JUDGMENTBY: EDGAR JOSEPH JR FCJ (DELIVERING THE JUDGMENT OF THE COURT), GOPAL SRI RAM JCA, MOHAMED DZAIDDIN FCJ FCJ

EDGAR JOSEPH JR FCJ (DELIVERING THE JUDGMENT OF THE COURT) When this appeal was called on for hearing, counsel for the respondent had raised a preliminary objection as to the competency of the appeal. It was contended that this appeal did not lie to the Federal Court, but to the Court of Appeal.

More particularly, it was the contention of counsel for the respondent, that the judgment under appeal was a judgment of the High Court pronounced on 7 June 1994, in respect of an Originating Summons No 320-93/11, issued on 7 June 1994, notice of appeal, having been filed and served on 24 June 1994, and so, the material date for purposes of determining the challenge to jurisdiction was the date of filing the notice of appeal, which, incidentally was also the date of the creation of the Court of Appeal, and so the appeal lay not to the Federal Court but to the Court of Appeal and vested in the latter court.

I think that it would not be an unfair summary of the argument advanced by counsel for the respondent in support of the preliminary objection to say that its effect was this: although the decision of the High Court was delivered on 7 June 1994, so that by reason of r 54 of the then applicable Rules of the Supreme Court 1980, the appellant had one month from that date to bring his appeal to the Supreme Court, he had in fact done so on 24 June 1994, which, as it happened, was the very day on which Parliament had, by the Courts of Judicature (Amendment) Act 1994 (Act A886) (the Amending Act of 1994), which had come into operation, not merely renamed our apex court, the Supreme Court, as the Federal Court, but had also created the Court of Appeal -- an intermediate Court of Appeal.

It was accordingly contended that the court invested with the jurisdiction to hear and determine this appeal was, not this court, but the Court of Appeal, with the result that this appeal was incompetent and would have to be dismissed in limine.

In answer to the preliminary objection, counsel for the appellant contended that the right of appeal is a matter of substance and not a mere matter of practice and procedure, and that such a right accrues to the litigant and vests in him as from the date of commencement of the action or lis, and although it may be actually exercised when the judgment appealed against is pronounced, such right is to be determined having regard to the law applicable at the date of the institution of the action or lis and not by the law applicable at the date of the decision or the date of filing of the appeal. It was further submitted that this vested right of appeal could only be taken away or transferred to a new tribunal by subsequent legislation if it so provides expressly or by necessary intendment but not otherwise.

In support, a number of cases were cited, including the leading Australian Privy Council case of Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 , which has been applied locally (see eg Teo Cheng Leong v PP [1970] 2 MLJ 275 ; Lee Chow Meng v PP [1978] 2 MLJ 36 ; Phang Chin Hock v PP (No 2) [1980] 1 MLJ 213 ; PP v Hun Peng Khai & Ors [1984] 2 MLJ 318 , in India, by the Indian Supreme Court (see eg KC Dora v Annamanaidu [1974] 1 SCC 567 ), and in Canada (see eg Doran v Jewel 49 SCR 88 and AG & Ors v Murray [1968] 70 DLR (2d) 52 ; Province of New Brunswick v Budovitch 1 NBR (2d) 661 ).

In the Colonial Sugar Refining Co case, an application had been made by the respondent that the appeal from the judgment of the Supreme Court of Queensland be dismissed on the ground that the right of appeal to His Majesty in Council given by the order in council dated 30 June 1860, under which the leave was granted, had been taken away by s 39 of the Australian Commonwealth Judiciary Act 1903, and that the only appeal from a decision of the Supreme Court of Queensland thereafter lay to the High Court of

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