Sii

- vs -

Hung

Judgment

AS Tee, J

1. This is an appeal by the appellant against the decision of the learned Sessions Court Judge whereby the appellant's application for summary judgment was dismissed with costs to be taxed unless agreed.

2. On August 9, 1999 the learned counsel for the respondent indicated to the court and the learned counsel for the appellant that there will be a preliminary objection on the same matter as in Civil Appeal No 11-2-99.

   The learned counsel for the appellant submitted that there is a procedure that if there is any preliminary objection, notice in writing must be served on the other side.

3. This case was adjourned to September 13, 1999 for hearing as the learned counsel for the appellant has requested for an adjournment in Civil Appeal No 11-2-99.

4. On September 13, 1999 the learned counsel for the respondent stated that he was raising a preliminary objection. On August 9, 1999 he had indicated to the court and the learned counsel for the appellant that he will be raising a similar preliminary objection as in the case previously, i.e. Civil Appeal No 11-2-99. He further contended that on August 10, 1999 he sent a letter to the appellant's solicitors to inform the appellant that during the next hearing on September 13, 1999 the respondent would be raising a preliminary objection that the record of appeal is  incomplete and defective for failure to include the sealed judgment.

   He submitted that even if no notice was given, if the court has no jurisdiction because the appeal is incompetent that is the end of the matter.

5. His objection dwells on the failure of the appellant to include the decision appealed from in the appeal record. At pp 49 to 50 of the appeal record only a draft order was incorporated. It was neither signed by or approved by the advocates for the respondent nor by the Registrar of the Subordinate Courts. This is in breach of Order 49 r 6(3)(d) of the Subordinate Courts Rules 1980 ("the SCR"). A draft order or judgment is not the decision appealed from as envisaged in Order 49 r 6(3)(d) of the SCR. In support the following cases were cited:

   1. Teoh Soon Kok v MBf Finance Bhd [1996] 2 AMR 1838.

   2. Mat Yassin Dollah v lbrahim Hussin [1997] 2 MLJ 681.

   3. Wong Sing Ha v Yii Ching King - Sibu High Court Civil Appeal No 20-12-13 of 1996 (unreported).

6. The learned counsel for the appellant submitted that the only thing for this court to decide is whether the objection raised by the respondent on August 9, 1999 was good or bad when there was no written notice being given to the appellant in view of the authorities cited by him in the submission of Civil Appeal No 11-2-99.

   He denied receiving the letter dated August 10, 1999 pertaining to the preliminary objection.

   He adopted his submissions as given in Civil Appeal No 11-2-99.

7. I shall now deal with the preliminary objection. For this purpose I would accept the contention of the appellant that he did not receive the written notice given on August 10, 1999. The preliminary objection was only raised during the date of hearing itself on August 9, 1999. Although the hearing was adjourned to September 13, 1999 and the learned counsel for the respondent on August 9, 1999 has indicated to the court and the learned counsel for the appellant that he will be raising a preliminary objection at the next hearing, I would treat this as not being notice given. In other words, I would treat that the preliminary objection was only raised at the hearing on September 13, 1999.

8. In Datuk Bandar Kuala Lumpur v Seman Amat [1996] 2 AMR 2584 his Lordship Abdul Kadir Sulaiman J at p 2588 said:-

   Before the formal hearing of the three appeals, the learned counsel for the respondents, En Karpal Singh raised a preliminary objection on a point of law in that as the various appeals of the appellants were filed in the registry of the Subordinate Court the appeals are not properly brought before the High Court being in contravention of Order 49 r 6 of the SCR. It is contended that the notices of appeal were not filed in the proper registry as required by the said r 6. Rather unfortunate, however, no prior notice of the intention to raise the preliminary objection was given by the respondents to the appellants except for the indication given to their learned counsel orally just before the commencement of the hearing of the appeals.

