The confusion over Rule 18(7A) – is Memorandum of Appeal required when no Grounds of Judgment available?

The controversy relates to the interpretation of Rule 18(7A) of the Rules of the Court of Appeal (“COA”) which provides that if the grounds of judgment (“GOJ”), amongst others, is not available within 90 days from the date of the decision appealed against, the Appellant shall file the Memorandum of Appeal (“MOA”) in a supplementary record of appeal (“SRA”) within 3 weeks of its availability.

In the Broad Grounds of an earlier decision in Aliff Syukri v Mohamad Syazwan in Civil Appeal No: B-02(NCvC)-695-04/2022 (“Aliff Syukri”), the COA found that the existence of Rule 18(7A) is not an exception to the mandatory requirement under Rule 18(7) to file the MOA with the record of appeal (“AR”). As such, despite Rule 18(7A) the Appellant is still required to file its AR together with the MOA within 90 days, even if the GOJ is not available.

The case of Aliff Syukri caused practical difficulties because it means that counsel may be required to speculate on the reasons for the High Court decision in order to prepare the requisite MOA. This practical difficulty has now been resolved by the recent case of Firdaus Khan & Anor v CIMB Bank Berhad.

In that case, KK Wong JCA departed from Aliff Syukri and found that where the GOJ is not available, Rule 18(7) does not mandatorily require an appellant to file a AR which contains a MOA within the 90 days period because any contrary interpretation would render Rule 18(7A) redundant. The Court of Appeal further found that it would be in the interest of justice for the appellant to file the MOA in a SRA only after obtaining the GOJ because only then would counsel be in a position to identify how the High Court had erred in fact and/or in law.

This decision gives much needed clarity to the procedural rules for the filing of the MOA, which in turn would reduce unnecessary preliminary objections being taken in the appellate courts.

See grounds of judgment at:

https://tinyurl.com/7mhmwhfe