Owners Of The Ship OrVessel `Sasacom 1`V Bank Pembangunan MalaysiaBerhad


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CIVIL APPEAL NO. Q-02-3588-2010














[In the Matter of the High Court in Sabah and Sarawak


At Kuching]


Suit No. 22-80-2008-II




Bank Pembangunan Malaysia Berhad – Plaintiff




Owners Of The Ship Or Vessel


“ SASACOM I” – Defendant




Consolidated with Admiralty in Rem No. 27-02-2002-II




Bank Pembangunan Malaysia Berhad – Plaintiff




Owners Of The Ship Or Vessel


“SASACOM I’’ – Defendant




Abdul Wahab Patail, JCA Zaharah Ibrahim, JCA Mohamad Ariff Md. Yusof, JCA


Date of Judgment: 16th October 2014 GROUNDS OF JUDGMENT


[1] By a vesting order dated 27.09.2005, the Plaintiff Bank Pembangunan Malaysia Berhad (“the Respondent”) became vested with the rights and interests of Bank Industri & Teknologi Malaysia Berhad which had granted to the Defendant Owners Of The Ship Or Vessel Sasacom 1 (“the Appellant”) under a Facility Agreement dated 09.02.2001 a revolving bridging loan facility for the aggregate amount of RM14,000,000.00.




[2] Asserting that the Appellant defaulted in the loan repayments, the Respondent commenced an admiralty action against Sasacom I. Sasacom I was arrested. While under arrest, it sank. Subsequently, the Respondent commenced a civil suit to recover from the Appellant the amount outstanding under the 2 loans.


[3] The Appellant’s defence was that the revolving bridging loan was repaid by the assignment of sale proceeds from the construction of 6 patrol boats in Iraq, and the Respondent’s claim is barred by limitation. The Appellant counter-claimed against the Respondent for a full account of all the sale proceeds or proceeds under the letter of credit issued by the National Bank of Jordan which was assigned to the Respondent by the Appellant.


[4] The Appellant counter-claimed against the Respondent for damages to be assessed for the sinking of the Sasacom I while under arrest.


[5] The High Court entered judgment for the Respondent and dismissed the counter-claim by the Appellant as follows:




a) Allowed the Respondent’s claim against the Appellant in the consolidated suit with costs as follows:


i) In respect of Admiralty In Rem No. 27-02-2002-II. the Appellant do pay the Respondent RM4,487,572.54 with interest at 6% p.a. from 1.9.2002 until the date of Judgment and thereafter 8% p.a. until full settlement of the admiralty action.


ii) In respect of Suit No. 22-80-2008-II, the Appellant do pay the Respondent RM7,604,417.11 with interest at 6% p.a. from 17.4.2004 until the date of Judgment and thereafter at 8% p.a. until settlement for the suit action.


b) Dismissed the Appellant’s counter-claim in both actions (for the sum of RM6,116,714.58 for the overpaid amount to the Respondent and for damages for loss of use of the sunken vessel).”


[6] The Appellant appealed to this Court.




[7] On the date of hearing of the appeal on 18.10.2012, and after waiting all day, the parties requested the Court to proceed to consider the appeal and deliver decision on another date on the basis of the written submissions. The date 28.11.2012 was set down for decision.


Preliminary Objections


[8] Preliminary objections, notice of which were given on 11.10.2012, were raised by the Respondent. These are in relation to the Memorandum of Appeal and the copy of the judgment in the Supplementary Record of Appeal:


(a) The Memorandum of Appeal is defective;


(b) The judgment is defective and is not the judgment;


(c) Alternatively, the judgment is filed out of time and/or without leave.


Memorandum of Appeal


[9] The defect complained of is that the Memorandum of Appeal is undated.




[10] Responding to the preliminary objection, it was submitted for the Appellant as follows:


“2.0 Defective Memorandum of Appeal as it is undated.


2.1 It is submitted that the objection is a technical objection.


The Record of Appeal is dated as at …………… The


Respondent are not prejudiced or misled due to the inadvertent error to date the Memorandum of Appeal.”


[11] The issue is not whether the Respondent was misled or prejudiced, but whether the Appellant had filed a valid Memorandum of Appeal within the meaning of Rule 18 of the Rules of the Court of Appeal 1994.


[12] It is trite if a document is neither signed nor dated, it is a draft. It follows if it is dated but not signed it is a draft nevertheless. But if it is signed but not dated, it is signed but not intended to be in effect. It is at best a final draft. A party relying upon it takes the risk of the document being reneged upon. Only when a document is both signed and dated is it clothed will full legal existence and significance as from its date. Since the document purporting to be the




Memorandum of Appeal is undated, the Respondent is entitled to doubt whether it is safe to rely upon it as the Memorandum of Appeal and commit the considerable time, effort and costs required to prepare and respond to the grounds set out upon findings of fact after a full trial.


[13] The purpose the provision in Rule 18 to file a Memorandum of Appeal is to give the Respondent the opportunity to prepare and respond to the grounds laid out in the Memorandum of Appeal. It is a fundamental rule of justice. The Appellant cannot put forward without leave of the Court any other ground: See Rule 18 subrule (2). It is clear that a signed but undated Memorandum of Appeal fails to comply with Rule 18. The breach in this case is therefore a breach of a fundamental rule and cannot be excused in a court of justice on the grounds of inadvertent error or on the assertion it does not prejudice the Respondent.


