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2013 MarsdenLR 1424
FEDERAL COURT, PUTRAJAYA
TIO CHEE HING – Appellant
Versus
UNITED OVERSEAS BANK (MALAYSIA) BHD – Respondent
[Civil Application No: 08-288-2011(S)]
The court confirmed that an appeal to the Federal Court requires the High Court's original jurisdiction; jurisdiction under appellate circumstances cannot satisfy Section 96(a) of the CJA.
Headnote:(A) Courts of Judicature Act 1964 - Section 96(a) - Sabah Land Ordinance (Cap 68) - Appeal process - Preliminary objection raised regarding the jurisdiction of the High Court in dealing with appeals from the Director of Land and Survey. Court determined that the High Court was exercising appellate jurisdiction and thus did not meet the requirements of S 96(a), necessitating the striking out of the leave application. (Paras 1, 13, 34)
(B) Jurisdiction - Distinction between original and appellate jurisdiction clarified, with references to relevant legal precedents. The Court found that the impugned decision was not made by the High Court in the exercise of its original jurisdiction but was an appeal decision. (Paras 17, 36)
Facts of the case:
The applicant was a businessman who controlled multiple companies and had several banking facilities with the respondent. The respondent initiated court proceedings for default on loan repayments, leading to judgments favorable to the bank and subsequent appeals by the applicant. (Paras 5-10)
Findings of Court:
The Federal Court upheld the preliminary objection raised by the respondent, determining that the High Court's actions did not fall under its original jurisdiction, thus, enclosures 2(a) and 21(a) were struck out. (Paras 36)
Issues: Whether the High Court acted in its original or appellate jurisdiction in the decision being appealed, affecting the Federal Court's jurisdiction under Section 96(a) of the CJA. (Paras 13, 34)
Ratio Decidendi: The Federal Court emphasized the statutory requirements of S 96(a) of the CJA, affirming that the High Court's decision was appellate in nature, invalidating the leave application due to lack of original jurisdiction. (Paras 13, 34)
Result: Leave applications struck out.
| Table of Content |
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| 1. preliminary leave application and objections (Para 1 , 2 , 3) |
[1] This judgment relates to a preliminary objection raised by the defendant, hereinafter referred to as the respondent, regarding a leave application (encl 2(a)) under s 96(a) of the Courts of Judicature Act 1964 (the CJA) filed by the plaintiff (applicant). The leave application is against the decision of the Court of Appeal handed down on 16 June 2011.
[2] A couple of weeks after the filing of encl 2(a), the applicant filed encl 21(a). Enclosure 21(a) has several prayers inclusive of the prayer for an order that the hearing of encl 2(a) be stayed, that the view of Gopal Sri Ram JCA (as he then was) in Chung Khiaw Bank Ltd v. Tio Chee Hing , delivered on 9 April 2004 be adjudicated as having no effect and that the order of the Court of Appeal delivered through him be set aside, and further that the respondent's counsel be disqualified from representing the respondent in related legal proceedings inclusive of the proceedings in these two enclosures.
[3] The Court fixed these two encls of 2(a) and 21(a) to be heard on 5 July 2012 on which date this panel was confronted by a preliminary objection raised by the respondent. Parties agreed that if the preliminary objection were allowed then encls 21(a) and 2(a) would be dismissed; otherwise the hearing of both applications would be heard on their merits. On that understanding we proceeded to hear the preliminary objection.
