LIM PEI YING LIM HUI TING

[JB-11ANCVC-3-04/2021] November 17, 2021 MALAYSIA IN THE HIGH COURT OF MALAYA SITTING AT MUAR IN THE STATE OF JOHORE CIVIL APPEAL NO.: JB-11ANCVC-3-04/2021 BETWEEN LIM PEI YING ... APPELLANT AND LIM HUI TING … RESPONDENT [IN THE MATTERS OF THE MAGISTRATES COURT AT MUAR IN THE STATE OF JOHORE DARUL TAKZIM, MALAYSIA CIVIL SUIT NO.: JB-A72NCVC-90-12/2019 BETWEEN LIM HUI TING … PLAINTIFF AND LIM PEI YING … DEFENDANT CORAM: AWG ARMADAJAYA BIN AWG MAHMUD JUDICIAL COMMISSIONER 1 [JB-11ANCVC-3-04/2021] November 17, 2021  GROUNDS OF JUDGMENT (ENCLOSURE 6)  INTRODUCTION [1] The Plaintiff / Respondent filed a Writ of Summon and Statement of Claim against the Defendant / Appellant vide suit number JB- A72NCVC-90-12/2019 in the Magistrates Court in Muar to claim outstanding arrears in rental amounting to RM22,750-00 (“main suit”). [2] When the Defendant / Appellant failed to enter appearance, a judgment-in-default was entered against the Appellant on 13 May 2020. The Respondent / Plaintiff filed for a judgment-in-default against the Appellant / Respondent when the Appellant / Respondent failed to enter appearance. [3] On 20 January 2021 the Appellant / Defendant filed an application to set aside the Judgment-in-Default in the main suit which was dismissed by the Magistrates Court on 25 March 2021 with a cost RM1,000-00. [4] The Plaintiff / Respondent then filed for a Writ of Seizure and Sale pursuant to Writ of Execution (No. JB-76WS-49-11/2020) and obtained an Order for Seizure and Sale dated 9 February 2021. [5] The Appellant / Defendant filed an application on 16 February 2021 to stay the execution of the order pending the disposal of application 2 [JB-11ANCVC-3-04/2021] November 17, 2021 to set aside the Judgment-in-Default. This application to stay proceedings was dismissed on 25 March 2021 with the cost of RM800-00. [6] On 19 April 2021, A Notice of Appeal (dated 16 April 2021) was filed against the decision of the Learned Magistrate in dismissing the application to set aside the judgment-in-default and it was served on the Respondent and served on the Respondent on 20 April 2021. [7] The Respondent is now raising an objection against the Appeal pursuant to Enclosure 4 on the grounds that the Notice of Appeal was filed out of time and hence the appeal is incompetent. Enclosure 4 was filed on 28 April 2021. [8] The Appellant now filed an application Enclosure 6 seeking for a leave for extension of time for the filing of Notice of Appeal. Enclosure 6 was filed 3 May 2021. THE LAW FOR AN APPLICATION FOR LEAVE FOR EXTENSION OF TIME FOR FILING THE NOTICE OF APPEAL. [9] Appeal to the High Court from a decision of the Subordinate Court is govern by Order 55. Order 55 Appeals to high court from subordinate courts …. 2. Appeal to be by re-hearing on notice (O. 55 r. 2) 3 [JB-11ANCVC-3-04/2021] November 17, 2021 All appeals to the High Court shall be by way of re-hearing and shall be brought by giving a notice of appeal within fourteen days from the date of the decision appealed from. 3. Notice of appeal against a decision made after trial (O. 55 r. 3) (1) A notice of appeal against a decision made after trial shall substantially be in Form 111 and shall be filed in the Court from which the decision is appealed from. (2) Any appellant may appeal from the whole or part of a judgment or order and the notice of appeal shall state whether the whole or part only, and what part, of the judgment or order is complained of. (3) (Deleted by PU(A) 24/2018:r.4) (4) A duplicate copy of the notice of appeal must be served by the appellant within the time limited for the filing of an appeal on all respondents. [10] In the Malaysian Civil Procedure 2015 at page 721 which states: “Extension of time - When a notice of appeal is not filed or served within time, the appellant should file an application to extend time to do so. An appellant may either file and serve the notice of appeal even though it is out of time and then file the extension of time application, or file the extension of time application and only file and serve the notice of appeal after the application is allowed” (5) For an appeal under this rule, the appellant shall, within the time