Steve Shim CJ (Sabah & Sarawak):

The Issues

[1] This is an appeal against the decision of the Court of Appeal given on 20 September 2000. Leave to appeal to the Federal Court was granted to the appellant on 17 April 2001 on the following questions:-

(1) Whether the Federal Court has jurisdiction to determine appeals from any judgment, order or decision of the Court of Appeal which did not originate from the High Court save and except from any judgment, order or decision which is whether the Court of Appeal should or should not grant leave to appeal to it.

(2) Whether the appellant who is entitled to appeal to the Court of Appeal has complied with r 18(4)(d) and (7) of the Rules of the of Appeal 1994 when he tenders a sealed copy of the order appealed from before the hearing of the appeal in the Court of Appeal in compliance with the Supreme Court Practice Direction No 1 of 1992.

[2] In my view, the questions concern issues which are inextricably linked. Given the manner the questions are formulated and the focus in the submissions of counsel for the parties concerned, it seems obvious that the questions have to be considered in the same sequence.

The Background Facts

[3] The factual background circumstances have been fully set out in the judgment of the Court of Appeal. Still, it is useful to restate them here but briefly. The respondent had filed an action in the High Court against the appellant who stood as guarantor of an overdraft facility for RM500,000 granted to one Wira Kris Agricultural Services Sdn Bhd, the borrower The appellant filed his defence as well as a summons-in-chambers for an order under O 18 r 19(1)(b) and (c) Rules of the High 1980 (RHC) to strike out the respondents writ and statement of claim. The summons-in-chambers was part-heard by the learned judge but on the date of its continued hearing, the respondents counsel was absent. There was no indication as to why he was absent. Nobody seemed to care. In any case, the Court proceeded with the hearing and thereafter allowed the application in terms thereof. Not surprisingly, the respondent then filed two applications: the first, to set aside the striking out order and the second, to amend the summons-in-chambers. The Court allowed both applications. In allowing the first application, the Court ordered the matter to be reinstated for rehearing. Against that order, the appellant appealed to the Court of Appeal. At the Court of Appeal, counsel for the respondent raised a preliminary objection that the appellant had not complied with r 18(4)(d) and (7) of the Rules of the of Appeal (RCA) as the photocopy of the sealed order appealed against in the Appeal Record was not a certified true copy and as the Supplementary Appeal Record which had incorporated the certified true copy of the order was filed without leave of the Court. After hearing arguments, the Court of Appeal upheld the preliminary objection, holding that the Appeal Record was defective and therefore, there was no proper appeal before it, relying, it seems, on another Court of Appeals decision in Capital Insurance Bhd v. Kasim Mohd Ali, [2000] 1 MLJ 193. The appeal was then struck out with costs.

Section 96 Courts Of Judicature Act 1964 And Article 121(2) Federal Constitution

[4] It seems clear that the first question postulated for our consideration turns on the proper construction to be placed on s 96(a) Courts of Judicature Act 1964 in the context of the particular factual circumstances of this case. From the outset, it seems obvious the appellant was facing an uphill battle in view of the decision of the Federal Court in Capital Insurance Bhd v. Aishah Abdul Manap & Anor, [2000] 4 MLJ 65 which had followed its previous decision in Lam Kong Company Ltd v. Thong Guan Co Pte Ltd, [2000] 4 MLJ 1. Thus, in an attempt to overcome the adversity, counsel for the appellant has submitted that the Federal Courts construction of s 96(a) Courts of Judicature Act in Capital Insurance and Lam Kong was made