Gopal Sri Ram JCA:

[1] We heard this motion on 24 October 2005 and reserved our decision on it to the following day. We did not grant the orders sought. But we granted an injunction on the usual terms restraining the respondent (whom I shall refer to as the defendant) and/or its servants or agents or howsoever otherwise from dealing with or disposing of its assets, including any monies it may receive hereafter, up to a limit of RM100 million until further order. After we had made the order, learned counsel for the defendant sought a stay of our order because he wishes to test the correctness of our decision before the Federal Court.

(1) In any proceeding pending before the Court of Appeal any direction incidental thereto not involving the decision of the proceeding, any interim order to prevent prejudice to the claims of parties pending the hearing of the proceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered may at any time be made by a Judge of the Court of Appeal.

(2) Every application under subsection (1) shall be deemed to be a proceeding in the Court of Appeal.

(3) Every order made under subsection (1) may, upon application by the aggrieved party made within ten days after the order is served, be affirmed, varied or discharged by the Court.

[3] It is important to notice that s 44(1) uses the words "in any proceeding". It does not say "in any appeal". Parliament has gone on to clarify the position in the second subsection which deems an application under s 44(1) to be a proceeding. And s 3 CJA defines "proceeding" to mean any proceeding whatsoever of a civil or criminal nature and "includes an application at any stage of a proceeding". So, when this Court makes an order under CJA s 44(1) it does not deal with the appeal proper at all. Hence it is a original jurisdiction, albeit a very limited one.

[4] Take this very case. The appeals by both sides have been heard and judgment reserved. All that remains is the giving of the decision and reasons for it. There is therefore no appeal pending before this Court. We are asked to act under s 44 to grant interim protection between now and the date on which our decision will come. That, with respect is an invitation to exercise original jurisdiction and we can exercise it because of s 44.

[5] Since we are not exercising appellate jurisdiction in respect of a matter that originated in the High Court, an appeal to the Federal Court is not available. Similarly, there is no appeal from a decision of this Court refusing leave to appeal. See, Auto Dunia Sdn Bhd v. Wong Sai Fatt & Ors, [1995] 2 MLJ 549. It may have been different if we had been exercising our appellate jurisdiction in respect of a matter that originated in the High Court. In that event an appeal to the Federal Court would, in my respectful view, be competent despite the decisions in Lam Kong Co Ltd v. Thong Guan Co Pte Ltd, [2000] 1 MLJ 129 and Capital Insurance Bhd v. Aishah bte Abdul Manap & Anor; [2000] 4 MLJ 65; [2000] 4 CLJ 1; [2000] 3 AMR 3295. This is because doubt has been cast over these cases by the majority judgments in Megat Najmuddin bin Dato Seri (Dr) Megat Khas v. Bank Bumiputra (M) Bhd; [2002] 1 MLJ 385; [2002] 1 CLJ 645; [2002] 1 AMR 1089. Also, because, in my respectful view, both Lam Kong and Capital Insurance were wrongly decided and the dissent of Chong Siew Fai CJ (Sabah & Sarawak) in Lam Kong is c