limited for the filing of an appeal, apply to the Court 4 [JB-11ANCVC-3-04/2021] November 17, 2021 appealed from in writing for the notes of proceedings and the grounds of judgment. (6) The judgment of the High Court in the case of an appeal of a decision after trial shall be pronounced in open Court, either on the hearing of the appeal or at any subsequent time of which notice shall be given to the parties to the appeal. [11] I am keeping in mind that the overriding interest of justice. [12] It is trite law that preliminary objections solely based on non- compliance are disallowed and / or barred from being raised. Order 2 Rule 3 of the Rules of Court 2012 states that:- “A Court or Judge shall not allow any preliminary objection by any party to any cause or matter or proceedings only on the ground of non-compliance of any provision of these Rules unless the Court or Judge is of the opinion that such non-compliance has occasioned a substantial miscarriage of justice or occasioned prejudice that cannot be cured either by amendment or an appropriate order for costs or both.” [13] In MBF CARD SERVICES SDN. BHD. v. CHEW AH TOO @ CHEW HOE KEE [2009] 1 CLJ 140 the Court discusses Order 49 of the Rules of High Court 1980 which is equivalent to Order 55 of the Rules of Court 2012: (1) 49 rule 2(6) cannot be read in isolation but has to be read together with O. 49 r. 2(3) of the SCR. These two provisions, read together, imply that the notice served must be the same notice first filed in court and having gone through the various administrative processes. These provisions do not refer to just any spare or unprocessed notice to be served. 5 [JB-11ANCVC-3-04/2021] November 17, 2021 Statutorily, the filing and service of the notice must be effected within 14 days from the date the decision is pronounced. Sequentially, the filing of the notice comes first followed by service thereof. The court cannot know whether the notice has been filed and served within the 14-day period unless a date is shown in the notice. The Legislature thus requires an identifiable notice i.e., a notice that has been filed, to be served and not just any notice. (3) Currently, it is almost impossible for an appellant to extract and serve a notice of appeal within the statutory 14-day period. However, an aggrieved appellant is not stopped from applying for an enlargement of time to serve the endorsed notice of appeal. A simple application supported by reasonably good grounds would suffice. In the instant case, the defendant (appellant) did nothing. [14] The general principle of law is that appeal is a creation of statute. In AUTO DUNIA SDN BHD V. WONG SAI FATT & 3 ORS [1995] 3 CLJ 485, the Federal Court held that: “It is an elementary proposition that this court is a creature of statute and that equally a right of appeal is also a creature of statute, so unless an aggrieved party can bring himself within the terms of a statutory provision enabling him to appeal, no appeal lies.” [15] In B.H.O. SDN BHD V. WESAW TRADING SDN BHD & ANOR [2017] 1 LNS 1812, it was held: “... and litigants could avoid technicalities if they too make use of the provisions under the Rules to avail themselves. But where litigants chose to ignore the Rules and do nothing to being their case back on track, they do so at their own peril. The Rules does 6 [JB-11ANCVC-3-04/2021] November 17, 2021 not recognize apologies as a substitute of compliance of mandatory provisions and neither do this court.” [16] In NUSSERWANJEE PESTONJEE V. MEER MYNOODEEN KHAN WULLED MEER SUBROODEEN KAN BAADOOR [1855] VI MOORE IND. APP. 134, 155, the principle is that - “Where jurisdiction is given to a Court by an Act of Parliament, or by a Regulation in India, and such jurisdiction is only given upon certain specified terms contained in the Regulation itself, it is a universal principle that these terms must be complied with, in order to create and raise the jurisdiction, for if they be not complied with the jurisdiction does not arise.” [17] As said by Lord Goddard CJ in R V. WEST KENT QUARTER SESSIONS APPEAL COMMITTEE [1951] 2 All ER 728, at 730: It is most elementary that no appeal from a court lies to any other court unless there is a