Leave to appeal under Section 96 requires demonstrating a question of general principle and public advantage, prioritizing judicial discretion while eliminating overly restrictive conditions.

Introduction

[1] This special panel of five judges was set up at the request of some senior members of the Bar to resolve inconsistencies in the judgments of Datuk Syed Kechik bin Syed Mohamed & Anor v. The Board of Trustees of the Sabah Foundation & Ors, 1999 MarsdenLR 1776 (" Syed Kechik") and Joceline Tan Poh Choo & Ors v. v. Muthusamy; [2008] 6 MLJ 621 (" Joceline Tan"). These cases interpreted the provisions of s 96 of the Courts of Judicature Act 1964 ("s 96") relating to application for leave to appeal to the Federal Court from the decisions of the Court of Appeal.

[2] Several senior members of the bar listed in this judgment were invited to address the panel on the issues. It was agreed that this case be the test case. While counsel representing the parties in this leave to appeal submitted on behalf of their clients, other counsel were invited to address the Court as amicus curiae. Once this issue is decided upon, they will then revert to argue on the substantial merit of their respective application. Therefore at this stage the facts of the respective applications are not relevant.

Background

[3] Section 96 (a) reads:

Section 96 Conditions of Appeal

Subject to any rules regulating the proceedings of the Federal Court in respect of appeals from the Court of Appeal, an appeal shall lie from the Court of Appeal to the Federal Court with the leave of the Federal Court:

(a) from any judgment or order of the Court of Appeal in respect of any civil cause or matter decided by the High Court in the exercise of its original jurisdiction involving a question of general principle decided for the first time or a question of importance upon which further argument and decision of the Federal Court would be to public advantage.

History Of Section 96 CJA 1964

[4] In order to understand s 96, perhaps it would be useful to trace the history of the Federal Court and its jurisdiction to what it is today. I shall be relying in substance on the written submission of Dato' Cecil Abraham (now Tan Sri), counsel for the applicant.

[5] Since Merdeka Day, 31 August 1957, the final appeal of superior courts was technically to the Yang Di Pertuan Agong who would then seek the advice of the Judicial Committee of the Privy Council. These appeals in civil matters to the Privy Council were abolished on 1 January 1985 (Appeals to Privy Council on constitutional matters were abolished in 1978 and on criminal matters in 1978). Thereafter the apex Court was the Federal Court which heard appeals direct from the High Courts. The effect was therefore that there was only a single tier of appeal instead of two tiers to the Privy Council in civil matters. At the same time the Federal Court was renamed the Supreme Court.

[6] In response to calls for the creation of an intermediate appellate Court, the Federal Constitution and Courts of Judicature Act 1964 were amended to create the Court of Appeal. An appeal from the High Court goes to the Court of Appeal and then to the Supreme Court, renamed again as the Federal Court being the apex and final appellate Court.

[7] The Court of Appeal was established by the amendment of the Federal Constitution and the Courts of Judicature Act in 1994. After 1995 there was another amendment to the Courts of Judicature Act in 1998 which remains in force until todayThis provision is now the s 96 of the Courts of Judicature Act 1964 which is the subject matter of this judgment.

[8] The explanatory statement to the Courts of Judicature (Amendment) Bill 1998 introducing the amendment