There are solicitors that genuinely enjoy raising preliminary objections. They refuse to address the merits of an application, insisting instead that technical rules drawn-up in the 90s ought to trump substance.
The law is, undoubtedly, very much the richer for adjectival law. However, substantive issues must trump procedure. This ought to apply perforce when opposing counsel isn't prejudiced by a procedural issue.
A favourite of pedants would be the raising of preliminary objections with regard to Notices of Appeal.
In certain scenarios, the High Court may issue several orders in one sitting. A simple example may be seen in Deepak Jaikishan v Santamil Selvi [2017] 4 MLJ 11. Here, the High Court allowed 8 applications to strike-out. One Notice of Appeal was filed, despite there being 8 separate orders rendered.
Motions were filed at the COA to strike-out the appeal. The crux of the motions would be that an individual Notice of Appeal ought to have been delivered. The motions were allowed by the COA and the appeal was struck. The Federal Court sustained the COA's decision.
The upshot of Deepak Jaikishan
As a result of the decision in Deepak Jaikishan, it became customary for solicitors to file several Notices of Appeal for inter-related appeals. This would inevitably clog the Court's docket and increase the number of cases. Motions to be heard together were rendered commonplace.
In Khairy Jamaluddin v Dato' Seri Anwar Ibrahim (heard together with Guinness Anchor Marketing v Man Seng Trading [Civil Appeals No.:02(f)-43-04/2019(W) and 03-2-08/2020(N) respectively], the Federal Court revisited Deepak Jaikishan and provided welcome clarification.
The decision in KJ v DSAI/ Guinness Marketing v Man Seng
The Federal Court, after narrating the facts, undertook a revisit of Deepak Jaikishan:
Deepak Jaikishan - Revisited
[20] It is, we think, necessary to revisit the salient facts and the pronouncement of this Court in Deepak Jaikishan.
Vernon Ong FCJ went on to state that Deepak Jaikishan must be read in light of its peculiar facts:
[27] In our considered view, the opinion of this Court expressed in Deepak Jaikishan should be read in the light of the peculiar facts of that case. There were altogether eight distinct and separate applications filed by nine defendants, each of the eight distinct applications were supported by the affidavits by different deponents on different grounds in support, the eight applications were heard together by the learned judge, the outcome of the eight applications were delivered in a single decision by the learned judge which did not identify the separate orders issued by the High Court, the notice of appeal in question stated in vague and uncertain terms that it was an appeal ‘… against the whole of the said decision granting the Order-In-Terms of all the Defendants’ applications …’.
[28] It is important to bear in mind that the primary objective of r 5(3) of the RCA 1994 is to enable the opposing party to be properly informed of the case they have to answer. If the opposing party is unable to fathom which decision or which part of a decision is being appealed against, it would lead to uncertainty and misapprehension on the part of the opposing party and as to what points they were required to answer to. Such a situation would undoubtedly cause prejudice and a miscarriage of justice to the opposing party.
His Lordship also noted, from a reading of the COA's Grounds in Deepak Jaikishan, that the Court of Appeal was not opposed to a singular Notice of Appeal. What would be of the imperative would be for said Notice of Appeal to clearly outline what is being appealed-against:
The Court of Appeal then went on to opine in para. [31] that “[w]hat the appellant should have done was either to file 7 separate notices of appeal or alternatively to file one notice of appeal setting out the details of each decision appealed against.” More pertinently, the Court of Appeal went on to say that “[o]n our part we take the view that the second option is the more practical option as it will avoid the filing of multiple records of appeal.
The upshot of the Federal Court's decision
The Federal Court then concluded as follows:
[30] In the light of the abovementioned observations, we do not think that the decision of this Court in Deepak Jaikishan should be read as laying down a strict and absolute rule that whenever there is more than one decision arising from separate interlocutory applications, the filing of a single notice of appeal is not in compliance with the RCA 1994. We concur with the opinion of the Court of Appeal (see para. [29] above) that the filing of a single notice of appeal is permissible subject to a caveat - all the decisions appealed against must be clearly and concisely set out with the relevant details and particulars of each decision in the notice of appeal.
[31] In situations where, a preliminary objection is taken against a notice of appeal in the Court of Appeal or where a motion is filed to that effect, it is therefore incumbent upon the Court of Appeal to scrutinise the notice of appeal in question. It is for the Court of Appeal to consider whether the appeal relates to a single decision, or more than one decision, or is against part of the decision or decisions given; and if so, whether the decisions in question have been clearly and concisely identified. There should not be any ambiguity or doubt relating to the decision appealed against.
The outcome in KJ v DSAI/Guinness Marketing v Man Seng
The Federal Court allowed both appeals and directed that the matters be remitted to the Court of Appeal, for a determination on the merits:
[35] For the foregoing reasons, Questions (a), (b) and (c) of the 1st Appeal are answered in the negative. Questions (1) of the 2nd Appeal is answered in the affirmative. In the circumstances, we do not think that it is necessary to answer Questions (2) to (4). The 1st Appeal and the 2nd Appeal are therefore allowed with costs. We ordered the two cases to be remitted to the Court of Appeal to be heard on the merits.
Conclusion
From the facts narrated above, it is apparent that the Federal Court is departing from meritless pedantry. Should a High Court convey two (or more) decisions on the same date, it is would appear that a party is at liberty to deliver one Notice of Appeal.
However, said Notice of Appeal must clearly outline all decisions that are being appealed-against. Sufficient details must be provided, so as to enable the opposing party to understand the nature of the appeal.
Whither the pedant? Wither the pedant.
GAVIN JAYAPAL
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