Non-compliance with mandatory service of Notice of Appeal within prescribed time renders the appeal incompetent.

JUDGMENT

Kenneth St James JC:

(Application To Strike Out The Appeal)

Prelusion

[1] The Appellant-Plaintiff (P) and the Respondent-Defendant (D) went to trial in the Magistrates Court (MC).

[2] The MC dismissed P's claim. P appeals to the High Court.

[3] In the Appeal proceeding, D filed an Application to strike out the Appeal on the ground that the Appeal is "null and void" because P did not comply with the mandatory O 55 r 3(4) of the Rules Of 2012 (ROC 2012). Order 55 governs post-trial Appeals from the Subordinate Courts to the High Court.

[4] D's Application to strike out the Appeal is encl 4 in this Appeal proceeding.

The Pertinent Chronology

[5] This is the pertinent chronology relating to this Appeal:

24 February 2023 - MC dismissed P's claim

8 March 2023 - P filed Notice Of Appeal (NOA) - within time

10 March 2023 - P's deadline to file and serve the NOA - 14 days from the "date of decision" per O 55 r 2 and O 55 r 3(4) of the ROC 2012

6 April 2023 - P finally served on D the NOA - 27 days out of time

The Law On The Competency Of Appeals

[6] First, the Court Of Appeal-in Gurbachan Singh v. Seagrott & Campbell (No 2), [1962] MLJ 370 - propounded the principle that "an appeal could only be said to be brought when the notice of appeal was served on the respondent".

[7] Second, Gurbachan Singh (supra) was cited with approval by the Federal Court in Tong Lee Hwa & Anor v. Malayan Banking Bhd, [1978] 1 MLJ 257. The Federal Court also held (at MLJ p 258) that "there is a statutory requirement for [the] service of the notice [of appeal]". The Federal Court dismissed an application by the appellant there for an extension of time to serve the notice of appeal out of the prescribed time to serve the notice of appeal, and struck out the appeal.

[8] Third, in Tong Lee Hwa (supra), the Federal Court also reiterated with agreement another judgment of the Federal Court in Tan Ting Kok v. Cheong Lep Keen & Anor, [1969] 1 MLJ 153, and held (at MLJ p 153) that-

...when notice of appeal is filed with the Court, a copy must at the same time be served on the respondents or their solicitors. On this interpretation, the Federal Court was of the opinion that where notice had not been served on the other side within time, the appeal had not been brought before it.

[Emphasis Added]

[9] Fourth, the Court Of Appeal in Majlis Perbadanan Kangar v. Sonati Development Corporation Sdn Bhd, [2007] 1 MLJ 133, cited the three case law authorities above and held that:

[12]...this Court is bound by the decisions in Gurubachan Singh, Tan Ting Kok v. Cheong Lep Keen & Anor, [1969] 1 MLJ 153 and Tong Lee Hwa, so that the result still remains that an appeal is not 'brought' until the notice of appeal is both filed and served. Accordingly, the earlier appeal lodged by the instant appellant had not been properly brought and was utterly incompetent...

[Emphasis Added]

The Pertinent Facts Here

[10] In P's Affidavit In Reply to this encl 4, P admits that the NOA was not served within time. P avers that it was inadvertent. P avers that they only realised that the NOA was not served when they were preparing the Record Of Appeal for filing.

P's Arguments

[11] P submits that this Court can exercise its discretion under O 55 r 13 to allow P to serve the NOA out of time.

[12] P submits that their omission to serve the NOA was inadvertent.

[13] P submits that their omission to serve the NOA on D caused no prejudice to D.

My Findings

Discretion Under Order 55 Rule 13

[14] On the use of the Court's discretion under O 55 r 13 - I set out below the terms of O 55 r 13 for reference:

High Court may direct service on person not served (O 55, r 13)

13. When an appeal is called on for hearing or at any previous time on the application of any person interested, the High Court may direct that the record of appeal, or any notice of cross appeal, be served on any party to the cause or matter who has not been served therewith, or on any person not already a party to the cause or matter, and may, for the purpose o