   And at p 2589 he said:-

   In opposition, the learned counsel for the appellants cited Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394. In that case the sole question for decision of the court concerned the meaning and ambit of the phrase "entered for hearing" in Order 53 r 2 of the Rules of the High Court 1980 (the RHC). It arose on a preliminary objection taken by the respondent without any prior notice given to an application by the applicant for an order of certiorari. By way of observation his Lordship at p 396 said: Before concluding, I have an observation to make, and it is this: Counsel for the respondents when he raised the preliminary objection herein, did so without any prior notice to his opponent. This was unfortunate and I would echo the practice advocated by Thomson, CJ in Gurbachan Singh v Seagrott & Campbell that when points such as this are proposed to be taken, notice in writing of an intention to do so should be given at the earliest possible moment to the other side who otherwise might be taken by surprise. However, in that case, even though no prior notice was given, the learned Judge heard the preliminary objection of the respondent though for lack of merit he dismissed the objection raised. In Gurbachan Singh v Seagrott & Campbell (No 2) [1962] 28 MLJ 370, the respondents upon the service of the notice of appeal by the appellant out of the time period prescribed, issued "Notice of Preliminary Objection" in writing to the appellant that on the hearing of the appeal which was to take place in about 3 1/2 months from then, he would apply for the appeal to be dismissed on the grounds that they were not served with the notice of appeal within the time limited for appeal whereby the appellant was in breach of the then Order 58 r 1A(1), Order 58 r 2 and Order 58 r 15 of the RSC 1957. The then Court of Appeal allowed the preliminary objection and the appeal by the appellant was struck out with costs to the respondent. At p 371 Thomson CJ has this to say: Before departing from the case I should observe that the procedure followed by the respondents, that is to say giving the other side notice at the earliest possible moment and then dealing with the matter when the appeal comes on for hearing seems to be the course that was followed and certainly not disapproved of in the case of In re Helsby.

   And at p 2589 he said:

   In that light I would agree with the submissions made by En Karpal Singh, the learned counsel for the respondents, that the observations made in the two cases cited are merely obiter, as the two courts were deciding on the issue raised in the two respective preliminary issues. Furthermore, the learned Judge in Jasabena merely expressed that it was unfortunate that the respondent in that case had raised the objection without any prior notice. In my view, it is a good practice for a party intending to raise any preliminary objection to do so by giving prior notice in writing to avoid any further argument as to whether in fact any notice at all was ever given and that the notice if given must be with prior notice so that the other party would not be taken by surprise. The opponent must be given the opportunity to prepare himself to answer to the objection to be raised. This objective is achieved by him being given ample notice of the nature of the objection to be raised. In this present case, though an eleventh hour oral notice was given, the learned counsel for the respondent is not pressing for an immediate reply to the objection to be raised. He is prepared to allow time for the learned counsel for the appellant to do so which the learned counsel, however, did not avail the opportunity given but instead gave his reply straightaway. Therefore, he cannot any more say that he was taken by surprise by the eleventh hour oral notice of the preliminary objection to be made. It is also my view that it is not the law that the absence of prior notice will totally shut the door for the intended objector from raising the objection. The principle behind the need for the prior notice is merely to avoid surprise. But if by the conduct of the opponent it can be inferred that no surprise to him has been caused as in this present case, the objector should be allowed to raise the intended preliminary objection even without any notice as was done in Jasabena's case itself. Any preliminary objection raised may go to the root of the matter such as illegality in the proceedings taken. If it is so, the court has to accept the fact and cannot ignore the illegality as it goes to the very jurisdiction of the court in the proceedings. The court cannot condone illegality simply because no prior notice is given to raise the preliminary objection. Having heard the arguments by the two parties, I allowed the learned counsel for the respondent to raise the preliminary objection albeit only a short and oral notice was given to the appellants.

   I am in agreement with his Lordship Abdul Kadir Sulaiman as aforesaid.

