JUDGMENT

Ahmad Fairuz JCA:

This is a motion by the appellant/plaintiff for an extension of time to serve the notice of appeal on the respondent. By way of this motion too, the appellant sought to file and serve the record of appeal on the respondent.

The affidavit-in-support of the motion discloses that:

(a) the judgment of the High Court in Sabah and Sarawak at Bintulu was given on 22 November 1996;

(b) the appellant's counsel's letter of 29 November 1996 (exhibited as 'JAT 2') addressed to the respondent's counsel, enclosed the notice of appeal;

(c) the receipt proving the posting of 'JAT 2' by registered mail could not be found;

(d) the respondent was "aware of the notice of appeal as he responded to the appellant/plaintiff's application for stay of execution";

(e) the respondent's counsel's letter of 7 January 1997 also showed that the respondent was aware of the notice of appeal;

(f) the appellant had, on 23 December 1996, written to the Senior Assistant Registrar, High Court Sandakan, requesting for the notes of proceedings; and

(g) the secretary to the learned High Court judge in Sandakan had written on 30 December 1996 to the Senior Assistant Registrar, High Court Miri, requesting that the notes of proceedings be forwarded to the appellant.

In his oral submissions, the learned counsel for the appellant conceded that the notice of appeal was not personally served on the respondent. This was due to counsel's oversight. Nevertheless, the learned counsel contended that the exh. 'JAT 2' showed that the respondent was aware of the notice of appeal. As to merits, the learned counsel claimed that there was forgery of the memorandum of transfer. The question of burden of proof as regards forgery is a point of law in issue. The learned judge, according to the learned counsel, had held that the burden of proof is beyond reasonable doubt. The learned counsel, however, argued otherwise.

In reply, the learned counsel for the respondent stressed that para. 4 of the affidavit-in-support did not explain why the notice of appeal was not served on the respondent. The learned counsel also pointed out that the affidavit-insupport did not contain any explanation as to why the appellant applied to court late. As regards merits, the learned counsel submitted that the judgment talked of fraud and consequently the decision of the learned judge on the burden of proof was correct.

The learned counsel for the appellant submitted a number of authorities in support of his submissions, one of which was the case of Soh Keng Hian V. American International Assurance Co. Ltd. [1995] This court in that case had also to consider an application similar to the one now before us. Gopal Sri Ram, JCA, in delivering the judgment of the court stated:

It is axiomatic that this court is seized of a wide discretion to extend time in proper and deserving cases. But, it is not an unprincipled discretion.

There must be some relevant evidential material made available before the court may exercise discretion.

In the case presently before this court, the evidential material made available by the appellant are in the affidavit-in-support of the motion. Exhibit 'JAT 2' shows that the notice of appeal was sent. But there is no proof of 'JAT 2' having been mailed or faxed to the respondent. In fact, the appellant's counsel conceded that the notice of appeal was never served personally on the respondent due to an oversight of counsel. This, however, was never mentioned in the affidavit-in-support. What was the nature of the oversight too, was never particularised in the affidavit-in-support. What is clear from the affidavit-insupport is that the High Court delivered its decision on 22 November 1996. This means that the notice of appeal should have been served by 22 December 1996. Despite this, the appellant only filed this motion on 13 January 1997. Yet the affidavit-in-support does not disclose any explanation as to why the notice of appeal was not served on th