Amendments sought post-trial must comply with procedural rules and cannot reopen previously settled matters.

Siti Norma Yaakob JCA:

Proceedings in the four consolidated appeals before us stem from the judgments delivered in two civil suits that were tried jointly in the court below. The two civil suits are Civil Suits 351/79 and 352/79 and two separate judgments from each suit dated 6 September 1999, and 10 September 1999, were entered against the appellants against which four separate notices of appeal were filed by them, two from Civil Suit 351/79 and two from Civil Suit 352/79. The respondents also filed two identical notices of cross-appeal against the judgment dated 6 September 1999, and two other identical notices of cross-appeal in respect of an order dated 7 April 1999, concerning the dismissal of their application to amend their pleadings in Civil Suit 352/79 to join Zara Sdn. Bhd. ("Zara") as the third defendant in that suit.

The parties have also filed between them seven separate notices of motion and at the outset of the trial we dealt with these applications first before hearing submissions on the merits of the appeals and cross appeals.

Two of such applications dated 2 February 2000, and 7 February 2000, were filed by the appellants and they seek to include a missing document at Part C, vol. 7 as p. 1965A, in the records of appeal as well as the certified true copies of the orders appealed against dated 6 September 1999, and 10 September 1999. Since the respondents had no objection to both applications we had allowed them on terms of the respective application.

There were also two identical applications both dated 25 April 2000, filed by the respondents to adduce fresh evidence by the admission of three affidavits affirmed by the appellants' witness, one Syed Salem Albukhary (SSA). Before us, Mr. Martin Mann, QC leading counsel for the respondents submitted that both applications have since become unnecessary and under those circumstances we had dismissed them with costs.

That left us with three more applications, all filed by the respondents and which prove to be very contentious. The first of such remaining applications dated 15 December 1999, is for leave to file a notice of appeal against the decision of the High Court dated 7 April 1999, disallowing the respondents' application for leave to amend their re-amended statement of claim dated 21 October 1998, in C.S. 352/79 to:

(1) add a new cause of action against the first appellant, Datuk Syed Kechik (DSK) and

(2) join Zara as a third defendant.

The first objection taken was on the form and nature of the application to amend in the court below as on this hinges the time factor when a dissatisfied party can appeal. The respondents maintain that despite the format used for the application and the proceedings that ensued, the application was intended to be argued in open court and form part of the proceedings in the trial as the application was made in the course of the trial. As such the application was not interlocutory in nature, it formed part and parcel of the trial and the time to appeal was after judgment had been delivered on 6 September 1999, and not after it was dismissed on 7 April 1999. Under those circumstances the respondents contend that no extension of time or leave to appeal is necessary based on the authority of Laird v. Briggs [1881] 16 Ch. D 663.

It is common ground that the application dated 5 April 1999, was filed during a break in the trial as between the period of 5 March 1999, to 8 April 1999, there was no sitting as the learned trial judge had to attend to the hearing of other matters of which he had been committed to and it also enabled leading counsel to attend to prior engagements outside Malaysia. The break too appeared to have suited both sides as it gave them the opportunity to prepare their closing submissions.

On 7 April 1999, a day before the resumption of the trial, the learned trial judge heard the application to amend. W