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You Shall Not Pass! – The Strict Conditions of Appeal under Section 96 Courts of Judicature Act 1964

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Mr Shahul Hameed Amirudin, together with Ms Idza Hajar Ahmad Idzam, Bailey Leong Pui Yee and Lee Sheen Yee, from ZUL RAFIQUE & partners’ Litigation team, has successfully resisted an application for leave to appeal to the Federal Court of Malaysia (‘Leave Application’) which was filed against its client, Telekom Malaysia Berhad (‘the Respondent’) in the case of KLK Electronic Sdn Bhd v. Telekom Malaysia Berhad.

The Applicant was awarded with the contract for the supply, delivery and the provision of engineering services for battery system for the Respondent. The Applicant had assigned all of its rights for the proceeds of the contract to Affin Bank Bhd (‘Affin Bank’) and was later wound up by Lembaga Hasil Dalam Negeri (LHDN). The Applicant commenced an action against the Respondent in High Court for some payment of money for the sums due and owing by the Applicant to Affin Bank as a result of the purported breach of contract committed by the Respondent. The High Court granted an order in favour of the Applicant premised on the grounds of “mistake” and Respondent’s failure to prove payments were made. Dissatisfied with the decision of the learned High Court Judge, the Respondent appealed to the Court of Appeal where the Respondent’s appeal was allowed and the decision of the High Court was set aside. Hence, this Leave Application which was filed at the Federal Court.

The Applicant had in its application for leave posed inter alia the following questions of law:-
 
  1. When a document is held inadmissible as evidence by the High Court for non-compliance to section 90A of the Evidence Act 1950[1] and the Court of Appeal reversed such decision, whether as a matter of law, the case should be reverted to the High Court to determine its admissibility to allow the Plaintiff’s counsel the opportunity to cross-examine the witness of such document;
  2. In deciding a claimant has failed to meet the burden of proof in breach of contract for recovery of money action, can the Appellate Court reverse and substitute the factual findings of the Trial Court on the basis that a claimant fails to prove the negative fact despite the decision of the Federal Court in Nanyang Development Sdn Bhd v How Swee Poh[2] that a negative fact is incapable of proof;
  3. Whether as a matter of law, when a Trial Judge makes reference to certain words in a colloquial manner without any reference to a specific provision of an Act, can the Appellate Court then make reference to a specific provision of an Act and thereafter reverse the finding of the Trial Judge on the basis that the cause of action which relates to a specific provision of an Act was not pleaded?; and
  4. When the Appellate Court admits an evidence which was not admitted by the Trial Judge on the basis that section 90A of the Evidence Act not complied with, the Appellate Court, as a matter of law, must send the matter for retrial to allow the other party to complete the cross-examination on evidence which it relates to.

The Applicant’s solicitors has submitted that both requirements laid down in Section 96(a)[3] of the Courts of Judicature Act 1964 (CJA) as well as the principle laid down in the Federal Court case of Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co. Ltd. V Anor & Other Applications[4] have been fulfilled. On the other hand, the Respondent contended otherwise.

Having heard both parties’ submission, the Federal Court is of the view that the threshold requirement under Section 96 of CJA has not been satisfied by the Applicant, and had unanimously dismissed the Applicant’s Leave Application.

For more insight into this area of law, please contact our Partners in Litigation Practice Group:
 
[1] Admissibility of documents produced by computers, and of statements contained therein
[2]  [1970] 1 MLJ 145
[3] Subject to any rules regulating the proceedings of the Federal Court in respect of appeals from the Court of Appeal, an appeal shall lie from the Court of Appeal to the Federal Court with the leave of the Federal Court: (a) from any judgment or order of the Court of Appeal in respect of any civil cause or matter decided by the High Court in the exercise of its original jurisdiction involving a question of general principle decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to public advantage.
[4] [2011] 1 MLJ 25