Faridz Gohim Abdullah JC:

GROUND OF DECISION

(Preliminary objection for non-compliance of Order 55 rule 4 of ROC

Introduction

[1]On the 26^th September 2023, I delivered my brief ruling pertaining to the preliminary objection by the Respondents solicitor against the Appellants Record of Appeal for non compliance with Order 55 rule 4 of the Rules of Court 2012

[2]Dissatisfied with my decision, the Appellant filed a notice of appeal dated the 4^th October 2023 against the whole of my decision.

[3]I now give my grounds for the said decision.

Background of preliminary objection

[4]On the 20^th September 2023, the Respondents solicitor raised a preliminary objection pertaining to the Record of Appeal that was filed and served by the Appellants solicitor.

[5]The preliminary objection was premised on the grounds that the Record of Appeal filed by the Appellants solicitor failed to comply with the mandatory requirements stipulated under Order 55 rule 4(1)(h) and rule 4(8) of the Rules of Court 2012ROC) and ought to be struck out.

The Appellants documents

[6]The following are the documents that were filed by the Appellants solicitor pertaining to his appeal against the decision of the learned Sessions Court Judge of Kota Kinabalu.

(a)Notice of Appeal [Encl. 1] filed on the 7^th August 2023.

(b)Record of Appeal [Encl. 2] filed on the 30^th August 2023 consisting Volume 1 to Volume 6.

The law on filing an appeal

[7]The law pertaining to an appeal from a decision after trial is stipulated in Order 55 rule 4 of the ROC 2012

Record of appeal (O. 55 r.4)

(1)In the case of an appeal from a decision after trial, the appellant shall within one month from the date of filing of the notice of appeal prepare and file the requisite number of copies of the record of appeal in the High Court and the record shall contain copies of-

Provided that the record of appeal shall be filed notwithstanding that the notes of evidence and/or grounds of judgement are not ready;

(a)the relevant pleadings;

(b)the notes of evidence, including witness statements, if available, recorded wholly or partly by mechanical means;

(c)the grounds of judgement, if available;

(d)the memorandum of appeal;

(e)the decision, order or judgment;

(f)a duplicate copy of the notice of appeal;

(g)a duplicate copy of the notice of cross appeal, if any;

(h)all such documentary exhibits and other documents the parties shall consider relevant for the purpose of the appeal.

(2)

(3)

(4)A draft index of the documents to be included in the record of appeal shall be sent by the solicitors for the appellant to the solicitors for the respondent who or, if more than one, any one of whom may, within forty-eight hours, object to the inclusion or exclusion of any document.

(5)In the event of the parties being unable to agree, the matter shall be referred to the Registrar of the High Court who may require the parties to attend before a Judge of the High Court.

(6)

(7)

(8)The appellant shall within the time limited for the filing of a record of appeal serve each respondent with a copy of such record of appeal.

[8]Based on the oral submission and argument by both parties, the issues for determination by this Court can be summarized as follows:

(a)whether the draft index of documents to be included in the Record of Appeal comply with Order 55 rule 4 (1)(h) of ROC 2012

(b)That the Record of Appeal (ROA) does not include all the relevant documentary exhibits and other documents such as the plaintiffs opening statement, the Statement of Agreed Facts, Issues for trial, documentary exhibits tendered during the trial.

(c)That the ROA was not served on the Respondents solicitor within the time limit for the serving of a copy of such record of appeal on the Respondents solicitor.

[9]I shall now deal with each and every of the above issues accordingly.

[10]On issue (a) that the draft index of documents to be included in the Record of Appeal shall comply with Order 55 rule 4 (1)(h) of ROC 2012

For ease of reference, Order 55 rule 4 (1)(h) is reproduced below:

(1)