Non-compliance with procedural requirements for serving notice and filing complete records results in an incompetent appeal.

JUDGMENT

Wong Hok Chong JC:

Introduction

[1] This is the Respondent's application to strike-out the appeal on the grounds that the appeal is fatally defective and that there is no competent appeal before this Court. After hearing the respective parties' submissions, I allowed the Respondent's application and struck out the appeal. These are the grounds for my decision.

Background

[2] The background facts are as follows. This is an appeal against the decision of the learned Sessions Court Judge ("SCJ") after trial delivered on 22 November 2018.

[3] The Notice of Appeal was filed on the date of the decision was delivered (22 November 2018). However, the Notice of Appeal was not served on the Respondent within 14 days thereof. In fact, it was never served on the Respondent at all.

[4] The Appellant's solicitors then proceeded to compile and filed the Record of Appeal without first sending the draft index for the Record of Appeal to the Respondent for their perusal and, if warranted, objection. This led the defective Record of Appeal that omitted documents that should have been included, included documents that should not have been included and was not properly indexed.

[5] Two Supplementary Records of Appeal were subsequently filed to include the documents omitted from the Records of Appeal, but they were filed out of time without leave of Court.

Respondent's Application

[6] The Respondent applied to strike out the appeal on the grounds that the appeal is defective because the Appellant had failed to comply with the material provisions of O 55 (Appeals to high Court from the subordinate Court) Rules of 2012 ("RC"). He says that the non-compliances are fatal and, as a result, there is no competent appeal before this Court.

Application Meritorious

[7] I agree with the Respondent. The reasons are as follows.

Non-Service Of Notice Appeal

[8] First, the Appellant's failure to serve the Notice of Appeal on the Respondent. The Appellant is required to serve the Notice of Appeal within 14 days of the decision pursuant to O 55 rr 2 and 3(4) RC, which provides as follows:

"2. Appeal to be by re-hearing on notice (O 55 r 2)

All appeals to the High Court shall be by way of re-hearing and shall be brought by giving a notice of appeal within fourteen days from the date of the decision appealed from.

3. Notice of appeal against a decision made after trial (O 55 r 3)

...

(4) A duplicate copy of the notice of appeal must be served by the appellant within the time limited for the filing of an appeal on all respondents. "

[9] The failure to comply therewith is fatal and renders the appeal incompetent. In Ketua Penqarah Hasil Dalam Neqeri v. Continental Automotive Instruments (M) Sdn Bhd, the High Court, citing an authority of the Court of Appeal, held as follows:

"[17] Gopal Sri Ram JCA (as he then was) in Soh Keng Hian v. American International Assurance Co Ltd , [1996] 1 MLJ 191 said (at p 194); [1996] 2 CLJ 449; [1996] 1 AMR 860 that:

An appeal is brought to this Court by filing and serving the notice of appeal. The one act without the other renders the appeal incompetent.

[18] An appeal is only brought into existence when the said notice of appeal is served on all the affected parties: Gurbachan Singh v. Seagrott & Campbell (No 2), [1962] 1 MLJ 370; Chin Hua Sawmill Co Sdn Bhd v. Tuan Yusoff Tuan Mohamed; [1974] 1 MLJ 58.

[19] The object of the service is to make sure that all the necessary parties will receive due and proper notice of the case they have to meet: Goh Gin Chye & Anor v. Peck Teck Kian Realty Pte Ltd, [1982] 1 MLJ 117.

[20] Where the notice of appeal is filed within time but not served on the respondent within time, it had been held that the appeal was not properly brought. The appeal could only be said to be brought when the notice of appeal had been served on the respondent. Gurbachan Singh's case."

Draft Index & Record Of Appeal

[10] Second, the Appellant's failure to send the draft index for the Record of Appeal to the Respondent. The Appellant is r