Mohamed Dzaiddin FCJ:

This appeal came up for hearing before us on 9 May 2000. The panel was headed by Tan Sri Chong Siew Fai, Hakim Besar Sabah & Sarawak.

At the outset of the proceeding, Encik BS Sidhu, counsel for the respondents raised a preliminary objection in respect of the jurisdiction of this court to hear the appeal. Notice of the preliminary objection was given to the appellant's solicitors by fax on 5 May 2000.

The sole ground of the objection is that the subject matter of the appeal is not from the judgment of the Court of Appeal in respect of any civil cause or matter decided by the High Court in the exercise of its original jurisdiction within the meaning of s. 96(a) of the Courts of Judicature Act 1964 (the Act). It was the contention of the respondents' counsel that the present appeal is in respect of the decision of the Court of Appeal on a preliminary objection taken up on behalf of the respondents before the hearing of the appeal on the merits.

The Record of Appeal established the following facts. On 26 August 1999 when the appeal came up for hearing before the Court of Appeal, counsel for the respondents raised a preliminary objection that the record of appeal was bad in law and ought to be set aside for non-compliance with rr. 18(4)(d) and 18(7) of the Rules of the Court of Appeal 1994. The reasons for non-compliance were that the record did not contain the sealed copy of the judgment of the court below and it did not contain a copy of the order of the court.

After hearing counsel, the Court of Appeal upheld the preliminary objection of the respondents and dismissed the appeal. In its written grounds of judgment delivered on 6 December 1999, the court per Mokhtar Haji Sidin HMR held as follows (AR 438-439):

The issue whether the appeal record should be set aside on the ground of noncompliance with the Rules of the Court of Appeal was not decided by the Federal Court. As such the respondents have the right to raise that issue before us. Further, we are of the view the issue of non-compliance with the Rules is by itself a merit to be decided in this appeal.

It is clear to us that when the appeal record is not filed or defective then there is no appeal before us for which we could consider.

For the above reasons we uphold the preliminary objections by the respondents. We hold that the appeal record and the supplementary appeal record are defective. We also hold that the supplementary appeal record was filed out of time without any leave of the Court. Therefore, there is no proper appeal record before us for us to consider. This appeal is hereby dismissed with costs. Costs awarded is for a single counsel.

Deposit to the respondent towards account of taxed costs.

After hearing submissions of counsel, we reserved our decision on the preliminary objection to a later date to enable Justice Denis Ong, HMR to have a look at the latest decision of the Federal Court on a similar point in the case of Lam Kong Company Ltd V. Thong Guan Co Pte Ltd [2000] 3 CLJ 769. In the meantime, on 3 July 2000, Tan Sri Chong Siew Fai, Hakim Besar Sabah & Sarawak retired and ceased to exercise his function as a judge of this court. However, under s. 78(1) of the Act, the remaining two judges shall, for the purpose of this proceeding, be deemed to be duly constituted notwithstanding the inability of Tan Sri Chong Siew Fai to act as a judge. In addition, under para. (2), the proceeding shall be determined in accordance with the opinion of the majority of the remaining two judges, and if there is no majority the proceeding shall be reheard.

Accordingly, after considering the background facts and the authorities, we agree with counsel for the respondents that the present appeal is from the decision of the Court of Appeal on a preliminary objection taken by the respondents in which the court held that the appeal record and the supplementary appeal record were defective for non-compliance of rr. 18(4)(d) and 18(7) of the C