1. Appeal from a trial decision — Preliminary objection regarding non-compliance with requirements for filing and serving the record of appeal under Order 55 rule 4, Rules of Court 2012. (Para 1 , 4 , 5 , 6 )
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2023 MarsdenLR 906
HIGH COURT (KOTA KINABALU)
FARIDZ GOHIM ABDULLAH, JC
Donnis Jikut (trading under the name and style of PP Engineering) – Plaintiff
Versus
Brothers Construction (Malaysia) Sdn Bhd – Defendant
CIVIL APPEAL NO BKI-12BC-1-8 OF 2023
Advocates:
Chen Wen Jye (Ram Singh Harbans & Co) for the plaintiff.
Song Wei Wan (Korventt & Song) for the defendant.
Chen Wen Jye (Ram Singh Harbans & Co) for the plaintiff.
Song Wei Wan (Korventt & Song) for the defendant.
Compliance with Order 55 rule 4 of the Rules of Court 2012 regarding the preparation, filing, and timely service of the record of appeal is mandatory. Failure to adhere to these timelines or procedural requirements is fatal to the appeal and cannot be remedied by Order 1A.
Headnote:(A) Rules of Court 2012 - Order 55 rule 4 - Mandatory nature of filing and serving the record of appeal - The requirement for an appellant to prepare, file, and serve the record of appeal within one month from the date of filing the notice of appeal is mandatory - Failure to strictly adhere to the time frame prescribed under Order 55 rule 4(1) and rule 4(8) is fatal to the appeal (Paras 40, 47).
(B) Rules of Court 2012 - Order 55 rule 4(4) and 4(5) - Draft index of documents - It is mandatory for the appellant's solicitor to send the draft index to the respondent's solicitor - In the event parties are unable to agree on the inclusion or exclusion of documents, the matter shall be referred to the Registrar of the High Court - Failure to follow this procedure when an objection is raised constitutes a failure to comply with mandatory requirements (Paras 13, 24, 27).
(C) Rules of Court 2012 - Order 1A - Overriding interest of justice - Order 1A cannot be invoked where a party intentionally disregards compliance with the Rules - It is intended to remedy accidental omissions or oversights and cannot supersede mandatory requirements of the Rules (Paras 49, 51).
Facts of the case:
An appellant filed a notice of appeal and subsequently filed a record of appeal. The respondent raised a preliminary objection stating that the record of appeal failed to comply with the mandatory requirements of Order 55 rule 4, specifically regarding the omission of relevant documentary exhibits and the failure to resolve objections to the draft index through the Registrar. Additionally, the record of appeal was served on the respondent approximately five days after the expiration of the one-month deadline from the filing of the notice of appeal, and no application for an extension of time was filed.
Findings of Court:
The court found that the record of appeal was inadequate as it omitted relevant documents such as the opening statement, statement of agreed facts, and issues for trial. The appellant failed to refer the dispute regarding the draft index to the Registrar as required by Order 55 rule 4(5). Furthermore, the service of the record of appeal was out of time, and the lack of an application for an extension of time rendered the procedural infirmity fatal.
Issues: Whether the record of appeal complied with the mandatory requirements of Order 55 rule 4 of the Rules of Court 2012 regarding the draft index, the inclusion of all relevant documents, and the prescribed timeline for service.
Ratio Decidendi: Compliance with the timelines and procedural requirements for the preparation, filing, and service of the record of appeal under Order 55 rule 4 is mandatory. Failure to serve the record within the prescribed time without seeking an extension, and failure to resolve disputes over the record's contents via the Registrar, are fatal defects. Such non-compliance cannot be remedied by Order 1A when the rules were intentionally disregarded.
Result: Preliminary objection allowed; appeal struck out.
Legal Category Hierarchy
Table of Contents
2. Respondent contends the record of appeal is defective due to missing relevant documents and late service — Appellant maintains the record was filed within the prescribed time. (Para 4 , 5 , 8 , 38 )
3. The appellant failed to refer the draft index dispute to the Registrar, omitted mandatory documents, and served the record of appeal beyond the prescribed time limit. (Para 13 , 16 , 22 , 24 , 27 , 28 , 31 , 33 , 40 , 45 )
4. Strict compliance with the mandatory requirements for preparing, filing, and serving the record of appeal under Order 55 rule 4 is essential; non-compliance is fatal. (Para 20 , 24 , 40 , 44 , 47 )
5. Preliminary objection allowed — Appeal struck out. (Para 53 )
6. What is the procedure when parties disagree on the draft index of a record of appeal under Order 55 rule 4?
The appellant must send a draft index to the respondent. If the parties are unable to agree on the inclusion or exclusion of documents, the matter shall be referred to the Registrar of the High Court. (Para 12 , 13 , 26 , 27 )
7. What are the consequences of failing to include all relevant documentary exhibits in the record of appeal?
The appellant is obligated to ensure the record contains all documents the parties consider relevant. An inadequate record that fails to adhere to Order 55 rule 4(1) is considered defective and may be fatal to the appeal. (Para 25 , 31 , 33 )
8. When must the record of appeal be served on the respondent?
The appellant must serve the record of appeal on each respondent within the same time limit prescribed for filing the record, which is one month from the date of filing the notice of appeal. (Para 36 , 37 , 39 , 40 )
9. Can Order 1A of the Rules of Court 2012 be used to remedy non-compliance with mandatory appeal requirements?
Order 1A, which prioritizes justice over technical non-compliance, cannot be invoked where a party intentionally disregards mandatory requirements of the Rules. It does not supersede mandatory requirements. (Para 49 , 51 , 52 )
Faridz Gohim Abdullah JC:
GROUND OF DECISION
(Preliminary objection for non-compliance of Order 55 rule 4 of ROC
Introduction
[1]On the 26th 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 4th 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 20th 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 7th August 2023.
(b)Record of Appeal [Encl. 2] filed on the 30th 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)
