ASSIGNMENT 1 CIVIL PROCEDURE REENUSORUBIYE D/O RAMUNAIDU 012019020311 MARYAM KARAMBA 01201809
PROCEDURE TO COMMENCE AN APPEAL IN CIVIL CASE (ORDER 56 of RULES OF COURT 2012)
Appeals from Registrar of High Court to the Judge in Chambers. (O. 56, Appeals from High Court to Court of Appeal. (O. 56, r. 2) Choong Su Kong v Sia Hiong Tee S67 and SO of Court Judicature Ac f
At the hearing of the appeal fresh evidence shall not be admitted unless the Judge is satisfied that Except so far as the Court may otherwise direct, an appeal under this rule shall not operate as a stay of the proceedings in which the appeal is brought. Appeal from Judge (O. 56, r. 2) Subject to section 68 of the Courts of Judicature Act 1964, a party may appeal fo the Couri of Appeal against any judgment, order or decision made by a Judge in Chambers. (0. •An appeal shall lie to a Judge in Chambers from any judgment, order or decision of the Registrar of the High Court. - The appeal shall be brought by serving on every other party to the proceedings in which the judgment, order or decision was given or made a notice in Form 114 to attend before the Judge on a day specified in the notice the notice shall be filed within 14 days affer the judgment, order or decision appealed against was given or made, and shall be served not less than 15days before the date fixed for the hearing of the appeal.
RULES OF COURT 2012
4 copies of notice of appeal in Form 1 of Rules of Court of Appeal Filing fees for record of appeal with the memorandum of appeal Rm50. Serve notice of appeal on the respondent within the time limited for appeal (1 month) Filing fees for notice of appeal Rm 300 3 Sent a copy of notice of appeal by registered post to the registry of the COA. serve the appeal record within 8 weeks from the date of filling the notice of appeal
Cross-appeal Rule 8(1) of the Rules of the Court of Appeal State that when the amount or value of the subject matter of the claim (exclusive of interest) is less than RM250,000, except with leave of the Court of Appeal. if a respondent intends fo argue that the decision of the High Court should be varied at the hearing of the appeal, he may, af any time affer the entry of the appeal and not more than fen days affer the service on him of the record of appeal, give notice of cross-appeal specifying the grounds thereof, to the appellant.
JURISDICTION OF COURT OF APPEAL
S67 of Court Judicature Act the court of appeal has the jurisdiction fo hear and determine the appeals from any judgment or order of any of the HC in any civil cause or matter, whether made in exercise of its original jurisdiction or appellate There is a further right to appeal from the High Court to the Court of Appeal in respect of the decision of the subordinate court • Section 67 act makes provision for further appeal to the COA from the decision of the HC.
MATTERS WHICH ARE NON- APPEALABLE TO THE COURT OF APPEAL
Section 68 of the Courts of Judicature Act 1964 When the amount or value of the subject matter of the claim (exclusive of interest) is less than RM250,000, except with leave of the Court of Appeal Where the judgment or order relates fo costs only, which by law are left to the discretion of the Court, except with the leave of the Court of Appeal; Where by any written law for the time being in force, the judgment or order of the High Court is expressly declared to be final S68(3) No appeal shall lie from a decision of a Judge in Chambers in a summary way on an interpleader summons, where the facts are not in dispute, except by leave of the Court of Appeal, but an appeal shall lie from a judgment given in court on the trial of an interpleader issue.
Ishak sues Bala for battery and court awarded Ishak the general sum of RM230,OOO. Ishak is not happy with the sum awarded and appeals for a sum of RM400,OOO. Bala is also dissatisfied with the decision and wants to appeal as he contends that Ishak is contributorily liable for the battery. Bala cross appeals for a sum of RM300,OOO. Explain as to Ishak's and Bala's appeals.
Whether Ishak’s appeal is considered as valid appeal under Order 56 Rule 1 of Rules of Court 2012 Whether Bala can make a cross-appeal under Order 56 Rule 2 of the Rules of Court 2012 since Bala was dissatisfied with the decision Whether Bala could set aside the judgment made by the High Court and apply for cross appeal in the Court of Appeal
Order 56 Rule 1 The appeal began with the registrar of the high court and progressed to the judge in chambers. APPEAL TO DISTRICT JUDGE IN CHAMBERS If a party is dissatisfied with a Registrar's decision, the party may appeal to a District Judge, who will hear the appeal in chambers. To file an appeal, no permission from the Court is required. To apply for appeal, the notice of appeal in Form 112, Appendix A of the Rules of Court must be issued within 14 days following the Registrar's decision.