statutory provision which gives a right to appeal. The decision of every court is final if it has jurisdiction, unless an appeal is given by statute. [18] See also ATTORNEY-GENERAL V. SILLEM [1864] 10 HLC 704 where the House of Lords held that the creation of a right of appeal is an act which requires legislative authority: see by Lord Westbury LC at 719. [19] There is no right of appeal at law from a decision of a court to any other court unless there is a statutory provision which gives a right to appeal. The creation of a right of appeal is an act which requires legislative authority. The right to appeal from one court to another 7 [JB-11ANCVC-3-04/2021] November 17, 2021 must be conferred by some statute, otherwise, the decision of every court of law is final. [20] Based on the above authorities there are a few principles of law that we may distilled: i. An appeal is a creature of statute. If it is not provided for under the law, it is not a right of parties. ii. Before an appeal may be lodged, the court must have jurisdiction to hear the appeal. Otherwise the appeal is incompetent. iii. The appeal must be competent i.e. it has complied with all the pre requisites of an appeal. Failure to comply with the pre requisites of an appeal renders the appeal incompetent. iv. Pre requisites is different from mere technical non- compliance. Pre requisites concerns the pillars or the very existence of the appeal while technical non-compliance goes to the peripheral issues such as forms, words and other matters that does not affect the standing of such an appeal. v. An incompetent appeal has no standing before the Court and hence must be dismissed in limine. [21] It is in evidence that on 20 January 2021 the Appellant / Defendant filed an application to set aside the Judgment-in-Default in the main suit which was dismissed by the Magistrates Court on 25 March 2021 with a cost RM1,000-00. 8 [JB-11ANCVC-3-04/2021] November 17, 2021 [22] It is also undisputed that on 19 April 2021, A Notice of Appeal (dated 16 April 2021) was filed against the decision of the Learned Magistrate in dismissing the application to set aside the judgment- in-default and it was served on the Respondent and served on the Respondent on 20 April 2021. [23] The period for filing a Notice of Appeal is 14 days from the day of decision when it was given by the Learned Magistrate on 25 March 2021. Hence the expiry of the period for filing the Notice of Appeal was 8 April 2021. [24] However the Notice was filed on 19 April 2021 and served on the Respondent on 20 April 2021. [25] Only when the Respondent filed Enclosure 4 to strike out the Appeal as incompetent on 28 April 2021 that the Appellant filed an application for extension of time on 3 May 2021. [26] As per NUSSERWANJEE PESTONJEE V. MEER MYNOODEEN KHAN WULLED MEER SUBROODEEN KAN BAADOOR (supra) once an appeal is filed out of time, it is deprives the Court of the jurisdiction to hear the appeal. It is curable if and only if the Court grants an extension of time for filing of the Notice of Appeal. [27] Otherwise there is no appeal before the Court. [28] The reason given by the learned solicitor for the Appellant as per affidavit-in-support (Enclosure 7) for the application for extension of time are as follows: 9 [JB-11ANCVC-3-04/2021] November 17, 2021 i. The learned solicitor for the Plaintiff had to seek treatment at the hospital due to medical emergencies. ii. The firm lacked staff to assist her in the filing of the Notice of Appeal. [29] The Respondent responded vide affidavit-in-opposition (Enclosure 14) that : i. The learned solicitor for the appellant had filed a Notice of Appeal for another civil appeal (No. JB-11ANCVC-3-03/2021) on 30 March 2021. ii. According to a search with the Malaysian Bar website showed that the firm Messrs Sumitra Devi & Partners has 3 partners practising under the firm. [30] I noted NO MEDICAL REPORT was exhibited with the affidavit-in- support to allow this Court to examine whether the reason is not only genuine but grave enough for this Court to consider. THE LAW IN RESPECT OF AFFIDAVITS AFFIRMED BY SOLICITORS [31] This Court takes note that Enclosure 7 has been affirmed by the learned solicitor for