A right of appeal is statutory; without a statutory basis for appeal from tribunal decisions to the High Court, such appeals are inadmissible.

Introduction

[1] There are two applications before us namely: encls. 2(a) and 5(a). These applications were fixed for hearing on 29 November 2010. Enclosure 2(a) is an application for leave to appeal to this court against the decision of the court of Appeal, while encl. 5(a) is a preliminary objection by the respondent to strike out the application in encl. 2(a).

[2] In this judgment we shall deal with the preliminary objection raised herein. For this purpose, we shall briefly state the facts and the circumstances leading to the application in encl. 5(a). The applicant, at all material time, is the cooperative society registered under s 4 the Co-operative Societies Act 1993 ("the CSA"). The respondent was the Vice President of the co-operative society until his membership was terminated by the applicant. He commenced action against the applicant in the Co-operative Tribunal, established under s 83(1) of the CSA ("the tribunal"), challenging the validity of his termination. The tribunal found that the termination of his membership was made in breach of the rule of natural justice and ordered that the respondent's membership be reinstated. Aggrieved, the applicant filed an appeal against the award of the tribunal to the High court. The High court, had on 2 April 2009, allowed the applicant's appeal and set aside the whole award of the tribunal made on 17 May 2004 with costs. The respondent then appealed to the court of Appeal. The court of Appeal, had on 8 July 2010, unanimously allowed the respondent's appeal. Hence, this application in encl. 2(a) for leave to appeal was made to this court.

Enclosure 5(a)

[3] The preliminary objection raises the issue of whether in an appeal from the tribunal under the CSA, the High court, was exercising its original jurisdiction or its appellate jurisdiction. This is crucial to the case because if the High court was exercising its appellate jurisdiction, the matter should end in the court of Appeal and this court does not have the jurisdiction to hear the application in encl. 2(a). This calls into consideration as to how a right of appeal arises in the present case.

Right Of Appeal

[4] Generally, a right of appeal is conferred by statute. It is a creature of statute. The case of Auto Dunia Sdn Bhd v. Wong Sai Fatt , 1995 MarsdenLR 1235 FC at 485 is authority for this proposition. In that case, Edgar Joseph Jr. J stated that:

It is elementary proposition that this court is a creature of statute and that equally a right of appeal is also a creature of statute, so that unless an aggrieved party can bring himself within the terms of a statutory provision enabling him to appeal, no appeal lies.

(See also Pahang South Union Omnibus Co. Bhd v. The Minister of Labour & Manpower & Anor, [1981] 2 MLJ 199; [1981] CLJ (Rep) 74 ).

[5] Similarly, in Healey v. Ministry of Health [1954] 2 All ER 449 CA at 453, Morris LJ stated that:

There can certainly be no implication of a right of appeal. Had it been desired to provide some machinery or procedure for an appeal from the decision of the Minister, it could have been done. Any such prescribed appeal might or might not have been an appeal to the courts. Questions as to which methods for determining rights are the most desirable raise issues of policy which are for Parliament to decide; but the court cannot invent a right of appeal where none is given. The courts will not usurp an appellate jurisdiction where none is created.

[6] The jurisdiction of the Federal court to determine appeals is governed by art. 128(3) of the Federal Constitution , which reads:

128. Jurisdiction of Federal court.

(3) The jurisdiction of the Federal court to determine appeals from the court of Appeal, a High court or a judge thereof