Malaysia

- vs -

Sim

Judgment

Wan Suleiman FJ

(delivering judgment of the court written by HH Lee CJ (Borneo))

1. On 5 September 1977 appellant was granted conditional leave to appeal to His Majesty the Yang di-Pertuan Agong against the order of this court dated 14 July 1977 on the two usual conditions: —

   1. That appellant do within three months enter into good and sufficient security in the sum of $5,000 for the due prosecution of the appeal and the payment of all such costs as may become payable;

   2. That appellant do within the period of three months procure the preparation of the record of appeal.

2. By a motion dated 10 December 1977, appellant applied for an order that the time for complying with the two above conditions be enlarged for a further two months from 5 December 1977. An affidavit was filed in support of the application. Paragraph 3 of the affidavit sets out the reason for the application and reads: —

   The record of appeal involves several bulky exhibits which have to be sorted out and photostated. It will take time to prepare the record of appeal which will be very voluminous. In view of the foregoing, the time of three months granted by this Honourable Court is inadequate to complete the preparation of the record of appeal.

3. Respondent took objection to the application on the ground that the deposit was paid on 22 December 1977, i.e. 17 days late. Appellant conceded the late payment. But no reason was given in the affidavit for this late payment.

4. Rule 7 of the Federal Court (Appeals from the Federal Court) (Transitional) rr 1963 states: —

   7.

   Leave to appeal to the Yang di-Pertuan Agong in a civil matter shall only be granted by the court in the first instance — (a) upon condition of the appellant, within a period to be fixed by the court, but not exceeding three months from the date of the hearing of the application for leave to appeal, entering into good and sufficient security, to the satisfaction of the court, in a sum not exceeding $5,000 for the due prosecution of the Appeal, and the payment of all such costs as may become payable to the respondent in the event of the appellant not obtaining an order granting him final leave to appeal, or of the appeal being dismissed for non-prosecution, or of the Yang di-Pertuan Agong ordering the appellant to pay the respondent’s costs of the appeal, as the case may be; and (b) upon such other conditions, if any, as to the time or times within which the appellant shall take the necessary steps for the purpose of procuring the preparation of the record and the despatch thereof to England as the court, having regard to all the circumstances of the case may think it reasonable to impose.

5. It is the contention of appellant that the provisions of r 7 do not apply to appellant as the Government. Reference was made to ss 18 and 30 of the Government Proceedings Ordinance, 1956 which read: —

   18.	Subject to the provisions of this Ordinance, the provisions of the written law relating to procedure shall apply to civil proceedings by or against the Government in the same way as to suits between subject and subject.
   19.	Subject to the provisions of this Ordinance, all ordinances, enactments and rules of court relating to procedure shall apply to execution shall, with any necessary modifications, apply to civil proceedings by or against the Government as they apply to proceedings between subjects.

6. Appellant’s submission is that these should be read subject to modification that the Government be exempted from paying a deposit as Government is always sure to pay costs if so ordered. Senior Federal Counsel appearing for appellant pointed out that as a matter of practice Government had always paid the deposit. As to the printing of the record this will take time. The Government Printer could not do it because of other commitments so it would have to be done by a private printer. Further, it was submitted that the application should be granted on the ground of the merits of the appeal.

7. Respondent raised two objections to the application.

   • First, there is no power to extend time under r 7.

   • Secondly, there is no material to justify the extension of time.

   The affidavit says nothing about the delay of payment of deposit so that there is nothing on which the court could act. As to preparation of the record, the respondent took less than three months to prepare the record. The question is not that no harm has been caused by the delay, but a matter of principle is involved.

8. Section 39 of The Interpretation and General Clauses Ordinance, 1948 which is still applicable to the present case reads:—

   Where in any written law a time is prescribed for doing any act or taking any proceeding and power is given to a court or other authority to extend such time, unless the contrary intention appears the power may be exercised by the court or other authority although the application for the same is not made until after the expiration of the time prescribed.

9. The rights to appeal are statutory creations. As such the question of inherent jurisdiction does not come in. In Ohene Moore v Akesseh Tayee [1935] AC 72 the Privy Council held that an appellate court could not waive compliance with statutory requirements. That was a case of an appeal from the Native Tribunal. Under s 77(2) of the Native Administration Ordinance of the Gold Coast Colony which is in substance similar to r 7(a) it is provided:—

   Leave to appeal from the Paramount Chief’s Tribunal shall not be granted unless and until the appellant shall either have paid the costs in such Tribunal or shall have deposited therein or in this court to which the appeal is being taken a sum of money sufficient to satisfy such costs: and such court shall not grant a stay of execution with respect to the said costs.

