For the want of a nail: Discussing the CA decision of Inno-Wangsa (appeal struck for procedural non-compliance)
- Gavin Jayapal
- 18 hours ago
- 5 min read
Our Firm previously delivered a talk to the Malaysian Bar on civil appeals and the procedural aspects of the same:
Slides were prepared for said talk:
For the want of a nail
Inno Wangsa v Raksam Ingridients (sic) (Civil Appeal No.:N-02(IM)(C)-412-03/2025 ought to serve as a cautionary tale for any practitioner undertaking a civil appeal.
Brief facts
Inno-Wangsa (IW) and Raksam Ingredients (Raksam) were involved in a Palm Oil Refiners’ Association of Malaysia (PORAM) Arbitration.
An Award dated 05.08.2024 was issued (Award AA446), presumably in favour of Raksam (as they did not apply to set-aside).
Dissatisfied, IW lodged an OS to set-aside the Award.
The application to strike
Raksam filed to strike-out the OS (Encl 5). In response, IW filed 2 applications (Encls 7 and 19) to amend the OS.
On 05.03.2025, the HC allowed Raksam’s application to strike.
The HC held, inter alia, as follows:
a. That IW had failed to particularise which Section of the Arbitration Act 2005 the Court is being moved under (a mandatory requirement under Cheow Chew Khoon v Abdul Johari [1995] 1 MLJ 457, but c.f. the FC decision of Malayan Banking Bhd v Chairman of Sarawak Housing Developers' Association [2014] 5 MLJ 169, where the FC emphasised that Courts are to look at fairness and justice);
b. IW was out of time (90 days to set-aside the Award had expired on 06.11.2025, whereas the OS was filed on 08.11.2025);
c. There were spelling errors in Raksam’s name (Raksam Ingridients as opposed to Raksam Ingredients);
d. Errors in the company number.
As a result, the HC struck the entire OS.
The appeal
Dissatisfied, IW appealed. Rather unfortunately, when it rains, it pours.
Raksam filed a Motion to strike-out IW’s appeal. Raksam cited the following (para. 8 GOJ):
a. Cause papers were omitted from the Record of Appeal;
b. IW ignored comments to the draft index (comments from Raksam’s solicitors and from the Court);
c. The ROA contained documents that had not been referenced during the Hearing;
d. The sealed HC Order was inconsistent with the draft that the HC had approved;
e. The HC intitulement (as listed in the CA) does not tally with the actual intitulement as per the HC proceedings;
f. The company number was wrongly listed;
g. The name of the Respondent was misspelt.
The CA held that all of the above, when taken together, constituted a serious breach of the rules. The Motion was allowed and the appeal was struck:
[10] Having heard the submission and having read the cause paper, we are of the view that there was a serious breach of the Rule 18(4)(a) and (c) of Rules of the Court of Appeal 1994 and the Court of Appeal Practice Direction No.1 of 2017 (PD-1 / 2017) whereby the appellant has failed to include the material and mandatory cause papers that are crucial to this appeal from the Record of Appeal such as:
(i) the appellant’s Originating Summons dated 8/11/2024 (the High Court-Enclosure 1);
(ii) the appellant ‘s Affidavit in Support dated 8/11/2024 (the High Court-Enclosure 2); and
(iii) the respondent’s Affidavit in Reply dated 3/12/2025 (the High Court-Enclosure 4).
[13] In general, the omission or inaccuracy in the Appeal Records does not automatically render an appeal incompetent unless the defect is so fundamental that it prejudices the respondent or impedes the Court’s ability to hear the appeal. Technical non-compliance with procedural rules should not defeat a substantive appeal unless it causes real prejudice or amount to an abuse of process. In such cases, the Court generally prefers to order rectification rather than to strike out.
[14] However, in the present case, the omission of the said material papers has caused prejudice to the respondent as the respondent is unable to take further steps to respond to the Appeal including filing of written submissions for the appeal (which has been fixed for filing on 14/10/2025) whilst the hearing of the appeal is fixed on 11/11/2025.
[16] In short, the Record of Appeal is fundamentally defective.
[17] We also find that the appellant’s failures amount to abuse or contumelious disregard of the rules. The appellant had failed to rectify the defects despite opportunities being given.
IW attempted to belatedly correct these issues by filing a Supplementary Record of Appeal. However, the CA held that this was insufficient as it was belatedly filed and was put in without leave of the Court:
[18] The Supplementary Record of Appeal which the appellant filed seeking to cure the defects was filed without any application to seek leave and was only filed three days before the hearing of this appeal as a last-minute attempt to comply with the rules.
[19] In light of the above, the exemption in Rule 3A Rules of the Court of Appeal 1994 could not be used to save the appellant. The appellant should live with the consequences of its own fault.
Key takeaways
Any practitioner approaching an appeal should act with surgical care. Timelines must be strictly and obsessively complied-with. Early preparation and moving an appeal quickly are of the imperative.
Getting the basics right will always enable one to commit hammer-and-tongs to the substance of the appeal. Procedural skirmishes are laborious and they detract from the core issue at-hand. It is always better to sort this out efficaciously right from the word go.
GAVIN JAYAPAL
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