APPEAL TO HIGH COURT JUDGE IN CHAMBERS The aggrieved party may file an appeal with the High Court Judge sitting in Chambers . The party must first get permission. Any party filing an appeal must notify the other parties of a specified day and time for their appearance before the High Court Judge. This Notice of Appeal (Form 113, Appendix A) must be filed within 14 days of the Registrar's judgement, order, or decision and delivered to all parties within 7 days of its issuance.
Rule 8(1) of the Rules of the Court of Appeal 1994 state that it is not necessary for a respondent to give notice of appeal; however, if a respondent intends to argue that the decision of the High Court should be varied at the hearing of the appeal, he may, at any time after the entry of the appeal and not more than ten days after the service on him of the record of appeal, give notice of cross-appeal specifying the grounds thereof, to the appellant.
If a party receives a judgement from a judge in chambers, the party has the right to appeal to the Court of Appeal. Any party or respondent to an appeal may file a notice of cross appeal in the High Court within fourteen days of receiving the record of appeal and serving a duplicate copy of the notice on the appellant. The Court has the authority to allow any changes to the notice of cross-appeal as it sees suitable. In order for the Court of Appeal to consider any appeals, leave must be granted, subject to
Procedure of from HC to COA
In the case of Kabushiki, the plaintiff filed a lawsuit for specific performance of an agreement to buy shares in a company. The High Court ruled that a valid and binding contract had come into existence between the plaintiff and the first defendant, and awarded damages instead of specific performance. In response to this, the first defendant filed a notice of cross-appeal in order to set aside the decision granting damages. The decision rendered by the High Court against the first defendant is extremely unfavourable for him. The Court of Appeal ruled that a cross-appeal was for variations of the decision appealed against, but not for setting aside any other unrelated decision of the High Court. For example, in the case of See Chee How, the plaintiffs requested four possible remedies against defendants. Two remedies were granted, while two were denied. The defendant appealed for 2 of the granted remedies and the plaintiffs filed cross appeal for two of the denied remedies
In the case of Choong Su Kong v Sia Hiong Tee, Plaintiffs brought suit against defendants based on an order issued by SAR on December 6, 2012, and the court found that the plaintiffs had missed the deadline when they filed a notice of appeal on December 13, 2012, from the date of clarification. But, only defendants' letter acknowledges their failure to amend the relevant date on the order, which was given as December 6, 2012. In not insisting that the plaintiffs file the order pronounced on October 1, 2012 before filing the subsequent order on December 6, 2012, the plaintiff believing the date to be true is not guilty. According to order 56 rule 1(3) of the rules of court 2012, an appeal must be filed within fourteen days unless the court says otherwise .
Ishak's appeal was valid . This is because Ishak’s appeal is accepted in the high court by the Judge in chamber as it was done in accordance with Order 56(1) of the Rules of Court 2012. It is certain that the High Court found that the defendant ( Bala ) has committed battery on the plaintiff ( Ishak ). The court granted Ishak a general sum of RM230,000 and Ishak is unhappy with the amount, thus Ishak (the applicant) appeals for a sum of RM400,000. Bala (respondent) has the right to cross-appeal if he want the decision of hight court to be varied ,but Bala cannot because bring any matter out of the desition of the hight court becouse Court of Appeal jurisdiction is for rehearing the decision appealed against, not to set aside the judgement made by the High Court, he claims that Ishak is contributorily liable for the battery, allegedly committed by him ( Bala ). Pursuant to Order 56 Bala may serve notice of cross appeal in the Court of Appeal and serve the appellant with a duplicate copy of the Form 113 that he intends to argue for a variance on the hearing of the appeal. The Court is allowed to make amendments to the notice of cross-appeal at any time as it sees fit. However in the case of Kabushik where the court held that Court of Appeal jurisdiction is for rehearing the decision appealed against, not to set aside the judgement made by the High Court, therefore Bala could not bring any claim unrelated with the decision of High Court
Ishak’s appeal was valid as it was made according to the provision provided under Order 56 rule 1 of the Rules of Court 2012 Bala can make cross appeal as provided under Order 56 rule 2 of Rules of Court 2012 Court of Appeal jurisdiction is for rehearing the decision appealed against, not to set aside the judgement made by the High Court, therefore Bala could not bring any claim unrelated with the decision of High Court