the appellant and not the appellant himself. [32] We come to the issue of solicitors affirming affidavits in behalf of their client. And this brings us to Rule 28 Legal Profession (Practice and Etiquette) Rules 1978 which stipulates as follows: 10 [JB-11ANCVC-3-04/2021] November 17, 2021 28. Advocate and solicitor not to appear in a case where he is a witness (a) An advocate and solicitor shall not appear in Court or in chambers in any case in which he has reason to believe that he will be a witness in respect of a material and disputed question of fact, and if while appearing in a case it becomes apparent that he will be such a witness, he shall not continue to appear if he can retire without jeopardising his client's interests. (b) An advocate and solicitor shall not appear before an appellate tribunal if in the case under appeal he has been a witness on a material and disputed question of fact in the Court below. (c) This rule does not prevent an advocate and solicitor from swearing or affirming an affidavit as to formal or undisputed facts in matters in which he acts or appears. [33] In LEE KAM SUN V. HO SAU LIN & ANOR [1999] 4 CLJ 507; [1999] 4 MLJ 509, the court allowed the preliminary objection that the firm of Messrs Cheah Teh & Su should be disqualified from acting for the plaintiff in the civil action as they were the solicitors for the plaintiff in drawing up of the agreement and were involved in the transaction. His Lordship, Justice James Foong (as he then was) held at p. 509 (CLJ); pp. 513-514 (MLJ): It is a well-established principle that lawyers should not act as counsel and witnesses in the same proceedings. The reason, as expounded by Beaumont CJ in EMPEROR V. DADU RAMU [1939] AIR Bom 150, is: "An advocate cannot cross-examine himself, nor can he usefully address the Court as to the credibility of his own testimony, and a Court may feel that justice will not be done if the 11 [JB-11ANCVC-3-04/2021] November 17, 2021 advocate continues to appear". This rule is expressly accepted by the Federal Court in WONG SIN CHONG & ANOR V. BHAGWAN SINGH & ANOR [1993] 4 CLJ 345; [1993] 2 AMR 3351; [1993] 3 MLJ 679 at 678. [34] The first principle relating to r. 28 of the Legal Profession (Practice and Etiquette) Rules 1978 that was laid down by His Lordship Justice Wan Yahya in WEE CHOO KEONG V. PP [1990] 1 CLJ 1015; [1990] 3 CLJ (Rep) 346, whereby His Lordship decided it was never the intention of r. 28 of the Legal Profession (Practice and Etiquette) Rules 1978 that an advocate and solicitor automatically must be precluded as a solicitor as soon as he becomes aware that he would be a potential witness. His Lordship's remarks were as follows: (1) Rule 28 of the Legal Profession (Practice and Etiquette) Rules 1978 does not envisage that an advocate and solicitor is ipso facto excluded from appearing as such in Court, the moment he believes that he will be a witness. That ethical restriction will only arise if he is likely to be a witness of any material or disputed fact. Rule 28 is a rule of ethics and the magistrate should not have applied it totally with the stringency of the force of law. (2) The only matter which appears to be in conflict with the petitioner's presence is the allegation that he and not the deceased's son wrote the police report. The problem could be fairly solved by confining the magistrate's order only to that stage of the proceeding if and when the deceased's son is about to give evidence. [35] WEE CHOO KEONG (supra) was followed by His Lordship Justice Ramli Ali) in HONGKONG BANK MALAYSIA BHD V. MOHAMMED NOOR TAMLIHO [2002] 3 CLJ 139. 