DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. N-02-913-2001
DATO’ VALUMALAI @ M.RAMALINGAM
S/O V.MUTHUSAMY … PERAYU
DATO’ DR. TAN CHIN WOH … RESPONDEN
[Dalam perkara mengenai Mahkamah Tinggi Malaya di Seremban
Guaman Sivil No. 22-69-1997
Dato’ Tan Chin Woh … Plaintif
1. Dato’ Yalumalai @ M.Ramalingam s/o V.Muthusamy
2. Wong Kan Noi @ Wong Keng Yau
3. Syarikat Asohan Sejati Sdn Bhd. … Defendan-Defendan
(Disatukan dengan Guaman Sivil Mahkamah Tinggi Malaya
di Seremban No. 22-1-2001)
Dato’ Tan Chin Woh … Plaintif
Dato’ Yalumalai @ M.Ramalingam
s/o V.Muthusamy … Defendan]
Coram: Tengku Baharudin Shah Tengku Mahmud, JCA Zainun Ali, JCA Mohd Hishamudin Yunus, J.
We upheld the preliminary objection raised by the respondent and consequently dismissed this appeal with costs. We also ordered the deposit to be paid to the respondent towards the account of costs.
2. The respondent objected to the appeal for being incompetent on the ground that the notice of appeal was served on his former solicitors after the expiration of the time specified under rules 6 and 12 of the Rules of the Court of Appeal 1994 (the RCA). For ease of reference the rules are as follows:
“6. Service of notice of appeal.
Notice of appeal shall be served on all parties directly affected by the appeal or their solicitors respectively within the time limited for the filing of the notice of appeal. It shall not be necessary to serve parties not so affected.”
“12 Time limit for appeal.
No appeal shall, except by leave of the Court, be brought after the expiration of one month –
(a) in the case of an appeal from an order in Chambers, from the date when such order was pronounced at the hearing;
(b) in the case of an appeal against the refusal of an application, from the date of such refusal;
(c) In all other cases, from the date on which the judgment or order appealed against was pronounced.”
4. Learned counsel for the respondent referred us to the notice of appeal dated 12.10.2001 filed on the same day against the decision of the High Court made on 13.9.2001. The said notice of appeal was only served on the respondent’s former solicitors on 15.10.2001. He submitted that the notice of appeal was filed on the last date for appeal but served out of time because the RCA requires both filing and service to be affected within one month from the date on which the order was pronounced.
5. The appellant contended that service was effected within time. He relied on the case of Soo Keng Hian v. American International Assurance Co. Ltd. (1996) 1 MLJ 191 CA which apparently computed the last date for filing an appeal against the decision made on 3.9.1994 was 4.10.1994 and not 3.10.1994. He submitted that service of his notice of appeal on Monday 15.10.2001 complied with the law as the last day for doing so (14.10.2001) was a Sunday.
6. In reply, learned counsel for the respondent argued that in computing time by calendar months, the time had to be reckoned by looking at the calendar and not by counting the days. So the one month period commenced from the day the order was pronounced to the day numerically corresponding to that day in the following month, less one (see Jeow Fong Mei v. Chong Mee Yoke (1996) 1 MLJ 387 CA). Therefore, in this case, the decision being made on 13.9.2001, the final
day for service was 12.10.2001 which was a Friday. He stressed that under rule 12(c) of the RCA time starts to run from the date on which the judgment or order appealed against was pronounced.
7. In construing the provision relating to appeals, one must not ignore the provision under which it is commenced. This is found in rule 5 of the RCA which relevant part reads:
“5. Appeal to be by re-hearing on notice.
(1) Appeals to the Court shall be by way of re-hearing and shall be brought by giving notice of appeal.
Rule 5(1) must be read with rules 6 and 12. In our view, when read together, the law is that an appeal is not ‘brought’ until the notice of appeal is both filed and served. The one act without the other renders the appeal incompetent (see Gurbachan Singh v. Seagrott & Campbell (No.2) (1962) 28 MLJ 370 C.A.; Tan Ting Kok v. Cheong Lep Keen & Anor (1969) 1 MLJ 153 F.C.; and Tong Lee Hwa & Ors v. Malayan Banking Bhd. (1978) 1 MLJ 257). The rules of court therein considered are similar if not in pari materia with the aforesaid present rules of the RCA. This court is therefore bound by these decisions which are pertinent to the issue at hand, that is, whether the appeal is competent if service was not affected within the prescribed period of one month.
8. The crucial words to be considered are “one month…..from the
date on which the judgment or order appealed against was pronounced” found in rule 12 (c) of the RCA. The word ‘month’ is defined in the Interpretation Acts 1948 and 1967 to mean a month reckoned according
to the Gregorian calendar. The phrase “calendar month’ was judicially considered in Migotti v. Colvill (1879) 4 C.P.D. 233 where Brett L.J. states the principle clearly in that in computing time by calendar month the time must be reckoned by looking at the calendar and not by counting the days.
9. This principle is adopted in the definition of the same term in Words and Phrases Legally Defined (2nd Edition) at page 291 as follows:
“The term a calendar month is a legal and technical term ….
The meaning of the phrase is that, in computing time by calendar months, the time must be reckoned by looking at the calendar and not by counting days; and that one calendar month’s imprisonment is to be calculated from the day of imprisonment to the day numerically corresponding to that day in the following month less one (Migotti v. Colvill (1879) 4 C.P.D. at p. 238 CA, per Brett L.J).”
This court applied this definition when determining the validity of the termination of a sale and purchase agreement in Jeow Fong Mei v. Chong Mee Yoke (supra) when periods of three months plus an extention of two months from 14.7.1993 were given for completion of the sale transaction. Delivering the judgment of the court, Abdul Malek Ahmad JCA (as he then was) held that for the first three months from 14.7.1993, the period ended on 13.10.1993. On that premise the extention period could not commence on that date as the expiry would only be at midnight of that day, so the extention period only commenced on 14.10.1993, hence the termination letter dated 13.12.1993 was certainly one day too early. It was also held that it
goes against common sense and logic for one period to end and another to commence on the same day.
10. Applying the same principle and reasoning to this case, the period of one month as stipulated in rule 12 (c) which commenced from the date the judgment was pronounced on 13.9.2001 ended on 12.10.2001 which according to the 2001 calendar (see exh. DMR-3 of the appellant’s affidavit) fell on Friday, a working day. As it was not disputed that the notice of appeal was only served on the respondent’s solicitors on 15.10.2001 the service was clearly out of time.
11. As stated earlier, an appeal is not brought to this court until the notice of appeal is both filed and served, the one act without the other renders the appeal incompetent. Therefore, the failure to serve the notice of appeal on the other party within time is not an irregularity that can be cured. See Majlis Perbandaran Kangar v. Sonati Development Corp. Sdn Bhd. (2007) 1 MLJ 133 . This appeal is therefore incompetent and must necessarily be and was accordingly dismissed.
Dated : 19.4.2010.
TENGKU DATO’ BAHARUDIN SHAH BIN TENGKU MAHMUD Judge
Court of Appeal.
Appellant in person.
Yusof Khan Ghows for respondent (Sather Thulasi with him) – Solicitors : Tetuan Affendi Zahari).