Leave to appeal to the Federal Court can only be sought from final judgments or orders, not from interlocutory decisions of the Court of Appeal.

Chong Siew Fai CJ (Sabah & Sarawak):

Introduction

By a motion dated 24 June 1998 the applicant applied for leave to appeal to the Federal Court against the decision of the Court of Appeal made on 28 May 1998 striking out the appeal of the applicant to the Court of Appeal against the decision of the High Court dated 29 December 1997 on the ground that leave to appeal which, according to the Court of Appeal, was necessary but was not obtained.

The matter was heard before us on 29 March 2000 and 13 April 2000, and the motion was dismissed with costs on a preliminary objection raised by the respondent. It was a majority decision. I had the misfortune of dissenting. We indicated that the grounds of our decisions would be given in due course. I now give my reasons.

The Preliminary Objections

At the commencement of the hearing of the motion, counsel for the respondent raised three preliminary objections and submitted that by reason thereof the motion ought to be dismissed. The three preliminary objections are:

(1) that the Federal Court had no jurisdiction to hear the motion. (For the basis of this contention, see the latter part of this judgment under the heading "Preliminary Objection (1)");

(2) that by reason of Counsel for the applicant orally applying on its behalf before the Court of Appeal for leave to appeal, the applicant was estopped from contending before us that leave to appeal was not necessary; and

(3) that there had been a failure to comply with rule 107(2) of the Rules of the Federal Court 1995 in that the application did not state whether the intended appeal was against the whole or only a part of the judgment or order, and, if only a part, which part of the judgment or order, and the grounds therefor. This ground, however, was only faintly pursued. In any event, I was of the view that the non-compliance would not vitiate the motion.

Effectively, this ground (3) would be thus disposed of.

Background Facts

Before coming to preliminary objections (1) and (2), it would be useful to state briefly the relevant facts and circumstances leading to the motion before us. Pursuant to a sale and purchase agreement dated 28 July 1967 and entered between the parties herein, the applicant agreed to sell to the respondent 26 pieces of land for a total price of S$52,000 which had been paid in full. Disputes arose resulting in the respondent bringing this suit claiming, inter alia, for the transfer to itself the 26 parcels of land and certain consequential orders. On 14 January 1980 the respondent obtained judgment in default of appearance. Pursuant to the default judgment, the senior assistant registrar of the High Court executed the transfers of the 26 pieces of land in favour of the respondent. Since the land titles were not available, the land collector issued fresh land titles. But, for some unknown reason, only 25 titles were issued instead of 26.

On 10 May 1985, the Federal Court, on appeal by the applicant, set aside the default judgment and remitted the case back to the High Court for trial. However, the transfer of the 25 pieces of land to the respondent which had already been effected remained intact.

Parties then amended their pleadings upon which trial before the High Court proceeded and resulted in the learned trial judge granting the respondent, inter alia, the following claims on 29 December 1997:

(a) a declaration that the 25 fresh land titles issued to the respondent were valid;

(b) that the registrar of titles was to indorse the respondent as the registered proprietor on the 25 titles;

(c) that the applicant was to deliver to the respondent the land title relating to the 26th piece of land;

(d) that the applicant was to transfer the 26th piece of land to the respondent;

(e) assessment of damages for the delay on the part of the respondent;

(f) costs.

By a notice of appeal dated 7 J