Mandatory timelines for filing and service of appeal records must be followed; non-compliance leads to incompetence of appeal.

Amarjeet Singh Serjit Singh J:

Introduction

[1] By a notice of application dated 25 March 2022 (encl 8) the respondent sought for an order that the appellants' appeal is defective and incompetent and for the appeal be struck out on the ground that the record of appeal was not served within the time stipulated and that the record of appeal which was filed in court did not contain the memorandum of appeal as required by O 55 r 4 of the Rules of 2012 (hereinafter, for brevity all rules referred to are in respect of the Rules of 2012).

[2] On 7 July 2022, I allowed the application. This judgment contains the reasons for my decision.

The Key Facts

[3] On 23 November 2021 the Sessions court after a full trial dismissed the appellants' claim and allowed the respondent's counterclaim. It suffices to say that the subject matter of the appeal concerned the rights and obligations of the parties under a tenancy agreement. The appellants were the tenants.

[4] On 6 December 2021 the appellants, within the time and in accordance with O 55 r 2, filed a notice of appeal at the Sessions court against the whole decision of the learned Sessions court Judge. On 6 January 2022 the appellants filed, in accordance with O 55 r 4(1), the record of appeal at the High court. On the same day the record of appeal was sent to the respondent's solicitors by way of email. The hardcopy of the record of appeal was subsequently, on 14 January 2022, left at the office of the respondent's solicitors.

[5] The respondent filed encl 8 under O 92 r 4 contending firstly that the service of the record of appeal on the respondent's solicitors was out of time by 8 days and secondly that the record of appeal filed in court did not contain the memorandum of appeal. Thus, the appeal that was brought was defective and incompetent and therefore an abuse of the process of the court.

[6] The appellants vigorously resisted the application claiming that the record of appeal was served on the respondent's solicitors in accordance with the rules and within the time stipulated and that the failure to include the memorandum in the record of appeal was merely an irregularity and not a nullity. The appellants had elected to proceed on this course of action instead of regularising the irregularities. It was therefore incumbent on this court to determine encl 8 as argued by the parties.

Whether The Record Of Appeal Was Served Within Time?

[7] The time for filing and serving the record of appeal is the same. The service of the record of appeal is provided by O 55 r 4(8) in the following words:

The appellant shall within the time limited for the filing of a record of appeal serve each respondent with a copy of such record of appeal.

[8] The provision is mandatory. The record of appeal must be filed and served within the stipulated time. The principle that one act without the other (filing and serving a notice of appeal) renders the appeal incompetent that was held in Soh Keng Hian v. American International Assurance Co Ltd , [1996] 1 MLJ 191 applies with equal force in respect of the filing and serving of a record of appeal (see Raja Guppal Ramasamy v. Sagaran Pakiam ; 1999 MarsdenLR 1355 ; ).

[9] The time for serving the record of appeal is provided by O 55 r 4(8) which stipulates that the record of appeal must be served on the respondent within one month from the date of filing of notice of appeal. In the instant appeal that date would be 6 January 2022.

[10] The next question is how is the record of appeal to be served on the respondent. O 62 r 1 provides that personal service is not required unless expressly provided for by the rules. The rules are silent on how the record of appeal is to be served. In such a case O 62 r 6(1) is triggered. This rule provides the mode of service in the following words:

The service of any document, not being a document which in accordance with these Rules is required to be served personally, may be effected:

(a) by leaving the document at the proper address