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PSA to Civil Litigators: ALWAYS include a Memorandum of Appeal in your Record of Appeal

  • Writer: Gavin Jayapal
    Gavin Jayapal
  • Sep 29
  • 5 min read

The CA recently issued its Grounds of Judgment in Tan Hoo Eng v Lim Keck Eng [CIVIL APPEAL NO. C-02(NCVC)(W)-1990-10/2022. The Grounds are also carried by Lexis at [2025] MLJU 2819.


The CA’s decision is a salutary reminder to all litigators: ALWAYS, ALWAYS ALWAYS INCLUDE A MEMORANDUM OF APPEAL IN YOUR RECORD OF APPEAL.


The most common scenario facing practitioners: the Grounds of Judgment are not ready


This is the single-most common scenario for any practitioner handling an appeal:


  1. Your Notice of Application is dismissed;

  2. The HC informs parties that Grounds of Judgment will be issued if a Notice of Appeal is lodged;

  3. A Notice of Appeal is filed within 2 weeks;

  4. A letter is also issued to the HC asking for the Grounds of Judgment.


The following timeline then appears:


  1. Assume the Decision was rendered on 01.01.2025;

  2. The Notice of Appeal is lodged on 14.01.2025;

  3. Pursuant to the Rules of the Court of Appeal (R. 18(7) ROCA 1994), the Memorandum and Record of Appeal are to be filed within 90 days of the Decision;

  4. As such, the Memorandum and ROA are due by ~01.04.2025 (though I would just KIV 20.03.2025 as my end-date);

  5. The solicitor rushes to get this prepared. However, the Grounds of Judgment are not prepared/ready;

  6. In this scenario, the solicitor files the ROA without the Memorandum of Appeal. The solicitor reasons that when the full Grounds of Judgment are out, the Grounds (together with the Memorandum) may be filed within 3 weeks (R. 18(7A) ROCA 1994).


For the sake of your sanity, please do not make this assumption.


The decision in Tan Hoo Eng


In Tan Hoo Eng, the HC gave detailed and complete oral Grounds on 29.09.2022.

However, no written grounds were forthcoming.


The Appellant filed the ROA on 20.12.2022 without a Memorandum. The oral Grounds were then transcribed by the parties on 08.06.2023. Despite this, the Appellant did not file a Memorandum.


The Respondents then applied at the CA to strike-out the appeal (Encls 96 and 110). The Appellant, in-turn, applied for an extension of time to regularise the papers (Encl 184).

The HC issued its written grounds of judgment on 27.05.2025.


The CA considered the latest (now penultimate) decision on this point (Firdaus Khan [2024] 4 MLJ 474). The CA noted that despite falling within the “2nd Scenario” envisaged by Firdaus Khan, the Appellant herein had the full oral Grounds of Judgment from as far back as 08.06.2023. Despite having this, they did not file the Memorandum of Appeal nor did they put in any motion to regularise the papers (by filing a Supp ROA containing the MOA and transcribed GOJ).

[29]  Applying the said scenarios to the instant Motion, the 57- page transcript of the proceedings on 29.9.2022 was made available on 8.6.2023, which is after the filing of the ROA on 20.12.2022. The situation is more akin to the 2nd scenario alluded to in Firdaus Khan. Granted that the (oral) broad grounds of the decision are a complete analysis of the issues raised and also narration of background facts, the Appellants could have filed the MOA within three weeks after the availability of the transcript within the meaning of R 18(7A) of the RCA 1994, which was 8.6.2023.
[34]  Even if the sealed copy of the judgment is not available within the 90-day period after the delivery of the decision due to disputes between the parties, the Appellants are not precluded from filing the same under rule 18(7A) together with the MOA as supplementary records of appeal within three weeks of being notified of its availability.
[35]  There is therefore no material for this Court to grant leave for the extension of time as prayed by the Appellants in Encl. 184.
[40]  The Motion in Encl. 184 is therefore dismissed.
[41]  In view of our findings, the Motions by R1-R5 in Encl. 96 and R6 in Encl. 110 to strike out the Appeal are allowed. Likewise, the Appellant’s Motion in Encl. 104 to regularise the ROA is dismissed.

As a result, the CA dismissed Encl 184. The CA further allowed Encls 96 and 110 and the appeal was struck.


What you should do


To safeguard your client’s rights (and your sanity), PLEASE FILE A MEMORANDUM OF APPEAL TOGETHER WITH THE RECORD OF APPEAL. This is to be done even if there are no Grounds of Judgment made available and the HC has just summarily dismissed the matter.


The basis for the MOA will generally be the matters raised in the submissions that have been filed (together with the reply submissions). If you are struggling to formulate this (towards which you really shouldn’t), just upload your submissions into your favourite generative AI bot and ask it to prepare a MOA for you. PLEASE THEN FILE THIS INTO YOUR ROA. Your MOA ought to have a statement appended at the tail-end, outlining that you are reserving your rights to amend the MOA upon receipt of the GOJ from the HC.


Once the Grounds come out, file a Supplementary ROA that has the Grounds of Judgment and your Supplementary/Amended MOA within 21 days. This will then obviate your risk completely and you will be well-within the law.


I could pontificate about the various exceptions and caselaw discussed but let’s be honest: the simplest solution is always the most elegant. Occam’s Razor never fails and in practice, even more so.


Conclusion


Litigation is always an exercise in weighing opportunity cost.


Consider the relative ease with which a Memorandum of Appeal could be prepared and filed as-against the difficulties of (1) preparing a Motion and AIS to extend time, (2) attending to 2 Motions to strike-out your appeal, (3) Preparing submissions for all 3 motions, (4) Attending to the Hearing of all 3 Motions and (5) Having the appeals struck-out and being forced to explain this to your client.


Always think in terms of opportunity cost.


ALWAYS file a Memorandum of Appeal together with the ROA. When the Grounds are issued by the HC, prepare a Supp ROA with the Grounds and your further grounds of appeal.


This is the simplest, clearest solution to avoid nasty surprises at the Court of Appeal. A struck-out appeal is the bane of practice. A healthy dose of prevention (filing the MOA) is far better than attempting a cure (filing a Motion to regularise).    

 

GAVIN JAYAPAL


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