Gunn Chit Tuan SCJ:

Before we heard this appeal, one Nasir Ibrahim (hereinafter referred to as "the respondent") had filed a notice of motion dated 4 May 1992, to move the Court for an order that the appeal of South East Asia Insurance Bhd. (hereinafter referred to as "the appellant") to the Supreme Court, its notice of appeal dated 14 May 1991, and the memorandum of appeal dated 24 June 1991, be all struck out and that the costs of the application and the costs of the appeal be awarded to the respondent. The application was supported by an affidavit of Christie Marie Soosay Nathan, his Counsel, who stated that the appellant's appeal was against the decision of Justice Datuk Shaik Daud given on 8 April 1991, whereby the learned Judge had in chambers allowed an appeal by the respondent against the decision of the Senior Assistant Registrar who had dismissed the respondent's application to strike out the appellant's writ of summons and statement of claim in proceedings known as Kuala Lumpur High Court Civil Suit No. D1-22-2229-89.

After the learned Judge had pronounced his decision in chambers on 8 April 1991, an oral application for further arguments in open Court was made by the Counsel appearing for the appellant. That oral application for further arguments was not allowed as shown by the following two sentences of the relevant notes of proceedings recorded by the learned Judge:

Mahkamah: Rayuan dibenarkan dengan kos. Permohonan untuk membuat hujah lanjut di Mahkamah Terbuka tidak dibenarkan.

A certificate pursuant to O. 56 r. 2(2) of the Rules of the High Court 1980, requiring no further arguments in open Court dated 24 April 1991, was thereafter issued by the learned Judge. A notice of appeal was filed by the appellant on 14 May 1991. But in a letter dated 6 June 1991, the Senior Assistant Registrar of the Supreme Court indicated `inter alia' that the said notice of appeal had been filed out of time. Mr. Nathan stated that the notice of appeal dated 14 May 1991, was filed out of time as the period of one month to file the said notice of appeal commenced from the date the appellant had notice that a certificate requiring no further arguments was to be issued, that is from 8 April 1991, when the learned Judge stated that he would not require further arguments.

Counsel referred us to our recent decision in Mae Bina Sdn. Bhd. v. Chee Kie Chong[1991] 1 CLJ 278 (Rep) in which case we had expressed the view that in the case of an appeal from an order made in chambers, r. 56(a) of the Rules of the Supreme Court, 1980, clearly provides that no appeal shall, except by leave of the full Court, be brought after the expiration of one month from the date when such order was pronounced or after the issue of the certificate of no further arguments whichever is the later or when the appellant first had notice of it. In that case, the appellant through its Counsel knew of the issue of the certificate when it was ordered by the Judge on 29 January 1989. In this case, however, we noticed that the learned Judge on 8 April l991, merely stated that the application for further arguments in open Court was not allowed. The difference is that the learned Judge in the present case did not make an order on 8 April 1991, for the issue of a certificate requiring no further arguments and we are of the view that he could have changed his mind before actually ordering the issue of a certificate, which was in fact not issued until 24 April 1991, when the appellant knew of the issue of the certificate in this case. We therefore considered that our decision in the Mae Bina Sdn. Bhd.'s case [1991] 1 CLJ (Rep) 278 should be distinguished because of the different facts and should not be applied in this case. In any case, even if the appellant was six days out of time in filing its appeal, we sitting as the full Court could and would grant leave for the appeal to be brought. We therefore dismissed the respondent's notice of motion without any costs.

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