Arifin Zakaria FCJ:

Background Facts

[1] The appellant (petitioner in the court below and in this judgment will also be referred to as "the petitioner") stood as a candidate for Barisan Nasional in the recent general election, held on 8 March 2008 for the State Legislative Assembly constituency N. 22, Manir, Terengganu. He lost to the Parti Islam Se Malaysia candidate, the respondent in the present appeal, by a majority of 406 votes. Dissatisfied with the said election result he filed an election petition at the High court at Kuala Terengganu seeking the following reliefs:

1. A declaration that the election for State Assembly Seat N. 22 Manir, Terengganu, held on 8 March 2008 be declared invalid and void;

2. For a declaration that the respondent was not duly elected or ought not to have been returned at such election;

3. A determination and direction pursuant to s 36 of the Election Offences Act 1954 ("the Act") ;

4. Further other reliefs as the court deems fit;

5. Costs of the petition.

[2] At the hearing of the petition learned counsel for the respondent raised five grounds as preliminary objection. Having heard submissions of parties the learned election judge, upheld the preliminary objection and ordered that the petition be struck out with costs.

[3] This is the appeal by the petitioner against the decision of the learned election judge. We first heard the appeal on 13 June 2008. At that hearing learned counsel for the respondent, En. Saifudin bin Othman, raised a preliminary objection against this appeal on the ground that, since the decision of the learned election judge appealed against in this case relates to an interlocutory matter, it therefore follows that the decision is final and not appealable. He relied primarily on the provision of s 33(4) of the Act and the decision of this court in Gan Joon Zin v. Fong Kui Lun & Ors; [2004] 4 CLJ 729; [2004] 5 AMR 750 in support of his contention. In view of the seriousness of the matter at hand and the effect it may have on similar cases pending before the courts throughout the country we directed the parties to take a closer look at the relevant provisions of the Act and in the circumstances we adjourned the hearing to 19 June 2008 for further arguments.

The Issues

[4] The principal issue arising from the preliminary objection is whether an appeal would lie against the decision of the learned election judge in ordering the petition to be struck out based on the preliminary objection raised by the respondent. This issue had come for consideration of this court in the case of Gan Joon Zin (supra) which ruled that no appeal would lie to this court in respect of interlocutory orders including orders striking out of petition which in fact finally disposes off the petition without hearing the merit.

[5] Learned counsel for the petitioner urged upon us to reconsider the correctness of that decision in so far as it relates to striking out order made by the election judge because of the consequence that flows from such an order. He contends that it could not have been the intention of Parliament to shut out the petitioner from appealing against such an order.

[6] Tuan Hj. Mohd. Arif, learned counsel for the respondent in his reply contends that it is trite law that appeal is a creature of statute and the provisions of the Act must be strictly construed. If the Act does not provide for the right of appeal to this court, as in the present case, it is not for this court to do otherwise no matter how grave the consequence may be. That was in fact the view expressed in Gan Joon Zin by this court.

[7] We agree with the respondent that an appeal is maintainable where statute and rules of procedure provide for it. Appeal is a right created by statute and the courts cannot create or take away such a right. As was held in Auto Dunia Sdn. Bhd. v. Wong Sai Fatt & Ors, [1995] 2 MLJ 549 , unless an aggrieved party can bring himself within the terms of the statutory provision enabling him to appeal