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MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK AT SIBU
[CIVIL APPEAL NO. SBW-12BNCVC-2/1-2018]
BETWEEN
AND
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GROUNDS OF DECISION
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8. The duty to file and serve the Record of Appeal within the
stipulated time is mandatory, as set out in Order 55 rule 4(1) of
the Rules of Court 2012. Similarly, it is mandatory to send the
draft index to the other side before the Record of Appeal is
compiled: Order 55 rule 4(4) of the Rules of Court 2012. In both
instances, the word “shall” is used in the respective rules. As
was held in Abdul Hamid Mohd Amin v Ramacon Corporation
Sdn Bhd [2016] 3 CLJ 111, the “shall” provisions “must be
strictly complied with and adhered to save under exceptional
circumstances”.
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12. Indeed, Order 55 rule 4 (2) of the Rules of Court 2012 provides
that the Grounds of Judgment and Notes of Proceedings can be
“filed by way of a supplementary record of appeal without leave
of the High Court.”
14. Learned counsel for the Plaintiff drew the Court’s attention to
Ku Mohd Shabri Ku Bahadot v Yap Wing Shun & Anor [2017] 1
LNS 1198, where it was held:-
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15. As for the Defendants’ contention that there was mere technical
non-compliance and their reliance on Order 1A of the Rules of
Court 2012, the recent decision of Lee Heng Cheong J in Chieng
Chuang Construction Sdn Bhd v Howdah Enterprise Sdn Bhd
[2018] 1 LNS 26 is instructive: -
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17. In Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan
Iskandar Al-Haj v Datuk Captain Hamzah Mohd Noor & Another
Appeal [2009] 4 CLJ 329, the Federal Court delivering its
judgment through Zaki Tun Azmi CJ held:-
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Counsel:
For the Respondent - Clement Wong Teck Hoo; M/s Clement & Co