[2018] 1 LNS 1076 Legal Network Series

MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK AT SIBU
[CIVIL APPEAL NO. SBW-12BNCVC-2/1-2018]

BETWEEN

1. OLIVIA TING YING YING

(WNKP. 860529-52-5908)
No. 2-A, Lorong 2,
Jalan Bunga Teratai,
96000 Sibu, Sarawak.

2. TANG AIK LING

(WNKP. 651006-13-5774)
Lot 664, 1B, Taman Hillstone Lopeng,
Jalan Airport,
98000 Miri, Sarawak.

3. TING YIIK DAK

(WNKP. 840624-13-5539)
No. 2-A, Lorong 2,
Jalan Bunga Teratai,
96000 Sibu, Sarawak.

4. TING HUAT SOON

(WNKP. 821021-13-5261)
No. 18, Taman Istiwajar,
Jalan Tanjung Batu,
Bintulu, Sarawak … Appellants/ Defendants

AND

WONG YEW SEING

(WNKP. 810124-13-5455)
No. 42-B, Jalan Gambir,
96000 Sibu, Sarawak … Respondent/ Plaintiff

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GROUNDS OF DECISION

1. Following a trial arising out of a dispute between the Plaintiff

and the 4 Defendants who were all business partners at one time,
the Sessions Court on 15 January 2018 ordered the Defendants
to pay the Plaintiff the total sum of RM306,293.92, together
with interest thereon at the rate of 5% per annum from the date
of the filing of the Writ of Summons to the date of full and final
settlement and total costs of RM27,025.00.

2. On 26 January 2018, the Defendants filed their Notice of

Appeal.

3. The Record of Appeal was filed on 26 February 2018.

4. The parties were furnished the Grounds of Decision on 15 March

2018.

5. For convenience, the parties will be referred to as they were in

the Sessions Court.

6. Learned counsel for the Plaintiff has raised preliminary

objections against the appeal, specifically against the conduct of
the Defendants, in the following manner: -

“(i) failure to send draft index to the Respondent’s advocates

before the filing of record of appeal;

(ii) failure to apply for notes of proceedings and the grounds

of judgment within the stipulated time;

(iii) failure to serve the Record of Appeal within the stipulated

time; and

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(iv) incomplete Record of Appeal (omission of the notes of

evidence and memorandum of appeal).”

7. The Notice of Appeal having been filed on 26 January 2018, the

last day for the filing of the Record of Appeal would be 25
February 2018. Since the deadline fell on a Sunday, the
Defendants had until 26 February 2018 to file the Record of
Appeal. Their solicitors did not do so until 1 March 2018, and in
their submissions relating to the Plaintiff’s preliminary
objections, explained that the Record of Appeal is thick and
took time to print out, which explanation is unacceptable.

8. The duty to file and serve the Record of Appeal within the
stipulated time is mandatory, as set out in Order 55 rule 4(1) of
the Rules of Court 2012. Similarly, it is mandatory to send the
draft index to the other side before the Record of Appeal is
compiled: Order 55 rule 4(4) of the Rules of Court 2012. In both
instances, the word “shall” is used in the respective rules. As
was held in Abdul Hamid Mohd Amin v Ramacon Corporation
Sdn Bhd [2016] 3 CLJ 111, the “shall” provisions “must be
strictly complied with and adhered to save under exceptional
circumstances”.

9. The Defendants’ failure to file the Record of Appeal and the

draft index timeously is fatal.

10. Next, the preliminary objection relating to the incomplete

Record of Appeal which did not have the Grounds of Judgment,
the Notes of Proceedings and the Memorandum of Appeal.

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11. Since the Sessions Court only provided the Grounds of

Judgment on 15 March 2018, subsequent to the deadline for the
Record of Appeal, there is good reason for the same to be
included in the Supplementary Record of Appeal. Likewise, the
Notes of Proceedings, though the Defendants did not write in for
the Notes with promptitude.

