The failure to properly serve the notice of appeal within the stipulated one-month timeframe results in an incompetent appeal that cannot be cured post-factum.

Tengku Baharudin Shah JCA:

[1] We upheld the preliminary objection raised by the respondent and consequently dismissed this appeal with costs. We also ordered the deposit to be paid to the respondent towards the account of costs.

Preliminary Objection

[2] The respondent objected to the appeal for being incompetent on the ground that the notice of appeal was served on his former solicitors after the expiration of the time specified under rr. 6 and 12 of the Rules of the of Appeal 1994 (the RCA) . For ease of reference the rules are as follows:

6. Service of notice of appeal.

Notice of appeal shall be served on all parties directly affected by the appeal or their solicitors respectively within the time limited for the filing of the notice of appeal. It shall not be necessary to serve parties not so affected.

12. Time limit for appeal.

No appeal shall, except by leave of the Court, be brought after the expiration of one month:

(a) in the case of an appeal from an order in Chambers, from the date when such order was pronounced at the hearing;

(b) in the case of an appeal against the refusal of an application, from the date of such refusal;

(c) In all other cases, from the date on which the judgment or order appealed against was pronounced.

Submission

[3] Learned counsel for the respondent referred us to the notice of appeal dated 12 October 2001 filed on the same day against the decision of the High Court made on 13 September 2001. The said notice of appeal was only served on the respondent's former solicitors on 15 October 2001. He submitted that the notice of appeal was filed on the last date for appeal but served out of time because the RCA requires both filing and service to be affected within one month from the date on which the order was pronounced.

[4] The appellant contended that service was effected within time. He relied on the case of Soh Keng Hian v. American International Assurance Co Ltd , [1996] 1 MLJ 191 CA which apparently computed the last date for filing an appeal against the decision made on 3 September 1994 was 4 October 1994 and not 3 October 1994. He submitted that service of his notice of appeal on Monday 15 October 2001 complied with the law as the last day for doing so (14 October 2001) was a Sunday.

[5] In reply, learned counsel for the respondent argued that in computing time by calendar months, the time had to be reckoned by looking at the calendar and not by counting the days. So the one month period commenced from the day the order was pronounced to the day numerically corresponding to that day in the following month, less one (see Jeow Fong Mei v. Chong Mee Yoke , [1996] 1 MLJ 387 CA) . Therefore, in this case, the decision being made on 13 September 2001, the final day for service was 12 October 2001 which was a Friday. He stressed that under r. 12(c) of the RCA time starts to run from the date on which the judgment or order appealed against was pronounced.

Finding

[6] In construing the provision relating to appeals, one must not ignore the provision under which it is commenced. This is found in r. 5 of the RCA which relevant part reads:

5. Appeal to be by re-hearing on notice.

(1) Appeals to the Court shall be by way of re-hearing and shall be brought by giving notice of appeal.

Rule 5(1) must be read with rr. 6 and 12 . In our view, when read together, the law is that an appeal is not 'brought' until the notice of appeal is both filed and served. The one act without the other renders the appeal incompetent (see Gurbachan Singh v. Seagrott & Campbell ; Tan Ting Kok v. Cheong Lep Keen & Anor ; and Tong Lee Hwa & Anor v. Malayan Banking Bhd ). The rules of Court therein considered are similar if not in pari materia with the aforesaid present rules of the RCA. This Court is therefore bound by these decisions which are pertinent to t