PROCEDURE OF APPEAL FROM HC TO COA ‘+ An appeal to the COA is commenced by filing four copies of notice of Appeal in Form 1 First Schedule of the Rules of The Court of Appeal, 1994 and lodging a sum of RM 500 ‘as security for cost of appeal at the registry of the High Court where the decision was pronounced, within one month from the date the decision of the HC was pronounce. ‘+ At the date of filing the notice of appeal, appellant must sent one copy by registered post to the Registry of the court of appeal. ‘+ May appeal the whole or part of the decision and the Notice of Appeal must state whether the whole or part only and what part of the judgment is complained of. ‘+ Notice of appeal must be serve on all parties to the action who are affected within the time limited for the filing the notice of appeals. ‘+ Not necessary for the respondent to give notice of appeal. ‘+ Ifrespondent intends upon hearing of the appeal to contend that the decision of the High Court should be varied, he may at any time entry of the appeal, give notice of cross — appeals and not more than 10 days of the service of the record of appeal, give notice of ‘cross appeal specifying the grounds thereof and file and serve it on all parties who are effected. ‘+ R8 of Rules of Court of Appeal : notice of cross appeal shall be in Form 2 of the First ‘Schedule of Rules of The Court of Appeal. ‘+ The appellant must file and serve on all parties to the appeal a record of appeal within 8 weeks of the entry of the appeal. ‘©The record of appeal will consist of Memorandum of Appeal in Form 3 of The Rules of The Court of Appeal. ‘+ Memorandum of appeal must state the grounds of objections to the decision appealed against and specifying the points of law or fact which are alleged to have been wrongly decide, such grounds to be numbered consecutively. Jaafar Bin Ibrahim v Gan Kin - the memorandum of appeal ran to 13 pages and was more like @ written submission and the court held that it was not in compliance of rule 62 (1) of The Rules of The Federal Court. ‘+ Documents attached to the memorandum of appeal , copies of: © Documents in the nature of pleadings © Judge notes of hearing of the cause in which the decision appealed against was given Copies of all affidavits and all documents put in evidence Copy of judgment appealed from Copy of judgment or ground of decision. Copy of notice of appeal + Rule 18 (7) of The Rules of The Court of Appeal - filing of all documents should be done within the prescribe time.Bhagwan Singh v Wona Sin Chong & Anor - the absence of the ground of judgment shall not prevent the appellant from proceeding with his appeal. ‘* In cases where appeal record cannot be filed within 8 weeks from the date of entry appeal it is a must that leave must be obtained from the COA by way of notice of motion to file and serve the appeal record out of time or else the appeal may be dismissed. SUMMARY OF APPEAL PROCEDURE TO THE COA 1. 4 copies of notice of appeal in Form 1 of Rules of Court of Appeal to be filed at the registry where the decision is appealed from and sum of RMS00 to be lodged as security for costs. Serve notice of appeal on the respondent within the time limited for appeal (1 month) 2. Sent a copy of notice of appeal by registered post to the registry of the COA 3. File 4 copies and serve the appeal record within 8 weeks from the date of filing the notice of appeal. If this could not be achieved, then follow practice direction 1 of 1996. 4, Filing fees for notice of appeal rm 300 5. Filing fees for record of appeal with the memorandum of appeal RMSO. DICTION OF COA ‘© S67 of Court Judicature Act - the court of appeal has the jurisdiction to hear and determine the appeals from any judgment or order of any of the HC in any civil cause or ‘matter, whether made in exercise of its original jurisdiction or appellate jurisdiction. ‘+ There is a further right to appeal from the High Court to the Court of Appeal in respect of the decision of the subordinate court ‘+ Section 67 Courts of Judicature act makes provision for further appeal to the COA from the decision of the HC. ‘+ Section 68 ~ no appeal should be brought to the COA in this following cases: ‘+ Amount of the subject matter of the claim less than 1m250k ‘+ Judgment is made by consent of the parties ‘+ Judgment relates to the cost only. ‘+ Judgment of the HC expressly dectared to be final. + Leave to appeal ‘+ Section 68 Court Judicature Act — the applicant may apply to the COA by ex parte notice of motion before the expiration of the time limited for bringing the appeal ‘+ Inpractice it is made by way of inter parte notice of motion . ‘+ Where the leave has not be obtained to appeal, the appeal is incompetent and will be dismissed,The Court of Appeal also has powers conferred by section 24A on the He under the provision relating to references under Order of HC. All appeals to the Court of Appeal must be made subject to section 68 of the Courts of Judicature Act and any other written law regulating the terms and