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Case Update: Pertinent Federal Court decision on the number of notice of appeals filed against a decision arising from more than one appeals or applications heard together

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15 June 2022

CIVIL PROCEDURE
Notice of Appeal – Leave of Court – Deepak Jaikishan v. A Santamil Selvi Alau Malah – Court of Appeal – Defective – Bad in Law

Khairy Jamaluddin v Dato’ Seri Anwar Bin Ibrahim
[2022] 1 LNS 1072 | Federal Court
- see the grounds of judgment here

Facts This appeal relates to the Appellant, Khairy Jamaluddin’s Notice of Appeal to the Court of Appeal which was struck out after the Court of Appeal upheld the Respondent, Dato’ Seri Anwar’s preliminary objection on the grounds that the Notice of Appeal was ambiguous, invalid and  unlawful as it was filed against two separate orders issued by the High Court. In this case, the Appellant filed an application to amend the Re-Amended Defence (‘Amendment Application’) after the trial on the evidence had been concluded. After the hearing of submissions, the learned trial judge delivered his oral decisions in respect of the Amendment Application and the trial. The Amendment Application was dismissed and the Respondent’s claim in damages for defamation was allowed with costs. Separate orders were issued by the High Court in respect of the decision after trial and the decision dismissing the Amendment Application. The Appellant, dissatisfied with the two decisions, filed a single Notice of Appeal to the Court of Appeal. After the respondent had given written notice to the Appellant of his intention to raise a preliminary objection to the Notice of Appeal, the Respondent filed a Notice of Motion in the Court of Appeal to strike out the Notice of Appeal. The Court of Appeal agreed with the Respondent that the Notice of Appeal was defective and bad in law and struck out the Notice of Appeal. Subsequently, the Appellant obtained leave of the Federal Court to appeal.

Issue 1. Whether the Federal Court’s decision in Deepak Jaikishan v. A Santamil Selvi Alau Malay [2017] 4 MLJ 11 can be interpreted as prohibiting the filing of a single Notice of Appeal in relation to the following circumstances:
 
a. Where there is the sole plaintiff and sole defendant in the suit concerned;
 
b. Where the single judgment delivered on a date at the end of the whole trial in a defamation suit pertains to the judgment favouring the plaintiff’s claim which included the rejection of the application by the defendant to amend the re-amended defence of fair comment; and
 
c. Where the single Notice of Appeal specified in the said appeal pertains to the whole of the said judgment including the matter decided pertaining to the said application to amend, taking into consideration the adoption by the Federal Court of the opinion of the Court of Appeal in the written judgment of the latter emanating from the same case.

Held In allowing the appeal, the Federal Court held that the decision in Deepak Jaikishan should not 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 Rules of the Court of Appeal 1994. The Federal Court agreed with the opinion of the Court of Appeal 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. Further, 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. On a close scrutiny of the Notice of Appeal, the Federal Court was satisfied that the two decisions appealed against have been concisely and clearly identified. As the two decisions have been clearly set out, there cannot be said to be any ambiguity as to what decision was being appealed against. Therefore, we do not think it can be said that the respondent has suffered any prejudice or miscarriage of justice. Hence, the appeals were allowed with cost and remitted to the Court of Appeal to be heard on the merits.

Zul Rafique & Partners
{15 June 2022}

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