9. It is also my view that it is not the law that the absence of prior notice will totally shut the door for the intended objector from raising the objection. I am of the view that a preliminary objection on a point of law can be raised even though no prior notice of preliminary objection is given as any preliminary objection raised may go to the root of the matter such as illegality in the proceedings taken. If it is so, the court has to accept the fact and cannot ignore the illegality as it goes to the very jurisdiction of the court in the proceedings. The court cannot condone illegality simply because no prior notice is given to raise the preliminary objection.

10. Having heard the arguments by the two parties, I allow the learned counsel for the respondent to raise the preliminary objection albeit only a short and oral notice was given to the appellant.

11. Rule 18(4) of the Rules of the Court of Appeal 1994 has no application to our case.

12. In the record of appeal (at pp 49 to 50) there is an undated draft order of the learned Sessions Court Judge. In the record of appeal there is no sealed copy of the judgment. I am of the view that the word "decision" in Order 49 r 6(3)(d) of the SCR could only mean the sealed judgment that is to say, a judgment that is drawn and entered in accordance with Order 29 rr 9 and 10 of the SCR (see Teoh Soon Kok v MBf Finance Bhd [1996] 2 AMR 1838).

13. In Mat Yassin Dollah v lbrahim Hussin [1997] 2 MLJ 681 His Lordship Nik Hashim JC at p 684 said:-

    Order 49 r 3A(1) is mandatory in its terms by reason of the word 'shall' in the rule (see Datuk Bandar Kuala Lumpur v Seman Amat [1996] 3 CLJ 263). Accordingly, strict compliance with its provision is called for and failure to enclose any one of the items in the record as required by the rule, in my view, will render the appeal record defective. It has been said time and again that rules of court must be obeyed (Ratnam v Cumarasamy [1965] 1 MLJ 228) and must be meticulously and faithfully complied with (per Low Hop Bing JC (as he then was) in S Ravi G Suppiah v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia [1995] 2 CLJ 152 at p 154). Failure to comply with them will lead to chaos in the conduct of litigation (Sykt Telekorn Malaysia Bhd v Business Chinese Directory Sdn Bhd [1994] 2 MLJ 420 at p 423, per Eusoff Chin SCJ (as he then was)). Thus, without the decision and following Teoh Soon Kok's case, I hold that the appeal record in the present case was not properly before the court. The record suffered from a serious defect for not being in compliance with the strict rules of Order 49 r 3A(1)(d) of the SCR.

14. I am of the view that Order 49 r 6(3) of the SCR is mandatory in its terms by reason of the word 'shall' in the rule. So it is a mandatory requirement for the record of appeal to contain the decision appealed from.

15. It is trite law that an appeal under Order 49 r 6(3) of the SCR is by way of rehearing before the Judge-in-chambers. However, the Judge-in-chambers can only hear the appeal by way of rehearing if the record of appeal has complied with the strict rules of Order 49 r 6(3) of the SCR.

16. In the result, the record of appeal without the decision is incomplete. I hold that the record of appeal in the present case was not properly before the court and this court has no jurisdiction to hear this appeal.

17. For the reasons stated, I uphold the preliminary objection and I dismissed the appeal with costs to be taxed unless agreed.

Cases

Datuk Bandar Kuala Lumpur v Seman Amat [1996] 2 AMR 2584; Mat Yassin Dollah v Ibrahim Hussin [1997] 2 MLJ 681; Teoh Soon Kok t/a TSK Supplies Trading v MB f Finance Bhd [1996] 2 AMR 1838; Wong Sing Ha @ Wong Ha Hing (trading as Ying Nang Company) v Yii Ching King (trading as Soon Kwong Shipping Company) - Sibu High Court Civil Appeal No 20-12-13 of 1996 (unreported)

Legislations

Rules of the Court of Appeal 1994: R. 18(4)

Subordinate Courts Rules 1980: Ord. 29 rr 9, 10, Ord. 49 r 6(3)(d)

Representation

John Shek (John Shek & Co) for Appellant

Wong Ho Leng (Wong Ho Leng) for Respondent

Notes:

This decision is also reported at [2000] 2 AMR 2697