conditions upon which such appeals shall be brought. All appeals to the Court of Appeal must be by way of rehearing. Perumal A/L_Angamuthu v Sowntharakowry A/P Shanmungam — COA considered the circumstances where the leave required, Appeals to the COA are by way of rehearing Has wide power as to amend or otherwise together with full discretionary power to receive further evidence by oral examination in court, by affidavit or deposition in court. May drew inferences fact and give any judgment and make order which ought to have been given or made and make such further order as case required. BBMB v Majlis Amanah Rakyat ~ as a general rule, an appellate court will only interfere and exercise its discretion if the court below had clearly acted on some wrong principle or comtted some error or fail to consider all matters which ought to be considered. Rule 12 of The Rules of The Court of Appeal — time limit to appeal is 1 monthADDUCING FRESH EVIDENCE ‘fresh evident might be defined as evidence that existed at the time of the trial, but for various reasons could not be put before the court. ‘© General rule: where a party had called no evidence in the court below, the appellate court would not allow him to adduce fresh evidence Lim Hee Chuan v Toh Phaik the general principle courts are reluctant to give any litigant a second chance to adduce at later stage, evidence that was in his possession at the lower court, ‘+ However section 69(2) of the Court Judicature Act states that further evidence may be given without leave on interlocutory applications or in any case as to matters which has occurs after the date of the decision from which the appeal is brought. ‘+ Principle on which evidence will be allowed was set out in Ladd v Marshall a) Evidence could not have been obtained with reasonable diligence for use of the trial b) Where evidence if given would probably have an important influence on the result of the case ©) Where the evidence is capable of belie incontrovertible jaginder Singh v Tara Rajaratnam: in an unprecedented action, the pf sought to set aside or vary the judgment of a previous action heard inter parte, on the grounds of discovery of new evidence. The court stated that the present writ amounted to reopening the case by way of introducing fresh evidence, the issues of a matter which had been laid to rest by the Privy council. the court stated that it was an abused process of the court to grant the pf's wish to have a second bite at the proverbial apple. The writ was struck out with cost. ipparently credible although it need not be ‘+ There are two types of fresh evidence. © Evidence on matters which occurred before the date of the decision + Aparty wishing to adduce such fresh evidence during an appeal from a judgment given after trial or hearing on the merit must obtain leave from the Court of Appeal and leave would be given on special grounds only. * Section 69 (3) of the Courts of Judicature Act, 1964 explain that upon appeals from a judgment, after trial or hearing of any cause or matter Upon the merit, the further evidence, save as to matters subsequent as aforesaid, shall be admitted on special grounds only, and not without leave of the Court of Appeal.+ Also, R 7 (3) of the Rules of Court of Appeal stated that, upon appeals from a judgment, after trial or hearing of any cause or matter upon the merits, such further evidence, save as to matters subsequent as aforesaid, shall be admitted on specials ground only, and not without the leave from the court.! The party (usually the appellant) who wishes to adduce fresh or further evidence on matters Which occurred before the date of the decision appealed against but which was not available then at the hearing of the appeal against but which not available then at the hearing of the appeal at the Court of Appeal that: ‘+The fresh evidence was either not available to the party at the hearing before the High Court / subordinate court or that reasonable diligent would not have made it available. © The fresh evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of the High Court / subordinate court. + R7 (BA) of the RCA state that the application should be made to the court hearing the appeal which is the Court of Appeal. ‘+ evidence on matters which occurred after the date of the decision appealed against, © However, a party wis! to adduce such fresh evidence during an appeal from order in relation to an interlocutory application may do so without leave. Section 69 (2) of CJA stated that ‘the further evidence may be given without leave on interlocutory applications. Tsoi Ping Kwan v Loh Lai Ngoh & Anor: Court of Appeal rules that the third motion was taken cout by the first respondent seeking to admit three documents by of further evidence to show repayment. It was opposed by the appellant on the ground that the test laid down in Ladd v Marshal had not been met. * Pang Kong Leng. (2005). Legal Gulde To Civil Appeals Malaysia. Kuala Lumpur: Commerce Clearing House (Malaysia) Sdn Bhd, 954 ALLER 745