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1995 MarsdenLR 464

COURT OF APPEAL KUALA LUMPUR
YEO YOO TEIK – Appellant
Versus
JEMAAH PENGADILAN SEWA PULAU PINANG & ANOR – Respondent
[Civil Appeal No: P-01-19-95]



Petitioner Advocates:Tan Kah Hoo ,Respondent Advocate: See Liang Teik

JUDGMENT

Siti Norma Yaakob JCA:

[1] In this application for an extension of time to file the record of appeal, the affidavit in support affirmed by the applicant's solicitor states that the applicant had failed to obtain such an extension from the Registrar of this Court as Practice Direction 2/91 had not been complied with. That Practice Direction provides that a request for such an extension must be made to the Registrar within a week of the filing of the notice of appeal.

[2] The applicant filed his notice of appeal on 16 February 1995 and the request for extension should have been made on or before 23 February 1995. This was not done. The applicant's solicitors only made such a request on 16 March 1995 a month after the notice was filed. The only reason given for the delay is that a new clerk had taken over the conduct of the file on 16 March 1995 and it was then discovered that no request for extension had been made under Practice Direction 2/91. A written request was immediately faxed to the Registry the same day.

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[3] Practice Direction 2/91 has been especially framed to regulate the procedure governing the filing of appeal records. Although it does not have the force of law, nonetheless it must be strictly adhered to so that there is a systematic and consistent procedure governing the filing of appeal records in this Court.

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[4] The granting or dismissal of an application for extension of time is very much a discretionary matter but in this instance we were loathe to exercise our discretion in favour of the applicant particularly as no reasonable and acceptable explanation had been given for the 4 weeks delay. The omission on the part of a solicitor to be vigilant can hardly be described as an acceptable explantation.

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[5] We also took note of the fact that the affidavit in support makes no mention of the factual circumstances surrounding the cause of action leading to the order appealed against. It was only before us that Counsel attempted to remedy the deficiency of his affidavit by offering to state that the appeal arose out of a Rent Tribunal matter for which prohibition had not been granted. It would have assisted us if Counsel had at least alluded to some facts or law in his affidavit so as to show at least an arguable case. The failure to do so coupled with the delay of 4 weeks for which no acceptable explanation had been given, left us with no choice but to dismiss the application with costs.

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