JUDGMENT
JUDGMENT
(Notice Of Motion In Court Enclosure No. 7)
A. Introduction
[1] This judgment discusses the following questions:
(1) whether r 18(7) of the Rules of the Court of Appeal 1994 (RCA) has imposed a mandatory requirement for an appellant to file a Record of Appeal (RA) which contains a Memorandum of Appeal (MA) within 90 days from the date of the High Court's decision [90 Days Period (Filing of RA)] when the High Court's "Written Judgment or Grounds of Decision" (High Court's Written Judgment/Grounds of Decision) is not available before the lapse of the 90 Days Period (Filing of RA). This issue also concerns the following matters:
(a) an interpretation of rr 1A, 18(1) and (7A) RCA; and
(b) from the view point of the "stare decisis" doctrine, whether the "Broad Grounds" (Broad Grounds) of the Court of Appeal's decision in Aliff Syukri Kamarzaman v. Mohamad Syazwan Shuhaimi, [Civil Appeal No B-02(NCVC)-695-04-2022] (Aliff Syukri) binds the Court of Appeal with regard to the construction of r 18(7) and (7A) RCA; and
(2) if:
(a) rule 18(7) RCA mandatorily requires an appellant to file a RA which contains a MA before the expiry of the 90 Days Period (Filing of RA); and
(b) the appellant has filed a RA within the 90 Days Period (Filing of RA) but the RA does not contain the MA because the High Court's Written Judgment/Grounds of Decision is not available before the lapse of the 90 Days Period (Filing of RA)
- can the respondent raise a Preliminary Objection (Respondent's PO) or apply to the Court of Appeal to dismiss or strike out the appeal solely on the ground that the appellant has failed to comply with the mandatory r 18(7) RCA (Respondent's Dismissal/Striking Out Application)?
When the Respondent's PO has been raised or when the Respondent's Dismissal/Striking Out Application has been filed, whether the appellant can file an application to the Court of Appeal pursuant to r 93 RCA for an order to enlarge the 90 Days Period (Filing of RA) so as to allow the appellant to file a Supplemental RA (SRA) which contains the High Court's Written Judgment/Grounds of Decision and MA.