12. Indeed, Order 55 rule 4 (2) of the Rules of Court 2012 provides
that the Grounds of Judgment and Notes of Proceedings can be
“filed by way of a supplementary record of appeal without leave
of the High Court.”

13. However, the Defendants did not file their Memorandum of

Appeal within the one-month period which would have enabled
the Plaintiff as the Respondent to know the grounds against
which the other side was attempting to attack the trial decision.

14. Learned counsel for the Plaintiff drew the Court’s attention to
Ku Mohd Shabri Ku Bahadot v Yap Wing Shun & Anor [2017] 1
LNS 1198, where it was held:-

“Based on Order 55 rule 4(1) of the ROC 2012, this Court

is of the view that it is clearly a mandatory provision to be
adhered to where the filing of the Memorandum of Appeal
and the Record of Appeal be filed within 1 month from the
date of filing of the Notice of Appeal. The duty of filing the
Memorandum of Appeal lies with the appellant and based
on the facts before this Court, there was no proper steps
taken by the Plaintiff's counsel to rectify the matter within
the one month timeline.”

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15. As for the Defendants’ contention that there was mere technical
non-compliance and their reliance on Order 1A of the Rules of
Court 2012, the recent decision of Lee Heng Cheong J in Chieng
Chuang Construction Sdn Bhd v Howdah Enterprise Sdn Bhd
[2018] 1 LNS 26 is instructive: -

“In ABDUL HAMID MOHD AMIN v. RAMACON

CORPORATION SDN BHD [2016] 3 CLJ 111, the court
held inter alia as follows:-

“It is a well settled proposition that “shall” provisions

in procedural rules are mandatory provisions that
cannot be casually disregarded but must be strictly
complied with and adhered to save under exceptional
circumstances. The Court have consistently upheld and
reiterated this principle.”

In MAT YASSIN DOLLAH v. IBRAHIM HUSSIN & Anor

[1996] 4 CLJ 395, the court held:-

“Order 49 r. 3A(1) of the SCR is mandatory in its terms

by reason of the word “shall” contained therein.
Accordingly, strict compliance with the provisions of O.
49 r. 3A(1) of the SCR is required; a failure to enclose
any one of the necessary items in the appeal record will
render it defective. The rules of the Court must be
obeyed; they must be obeyed; they must be meticulously
and faithfully complied with.”

12. This Court finds that the Appellant/Defendant has

failed to prepare and file the requisite Record of Appeal in

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respect of this Appeal within the requisite one month from

the date of filing of the Notice of Appeal dated 15.2.2017
which time period expired on or before 14.3.2017, in
breach of O. 55 r. 4(1) of the Rules of Court which is a
mandatory provision and thus must be strictly complied
with and adhered to, save under exceptional
circumstances.

13. This Court finds that Order 55 r. 4 of the Rules of

Court 2012 is a specific and express provision which is
mandatory or imperative in nature and that Order 1A of
the Rules of Court 2012 ought not be invoked to supersede
a mandatory requirement of the Rules of Court.”

16. Apart from the cumulative disregard of the various mandatory

provisions relating to an appeal from a subordinate Court, it is
also to be noted that the Defendants have not made the
necessary applications for extension of time. There is no
evidence of any exceptional circumstances that have been put
forward by the Defendants to resist the preliminary objections.
The Defendants have failed to hearken to the necessity to do so.

17. In Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan
Iskandar Al-Haj v Datuk Captain Hamzah Mohd Noor & Another
Appeal [2009] 4 CLJ 329, the Federal Court delivering its
judgment through Zaki Tun Azmi CJ held:-

“A party who is late in filing the relevant papers must

obtain an order from the court to extend the time, if such
extension is required and is permitted by the Rules”

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18. The appeal is struck out on account of the preliminary

objections as upheld above, with costs of RM3,000.00 subject to
payment of the allocatur fee.

Dated: 1 AUGUST 2018

(LIM HOCK LENG)

Judicial Commissioner
High Court Sibu

Counsel:

For the Appellants - Raphael Ling; M/s Ling & Associates

For the Respondent - Clement Wong Teck Hoo; M/s Clement & Co