JUDGMENT

Vincent Ng J:

The appellants in this case were the defendants in the Sessions Court. Dissatisfied with the judgment awarded against them in a running down matter, they appealed. On the date of hearing of the appeal, Encik Teoh Ah Joo, the learned counsel for the appellants sought an adjournment on the grounds that the solicitor whom he had retained to do counsel work was unavailable. Encik S. Visvanathan who appeared as counsel for solicitors for the respondents requested that his preliminary objections be heard and if the court was minded to dismiss the said preliminary objections the hearing of the appeal proper could be fixed on another date. I acceded and after submissions, I upheld the preliminary objections raised and struck out the appeal resulting in this appeal against my decision.

The preliminary objections raised relates to the delay in filing both the memorandum of appeal and the record of appeal. Encik Teoh concedes that there has been a delay but disputes the period of delay, details of which I shall deal with later. He also concedes that in his application for extension of time filed on 13 January 2000 (encl. 17), he only prayed for an extension of time for the filing of the record of appeal but not for the filing of the memorandum of appeal as he miscalculated and, thus, overlooked the delay of one day. He, however, submitted that despite all these shortcomings the appellants ought to be allowed an opportunity to be heard as the appeal relates to only the quantum and it had merits. He also cited the cases of Lee Guat Eng v. Tan Lian Kim[1985] 2 MLJ 196, Thomas v. Booty, Edwards & Partners[1964] MLJ 359 and Tong Lee Hwa & Anor v. Malayan Banking Bhd[1978] 1 MLJ 257 in support of his application for an extension of time.

The facts and issues in some of the cited authorities differ materially from the case before me. In Lee Guat Engand Tong Lee Hwathe notice and memorandum of appeal were filed on time but service on the respondent counsel was out of time. The Federal Court in the case of Thomas v. Booty, Edwards & Partnersdealt with the question of a delay in the filing of the defence. There the court held that although there was a delay, the said delay was excusable in view of the fact it was occasioned by the conduct of negotiations between the parties.

The facts in the instant case shows no existence of any prior negotiations. And the delay was not restricted to only in the service of the documents on the respondent counsel but also in the filing of both the documents in the court.

The court record shows that Form 141 had been served on the appellant solicitor's firm by the Alor Setar Sessions Court on 16 November 1998. Endorsed on the said form was the following reminder which for the purpose of our appeal today is relevant:

Nota:

1. ...

2. Menurut A. 49 k. 3A(3) (Kaedah-kaedah Mahkamah Rendah, 1980) tuan adalah dikehendaki dalam masa enam minggu dari tarikh penerimaan Borang 141, menyediakan dan menfailkan Rekod Rayuan di Mahkamah Tinggi.

3. Menurut A. 55 k. 2(1) Kaedah-kaedah Mahkamah Tinggi 1980, tuan adalah dikehendaki dalam masa dua minggu dari tarikh penerimaan Borang 141, menfailkan Memorandum Rayuan di Mahkamah Tinggi.

A simple exercise in basic arithmetic would show that Messrs AJ Teoh & Co. had time until 28 December 1998 to file his appeal record and 30 November 1998 the memorandum of appeal, both at the High Court. This time frame was not adhered to and the appeal record was only filed on 9 January 1999 whereas the memorandum of appeal was filed on 5 December 1998.

I am conscious of the approach that I should take in a preliminary objection on matters of form or procedure. Such preliminary objections should not normally be held to prevail over the merits of the case unless there is blatant infringement of the rules and such infringement has occasioned prejudice to the adverse party or to the due administration of justice. On prejudice to the due administration of justice the view of Lord Woolf, Master