The amendment to section 68 of the CJA prevents appeals against High Court decisions that allow setting aside of judgments in default.

( Section 68 Prohibits This Appeal And Grounds To Allow Setting Aside Of Judgment In Default)

Kenneth St James JC:

Prelusion

[1] This Judgment deals with the applicability of the recent October 2022 amendments to s 68 of the Courts Of Judicature Act 1964 (CJA).

[2] Section 68 provides that no Appeal can be brought to the Court of Appeal when the High Court allows an Application to set aside a judgment in default.

[3] The Sessions Court entered a judgment in default of appearance (JID) against the Defendant. The Defendant applied to set it aside. The Sessions Court dismissed the Defendant's Application ie the Sessions Court refused to set aside the JID. The Defendant appealed to the High Court. I allowed the Appeal, that is, I reversed the decision of the Sessions Court. Effectively, I allowed the Defendant's Application to set aside the JID.

[4] The issue is - does the Plaintiff have the right to appeal to the Court of Appeal against my decision, when my decision was to effectively allow the Application to set aside the JID?

Section 68 Of The CJA

[5] The amended s 68 of the CJA came into force on 1 October 2022 - the Federal Government Gazette dated 19 September 2022, P.U.(B) 451/2022.

[6] The current sub-section 68(1) reads as follows:

Section 68 . Non-appealable matters

(1) No appeal shall be brought to the Court of Appeal in any of the following cases:

(a) when the amount or value of the subject-matter of the claim (exclusive of interest) is less than two hundred and fifty thousand Ringgit, except with the leave of the Court of Appeal;

(b) where the judgment or order is made by consent of parties;

(c) where the judgment or order relates to costs only, which by law are left to the discretion of the Court, except with the leave of the Court of Appeal;

(d) where, by any written law for the time being in force, the judgment or order of the High Court is expressly declared to be final;

(e) where a High Court dismissed any application for a summary judgment;

(f) where a High Court dismissed any application to strike out any writ or pleading; and

(g) where a High Court allowed any application to set aside a judgment in default.

[Emphasis Added]

[7] If the High Court allows an Application to set aside a JID, there is no longer a right to appeal to the Court of Appeal against the High Court's decision.

[8] It is true that my decision to set aside the JID did not emanate from a High Court suit. It started from the Sessions Court suit. As alluded to earlier, the JID was entered in the Session Court. The Defendant applied to set aside the JID. The Sessions Court refused to set it aside. The Defendant appealed. I heard and allowed the Appeal. And it is against my decision that the Plaintiff is now appealing to the Court of Appeal.

[9] But the Appeal that I heard was an interlocutory appeal. All appeals, particularly interlocutory appeals, are determined by the process of rehearing. In other words, when I heard this setting aside Appeal, it was as if I re-heard the Defendant's Application to set aside the JID that was filed in the Sessions Court.

[10] Order 55 Rule 2 of the Rules Of 2012 (ROC) provides for this principle. Order 55 Rule 2 reads as follows:

O 55. Appeals to High from Subordinate Courts

2. Appeal to be by rehearing on notice (O 55 r 2)

All appeals to the High Court shall be by way of rehearing and shall be brought by giving a notice of appeal within fourteen days from the date of the decision appealed from.

[Emphasis Added]

[11] In United Malayan Banking Corporation Bhd v. Pembinaan KSY Sdn Bhd & Ors , ; ; , the Supreme Court, in the context of an O 14 (summary judgment) appeal, propounded this principle like so (at page 381):

The approach to be taken by An Appellate Court in an O