JUDGMENT

Heliliah Mohd Yusof JCA:

[1] Enclosure 4(a) was a notice of motion which was filed by the appellant/applicant and contained two prayers. The first (prayer (a)) sought leave for extension of time to file and serve the record of appeal. This was granted without any difficulty or objection from the respondent (that is in respect of both the appeal and the motion itself). Hereafter both parties are to be referred as the appellant and respondent.

[2] It is the second prayer (prayer (b)) which has raised issues which warrant written grounds being furnished. In prayer No. 2 the appellant was seeking that the Index of the Appeal Record and the exhibits thereto are to be determined by the Court of Appeal.

[3] Due to the unusual nature of the application it is very necessary to divulge the background leading to this application.

[4] It was explained, before us, when the matter was being heard that previously on 29 January 2008 the same application had also been heard by another panel of the Court of Appeal. It was determined then that pursuant to r. 18(6) of the Rules of the of Appeal 1994 the matter should be determined by the Registrar of the High Court as specifically provided therein. Rule 18(6) of the Rules of the of Appeal 1994 (COA Rules 1994) states:

18(6) A draft index of the documents to be included in the record of appeal shall be sent by the appellant's solicitors to the solicitors for the respondent who or (if more than one) any of whom may within forty-eight hours object to the inclusion or exclusion of any document. 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 said Court. The Registrar of the High Court as well as the parties shall endeavour to exclude from the record all documents (more particularly such as are merely formal) that are not relevant to the subject matter of the appeal taking special care to avoid the duplication of documents and unnecessary repetition of headings and other merely formal parts of documents. Where in the course of preparation of the record one party objects to the inclusion of a document on the ground that it is unnecessary or irrelevant and the other party nevertheless insists on its being included, the record, as finally printed or typed shall, with a view to the subsequent adjustment of the costs of and incidental to such documents, indicate, in the index of papers, or otherwise, the fact that, and the party by whom, the inclusion of the document was objected to. (emphasis added)

[5] The matter has been argued before the Registrar of the High Court on 3 April 2008 who by a decision delivered on 9 April 2008 ordered that all exhibits in the respondent's affidavit in support must be included. The respondent's affidavit in support in the context of the appellant's case refers to the affidavit in support filed by the respondent dated 4 January 2007 in furtherance of the respondent's application to strike out dated 5 January 2007. The application to strike out was made in response to a defamatory action instituted by the appellant against the respondent in Civil Suit No. S4-23-15-2006. The respondent was successful in the application to strike out and hence an appeal was lodged by the appellant.

[6] It was in the course of finalising the index to the record of appeal that the appellant had sought to exclude certain exhibits. Exhibits were to be incorporated as Part C of the record of appeal. Learned counsel for the appellant by letter dated 15 August 2007 had transmitted a copy of the Draft Index of the Record of Appeal to the learned counsel for the respondent for approval. By a letter dated 20 August 2007 counsel for respondent then sent a reply which stated inter alia :

... Please note that you have omitted the following Exhibits as exhibited in the Defendant's supporting affidavit dated 4.01.2007. Kindly take notice that if the Exhibits are not included in t