12 [JB-11ANCVC-3-04/2021] November 17, 2021 [36] The second and most crucial principle pertaining to r. 28 that was laid down by the Court of Appeal in QUAH POH KEAT & ORS V. RANJIT SINGH TARAM SINGH [2009] 4 CLJ 316; [2009] 4 MLJ 293. That was when the Court of Appeal agreed with the High Court to invoke r. 28(a) to disqualify the legal firm Messrs Lee Hishamuddin (the firm of which both Lim Heng Seng and Dato' Naban served as partners) to avoid the embarrassment during trial and to “eliminate any possible conflict of interest surfacing on the solicitors’ part and simultaneously ensured that the interests of the contesting parties were not compromised.” His Lordship, Justice of the Court of Appeal Suriyadi Halim Omar (speaking for the Court of Appeal) in delivering the judgment of the Court of Appeal said the following: It would be unlikely that Datuk Naban would suggest to the respondent to “pack his bags and go” if the conclusion of the meeting had not been consonant with his or the firm’s legal views. If he had held a differing view, it was more than likely that the unpleasant duty of transmitting the bad news would have fallen on a KPMG official or some other person. By all accounts, this finding of guilt of the respondent of gross misconduct, followed by the instruction to “pack his bags and go”, were material issues as there was total denial of the charges by the respondent. With the demands of r. 28(a) of the Legal Profession (Practice and Etiquette) Rules 1978 having been completely complied with, in particular the existence of the statutory requirements of material or disputed facts, any reasonable man armed with those facts would anticipate the calling of those two solicitors as witnesses. Thus, the High Court judge’s ruling had eliminated any possible conflict of interest surfacing on the solicitors' part and simultaneously ensured that the interests of the contesting parties were not compromised. 13 [JB-11ANCVC-3-04/2021] November 17, 2021 [37] To address this issue, the starting point is O. 41 r. 5 of the Rules of Court: Order 41 - Affidavits … Rule 5 - Contents of affidavit (O. 41 r. 5) (1) Subject to Order 14, rules 2(2) and 4(2), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove. (2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information of belief with the sources and grounds hereof. [38] The general rule that an advocate and solicitor is not allowed to affirm an affidavit is rooted in r. 28 of the Legal Profession (Practice and Etiquette) Rules 1978. This general rule stem from the fact that any deponent of affidavits may be cross-examined by the adversary (subject to leave of court). [39] There are, however, exceptions to this rule. In the case of MALAYAN BANKING BHD V. CHARTEREFIELD CORPORATION SDN BHD [2001] 6 CLJ 407 (which was subsequently adopted by His Lordship Justice RK Nathan in SIVANANTHAN V JAGANATHAN V. TEH YEE FUN & ANOR [2003] 4 CLJ 551; [2003] 3 AMR 584) His Lordship, Judicial Commissioner Ramly Ali (as he then was) in the following 14 [JB-11ANCVC-3-04/2021] November 17, 2021 paragraphs, summed up the situation where an advocate and solicitor is allowed to depose an affidavit on behalf of the litigant: ... I am of the view that a solicitor may depose an affidavit on behalf of the litigant if all the following conditions are fulfilled: (i) the facts to be deposed must not be contentious or disputed question of facts; (ii) the facts to be deposed must be from his knowledge (if the affidavit is for the purpose of being used in interlocutory proceedings, it may contain statements of information or belief with sources and grounds thereof); and (iii) he is authorised to depose the affidavit by the litigant. [40] It is clear that O. 41 r. 5 stipulates “(1) subject to O. 14 rr. 2(2) and 4(2 ), to para. (2) of this rule and to any order made under O. 38 r. 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove. (2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information of belief with the sources and grounds hereof.” [41] Having scrutinised the affidavit affirmed by the learned solicitor vide Enclosure 7, I found it does not fall within any of this exceptions. [42] Hence I am of the view that Enclosure 7 is inadmissible. [43] Even if I were to accept Enclosure 7 and for the sake of the arguments that I consider the reasons given by the learned solicitor 15 [JB-11ANCVC-3-04/2021] November 17, 2021 (which I am not) the reasons given are unacceptable as the learned solicitor could file the Notice of Appeal for another case on 30 March 2021 and not for this one, so the alleged medical emergency is unacceptable. [44] Apart from that the search from the Malaysian Bar Website that there are 3 solicitors practising under the name and style of Messrs Sumitra Devi & Partners, and there was no denial or rebuttal on this point. There is nothing averred on the difficulties of getting other legally qualified solicitors to handle this case during her alleged medical emergency. [45] Hence the principles in NG HEE THONG v. PUBLIC BANK BHD [1995] 1 CLJ 609 is applicable, that is to say, “It is a well settled principle governing the evaluation of affidavit evidence that where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict is usually treated as an admission by him of the fact so asserted.”