JUDGMENT

Lamin Mohd Yunus PCA:

There were three applications before us namely encls. (7a), (8a) and (11a). Enclosure (7a) was an application by the appellant for leave to file an additional Record of Appeal. Enclosure (8a) was an application also by the appellant for a stay of the order made by the High Court on 29 December 1997 pending the final disposal of the appeal by this court of the said order. Enclosure (11a) was an application by the respondent praying for an order that the appellant's appeal filed in this court on 7 January 1998 be dismissed on the ground that it was filed without first obtaining the leave of this court and therefore incompetent.

The three applications came before us on 28 May 1998. We decided to hear encl. (11a) first as the fate of the other two applications would depend on the outcome of the application in encl. (11a). We unanimously allowed the application with costs. The Notice of Appeal was struck out. Accordingly the motions in encls. (7a) and (8a) must be dismissed and we therefore dismissed them but with no order as to costs.

If we may briefly state the background of this case which is as follows. The respondent (the plaintiff below) on 28 July 1967 entered into a sale and purchase agreement with the appellant (defendant below) wherein the respondent agreed to purchase twenty six pieces of land situated at Jalan

Pandan in the District of Johore Bahru, Johore in the Mukim of Tebrau at the price of S$52,000 (see agreement p. 14 of encl. (11a)). The respondent paid the full purchase price but for several years the directors of the appellant could not be located in order to facilitate the transfer. The respondent then filed a writ at the Johore Bahru High Court against the appellant. Upon service being effected with the original statement of claim, the appellant failed to enter appearance. The respondent thereby entered default judgment on 14 January 1980. On 22 March 1982 upon the respondent's application, the senior assistant registrar executed the instruments of transfer and authorised the respondent to apply to the collector of Land Revenue, Johore for the issuance of new Issue Documents of Title. On 28 October 1984 the collector of Land Revenue issued new Issue Documents of Title to the respondent. But due to some error, the transfer was only effected in respect of 25 pieces out of 26. The last Title was still in the possession of the appellant. However the default judgment dated 14 January 1980 was subsequently set aside by the Federal Court on 10 May 1985 thereby rendering it necessary to proceed to trial. For the purpose of the trial an amended statement of claim was filed (see p. 20 of encl. (8a)) and a decision of the court was delivered on 29 December 1997 (see p. 16 of encl. (7a)).

Section 68(1) of the Courts of Judicature Act 1964 (hereafter "the Act") states that no appeal shall be brought to the Court of Appeal:

(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.

It is undisputed that the value of the subject-matter in this case which was the value of the contract price was below RM250,000 and we are of the view that it falls squarely within the requirement of s. 68(1)(a) of the Act in that leave must first be obtained before an appeal can be filed. Learned counsel for the applicant/appellant in respect of encls. (7a) and (8a) however argued that the declaration prayed for in the statement of claim would come within the terms of the Court of Appeal Practice Direction No. 2 of 1996 relating to "declarations" and so no leave would be required. The said Practice Direction lays down the types of declarations in respect of which leave is not required thus:

(ii) Deklarasi - untuk mengisytiharkan bahawa sesuatu pemberian lesen, perbuatan, peninggalan atau keputusan sesuatu badan atau mana-mana orang yang diberi kuasa oleh undang-undang adalah tidak