[14] There is a plethora of cases that the compliance with the requirements of Rule 18 is mandatory. It is only necessary to refer here to Dato’ Seri Anwar Ibrahim v Tun Dr Mahathir Mohamad r20101 1 CLJ 444 CA it was held by the Court of Appeal that the




Memorandum of Appeal was defective on the grounds that it was in the English language, unsigned and undated. An application for leave to appeal to the Federal Court upon the sole question of law whether the grounds of judgments of the Court of Appeal and that of the High Court, which were in the English language, are null and void, having regard to the provisions of art. 152 of the Federal Constitution (“the Constitution”) and s. 8 of the National Language Act 1963/1967 (“the NLA 1963/67”) was dismissed. There was no application for leave to appeal on the question of the Memorandum of Appeal being unsigned or undated. (See Dato Seri Anwar Ibrahim v Tun Dr Mahathir Mohamad r20111 1 CLJ 1 FC).


[15] To accept as compliance with Rule 18 a Memorandum of Appeal that is undated would be to contradict the decision of the Court of Appeal in Dato’ Seri Anwar Ibrahim v Tun Dr Mahathir Mohamad (supra).


The Judgment


[16] The objections concern a further defect in the Record of Appeal to be filed under Rule 18. Rule 18 subrule 4(d) requires that a copy




of the judgment, decree or order appealed from be filed in the Record of Appeal.


[17] It was submitted for the Respondent that:


“3.1 The Judgment appealed against (contained in the Appellant’s Supplementary Record of Appeal dated 25.10.2010 at pp. 1 -2) is wrong and/or defective.


3.2 There was an Amended Judgment (pursuant to Order of Court dated 20.3.2012), which was extended to the Appellant/Defendant vide our letter dated 27.6.2012 (Tab F of Respondent’s Supplementary BOA) and a transmission slip showing such successful transmission to the Appellant/Defendant is also evident in our activity report (Tab G of Respondent’s Supplementary BOA).


3.3 Submit: This is not mere technicality or irregularity which is curable. By failing to include the Amended Judgment in the Record of Appeal, it means that there is no proper




Judgment from the High Court that can be appealed against.


[18] It was submitted for the Appellant that:


“3.0 No Judgment/Defective Judgment


3.1 It is acknowledged by the Appellant that the copy of the Judgment in the Supplementary Record of Appeal is an un-amended copy of the judgment.


It is not a case where a totally different copy of the judgment is enclosed in the Supplementary Record of Appeal as the Respondent would like this court to believe.


3.2 It is submitted that there is not much material differences between the un-amended and amended copy of the judgment. The differences between the un-amended copy of the judgment and the amended copy are as follows:




(i) amendment of the commencement of the interest on the sum of RM4,487,572.54 from 1st September 2001 to 1st September 2002;


(ii) amendment of the sum of RM7,604,417.11 to RM7,704,417.11. (a copy of the Amended Judgment is at TAB B of the Appellant BOA)


3.3 The amendment does not change the character of the judgment.”


[19] That the copy of the judgment in the supplementary Record of Appeal is not the judgment of the court was acknowledged. We are not persuaded with the submission that the differences can be described as minor. The copy of the amended judgment was produced, again improperly in the Bundle of Authorities confirm the changes were limited to those year 2001 to 2002 and RM7,604,417.11 to RM7,704,417.11.


[20] Production of the sealed order of the Court appealed from in the Record of Appeal is a perennial problem. Its availability is not solely




under the control of the Appellant. This is recognised when Practice Direction No. 1 of 1995 of the Court of Appeal was issued. It provides –


“Di bawah peruntukan kaedah 18(4)(d) Kaedah-Kaedah Mahkamah Rayuan 1994, seseorang perayu adalah dikehendaki menyertai satu salinan penghakiman, dekri atau perintah yang dirayu kes-kes rayuan di Mahkamah Rayuan.


Sehubungan dengan itu didapati kebanyakan perayu tidak mematuhi peruntukan tersebut dan ini melambatkan penetapan kes-kes rayuan di Mahkamah Rayuan.


Untuk menyegerakan prosiding rayuan di Mahkamah Rayuan, sebaik sahaja perayu menerima perintah termeterai dari Mahkamah Tinggi, perintah tersebut bolehlah difailkan sebagai rekod rayuan tambahan tanpa sebarang permohonan.


Sebagai alternatif, perayu dibenar menyerahkan salinan penghakiman, dekri atau perintah yang dirayu pada hari




perbicaraan rayuan di dalam Mahkamah Terbuka. Pihak Penentang sewajarnya diberitahu di atas penyerahan ini.”


[21] See also Megat Naimuddin Dato’ Seri (DR) Megat Khas v Bank Bumiputra Malaysia Bhd. (2002) 1 CLJ 645 FC.


[22] Since as an alternative it is allowed to produce the judgement on the day of hearing itself, we find no merit in the ground of objection.




[23] Notwithstanding dismissal of the ground of objection on the copy of the judgement, the objection that the undated Memorandum of Appeal results in the Record of Appeal being defective remains valid.


[24] In Dato’ Seri Anwar Ibrahim v Tun Dr Mahathir Mohamad


(supra), the Court of Appeal struck out the unsigned undated purported Memorandum of Appeal in the English language and dismissed the appeal.




[25] We, therefore, allow the preliminary objection on the first ground, strike out the purported Memorandum of Appeal and dismiss the appeals with costs, fixed at RM10,000.00.






Court of Appeal, Malaysia Putrajaya


Dated: 7th November 2014


Counsels/Solicitors –


For the Appellant: Mr. Kenny Yi Messrs Yi & Co Lot 963, 1st Floor Jalan Kwang Tung 98000 Miri, SARAWAK


For the Respondent: Mr. Albert Tang Yew Liong (together with Mr. Jong Yee Ling) Messrs Albert Tang Advocates No. 31, 1st Floor, Jalan Pisang 93150 Kuching, SARAWAK



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