10. In delivering the judgment of the Board, Lord Atkin said at page 74:—

    It is sufficient to say that the statutory condition upon which alone leave to appeal could be given was not fulfilled. When the appeal came before the Provincial Commissioner this point was taken, and he perhaps not unnaturally treated it as a technicality which he could sweep aside, and ordered that the costs incurred by the respondent, £21. 2s 6d, in the court of first instance should be at once paid to this court, and that was eventually done. He then proceeded to allow the appeal. Unfortunately, as was found by the majority of the Court of Appeal and as their Lordships think, the Provincial Commissioner had no jurisdiction to make any order at all, because no appeal was properly before him. After all, it is to be remembered that all appeals in this country and elsewhere exist merely by statute, and unless the statutory conditions are fulfilled no jurisdiction is given to any court of justice to entertain them.

11. Having stated that their Lordships did not agree with the reasoning of Howes J in dissenting in the Court of Appeal, Lord Atkin said: —

    It is quite true that their Lordships, as every other court, attempt to do substantial justice and to avoid technicalities; but their Lordships, like any other court, are bound by the statute law, and if the statute law says there shall be no jurisdiction in a certain event, and that event has occurred, then it is impossible for their Lordships or for any other court to have jurisdiction.

12. Reference was made to Chong Thian Yin v The Trustees of the Estate of Cheang Kok Sang [1954] MLJ 37 to support the proposition that there is no power to extend time. In that case by r 5(3) of the Titles to Land (Occupation Period) Appeal Rules, 1950, “the appellant shall at the time of filing the record serve one copy thereof on the Commissioner and one copy on each of the interested parties.” The appellants filed the record of appeal on 10 December 1952 and served a copy of the record on the respondents on 27 July 1953. Thomson J as he then was, held that the court has no power to extend the time mentioned in r 5(3); and that the provision in r 5(3) with respect to the term of delivery was obligatory and that is, that it amounted to a condition precedent and as it had not been complied with the appeals had in effect become a nullity.

13. That case refers to a particular rule and is concerned with service. In Tan Ting Kok v Cheong Lep Keen [1969] 1 MLJ 153 where the notice was served on respondents out of time this court, in rejecting an application for extension of time to serve notice, held that the appeal was therefore not properly before the court and could not be proceeded with. If the appellant has complied with the conditions but finds that he really has not sufficient time to prepare the record, there is no reason why he cannot, before the expiry of the time, apply for extension of time. As long as there is merit the court will probably exercise its discretion. By r 8 of the Federal Court (Appeals from the Federal Court) (Transitional) Rules, 1963 the preparation of the record is under the supervision of the court which shall give such directions as the justice of the case may require. But, it was held by the Privy Council in Ratnam v Cumarasamy [1965] 1 MLJ 228 that to justify an extension of time for filing of the record there must be material upon which the court could exercise its discretion, for otherwise a party in breach could have an unqualified right to an extension of time which would defeat the purpose of the rules which was to provide a timetable for the conduct of litigation.

14. However, the point before this court is that the condition in respect of deposit has not been complied with within the stipulated time. In our view, if the statutory condition has not been fulfilled the court has no power to grant an extension of time. Appellant has not convinced us that the Government is exempted from r 7. In fact, the Government has always complied with r 7. Under r 7(a) the maximum period for providing security is three months and the court has no power to extend time. The observations of Jenkins CJ in Kerridge v Lamdin [1950] 1 KB 478, 484 apply aptly to this situation:—

    One reaches a conclusion of this kind with some regret, for it is never very satisfactory that a possibly meritorious claim should be excluded merely because the claimant has inadvertently allowed time to expire; but, where a statute confers a right and stipulates that it must be exercised within a prescribed period, that period must be observed; and, in the absence of any provision in the Act allowing the time limit to be relaxed, failure to observe the prescribed period must inevitably be fatal to the claim.

15. We would therefore refuse this application with costs.

Cases

Ohene Moore v Akesseh Tayee [1935] AC 72; Chong Thian Yin v The Trustees of the Estate of Cheang Kok Sang [1954] MLJ 37; Tan Ting Kok v Cheong Lep Keen [1969] 1 MLJ 153; Ratnam v Cumarasamy [1965] 1 MLJ 228; Kerridge v Lamdin [1950] 1 KB 478

Legislation

Federal Court (Appeals from the Federal Court) (Transitional) Rules, 1963: r. 7

Government Proceedings Ordinance, 1956: s. 18, s. 30.

Representation

Lim Beng Choon (Senior Federal Counsel) for the appellant.

V K Palasuntharam for the respondent.