 699 CA; Richards v Richards [1989] 3 All ER 913
CA; Kemper Reinsurance v Minister of Finance [1998] 3 WLR 630; O'Reilly v
Mackman [1983] 2 AC 237; Poh, In re [1983] 1 All ER 287 HL; Richards v Richards
[1989] 3 All ER 913 CA.
Legislations
Courts
of Judicature Act 1964: s. 44, s. 67, s. 68(1)(a), s. 96(a), s. 97
Court
of Judicature (Amendment) Act 1994
Interpretation
Acts 1948 and 1967: s. 17A
Rules
of the Court of Appeal 1994: R. 16, Part III
Rules
of the Federal Court 1995: R. 107(2)
India
Bombay
Rents, Hotel and Lodging House Rates (Control) Act (57 of 1947): s.18(1)
United
Kingdom
Workman's
Compensation Act 1906
Representations
CV
Das, R Abraham and Sunita Sothi (Brockett & Cho) for Appellant
M
Pathmanathan and Gan Techiong (Gan & Lim) for Respondent
Notes:-
[a] @ www.ipsofactoJ.com/appeal [2000] Part 1 Case 9 [CA]
This decision is also reported at [2000] 3 AMR 3304
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