. CONCLUSION [46] In view of the fact that Enclosure 7 has been ruled inadmissible there is nothing before this Court to consider and there is nothing left to support the application for extension of time to file Notice of Appeal out of time. [47] Now that the Notice of Appeal is filed out of time and no leave was granted, this appeal lack competency and this Court has no jurisdiction to hear an incompetent appeal. 16 [JB-11ANCVC-3-04/2021] November 17, 2021 [48] Further I take note that Enclosure 4 i.e. application to strike out the appeal was filed on 28 April 2021 while Enclosure 6 i.e. application for extension of time was filed on 3 May 2021. [49] After considering all arguments I ruled as follows: i. The decision was given by the Learned Magistrate on 25 March 2021. ii. The last date to file any appeal against that decision was on 8 April 2021. iii. The notice of appeal by the appellant was filed on 19 April 2021 and served on the Respondent on 20 April 2021. iv. Application for extension of time was filed only on 3 May 2021 after application by respondent to strike out the appeal on 28 April 2021. v. No good reason was given for the late filing. vi. The Notice of Appeal filed on 19 April 2021 and served on the respondent on 20 April 2021 is therefore incompetent and must be dismissed in limine. [50] For the reasons aforesaid, I allow Enclosure 4 and dismiss Enclosure 6 with cost. [51] As a consequential order following this decision, I struck out both the Notice of Appeal pursuant to Enclosure 1 and the application to adduce additional evidence pursuant to Enclosure 17. I order a total cost of RM3,000-00 for the Respondent for all matters, subject to allocator fees. 17 [JB-11ANCVC-3-04/2021] November 17, 2021 Dated this 17th November 2021 at Muar in the State of Johore. t.t. AWG ARMADAJAYA BIN AWG MAHMUD Judicial Commissioner High Court of Malaya Muar Johor Darul Ta’zim Curia Advisari Vult Counsels: For the Appellant : Sumitra Devi a/p Krishnan For the Respondent : Nadarajan a/l Thanimalai Solicitors: For the Appellant Messrs Sumitra Devi & Partners Advocates & Solicitors A-13-01, The Tube, Prima Avenue Tower A, Jalan PJU 1/39 47301 Petaling Jaya Selangor. [Ref. No.: SDP/L/1001/LPY/01-2021] For the Respondent Messrs H T Lim & Partners Advocates & Solicitors No. 7A, Jalan Susur Kulai 1 Taman Seraya, Kulai Besar 81000 Kulai Johor. [Ref. No.: LHT/1373/21/LPY/APPEAL/SA/GL] Hearing Date : 20th September 2021. Decision Date : 17th November 2021. 18 [JB-11ANCVC-3-04/2021] November 17, 2021 LEGISLATURE: ➢ Order 2, 41, 55 Rules of Courts 21012 ➢ Rule 28 Legal Profession (Practice and Etiquette) Rules 1978 LITERATURE: ➢ Malaysian Civil Procedure 2015 at page 721 CASES REFERRED TO: ➢ MBF CARD SERVICES SDN. BHD. v. CHEW AH TOO @ CHEW HOE KEE [2009] 1 CLJ 140 ➢ AUTO DUNIA SDN BHD V. WONG SAI FATT & 3 ORS [1995] 3 CLJ 485 ➢ B.H.O. SDN BHD V. WESAW TRADING SDN BHD & ANOR [2017] 1 LNS 1812 ➢ NUSSERWANJEE PESTONJEE V. MEER MYNOODEEN KHAN WULLED MEER SUBROODEEN KAN BAADOOR [1855] VI MOORE IND. APP. 134, ➢ R V. WEST KENT QUARTER SESSIONS APPEAL COMMITTEE [1951] 2 All ER 728 ➢ ATTORNEY-GENERAL V. SILLEM [1864] 10 HLC 704 ➢ LEE KAM SUN V. HO SAU LIN & ANOR [1999] 4 CLJ 507; [1999] 4 MLJ 509 ➢ EMPEROR V. DADU RAMU [1939] AIR Bom 150, ➢ WEE CHOO KEONG V. PP [1990] 1 CLJ 1015; [1990] 3 CLJ (Rep) 346 ➢ HONGKONG BANK MALAYSIA BHD V. MOHAMMED NOOR TAMLIHO [2002] 3 CLJ 139 ➢ QUAH POH KEAT & ORS V. RANJIT SINGH TARAM SINGH [2009] 4 CLJ 316; [2009] 4 MLJ 293 ➢ MALAYAN BANKING BHD V. CHARTEREFIELD CORPORATION SDN BHD [2001] 6 CLJ 407 ➢ SIVANANTHAN V JAGANATHAN V. TEH YEE FUN & ANOR [2003] 4 CLJ 551; [2003] 3 AMR 584 ➢ NG HEE THONG v. PUBLIC BANK BHD [1995] 1 CLJ 609 19