By Darren Lai and Kimberly Chan

Assisted by Sai Ganesh

In our previous chapters, we discussed the general process of initiating a suit and the rules on pleadings in Part 1, Judgments in Default and the setting aside of the same in Part 2, Pre Trial and Trial stages in Part 3, and interlocutory applications in Part 4.In this final chapter, we complete our discussion on the Malaysian Litigation Process with a discussion of appeals.

Appeals 

In gist, appeals are a mechanism in the litigation process for litigants dissatisfied with a decision made by a lower court, where such decisions can be applied for a review and reversal by a higher court. Appeals largely originate from the subordinate courts such as the Magistrates Court and Sessions Court to the higher courts such as the High Court, the Court of Appeal, but in some cases, originate from the High Court and up to the apex court of Malaysia, the Federal Court.

Types of Appeals

There are two types of appeals, namely appeals against a decision of an interlocutory application (made prior to trial), or a decision after a full trial. 

Civil appeals are generally by way of a rehearing, and parties are only allowed to adduce new (fresh) evidence with the leave of the Court. Leave, in this context, refers to permission or authorisation by the Court to proceed with an action or application. 

In respect of appeals against decisions made after a full trial, the appellate Courts generally do not interfere with the findings of facts by the trial Court. However, in certain circumstances, the appellate Courts have the power to order that a new trial be had to ensure that substantial justice is done.

Levels of Appeals Allowed

The Malaysian legal system practises a two-tier appeal system. In example, where a decision originates in the Magistrates’ or Sessions Court, the first appeal will be heard at the High Court. In the event a party is still dissatisfied with the decision of the High Court, a second appeal may be filed in the Court of Appeal. Accordingly, where a decision originates from the High Court, the first appeal will be heard at the Court of Appeal, while the second appeal may be filed in the Federal Court.

Jurisdiction of Appellate Courts

High Court

Pursuant to the Courts of Judicature (Amendment) Act 2022 (“CJAA 2022”) which came into effect on 1 October 2022, Section 28 (1) of the Courts Judicature Act 1964 (“CJA 1964”) has since been amended to now provide that no appeals against a decision of a subordinate court to the High Court shall be allowed where: 

  1. the value of the subject matter is RM10,000 or less, except where it concerns a question of law;
  2. the subordinate court had dismissed an application for a summary judgement, or striking out application of any writ or pleading; and
  3. the subordinate court had allowed any application to set aside a judgement in default.  
Court of Appeal

Generally, the Court of Appeal has the jurisdiction to hear and determine  appeals against decisions of the High Court in both civil and criminal matters. Parties may appeal to the Court of Appeal, as of right, in cases where the value of the subject matter is above RM250,000.

However, there are certain exceptions that apply. Pursuant to the CJAA 2022, Section 68(1) of the CJA 1964 now provides that the Court of Appeal shall not hear appeals where: 

  1. the value of the subject matter of the claim is lesser than RM250,000, unless leave of the Court is obtained;
  2. the judgement or order is made by consent of the parties to the suit;
  3. the judgement or order relates to costs only, unless leave of the Court is obtained;
  4. the judgement or order of the High Court is expressly declared to be final by any written law for the time being in force;
  5. the High Court had dismissed an application for a summary judgement, or striking out application of any writ or pleading; and
  6. the High court had allowed any application to set aside a judgement in default. 

Section 68(3) of the CJA 1964 also states that appeals are not allowed where a decision is made by a Judge in Chambers in a summary way on an interpleader issues, where the facts are not in dispute, except with the leave of the Court.

The CJAA 2022 seeks to introduce these amendments to ensure expeditious litigation proceedings and to avoid any delays in court proceedings due to numerous appeals against decisions of interlocutory proceedings. 

Federal Court

As the highest Court in Malaysia, the Federal Court would constitute the final stage of appeal decisions originating from the High Court. However, a Federal Court appeal is not automatically allowed. In order for a party to file an appeal to the Federal Court, a party must first request and obtain leave (permission) to do so, but only in certain circumstances.

Pursuant to Section 96(a) of the CJA 1964, an appeal to the Federal Court will only be allowed if leave is obtained, and if: 

  1. a judgement or order from the Court of Appeal is in respect of any civil cause or matter decided by the High Court in the exercise of its original jurisdiction*, concerning a novel issue or a question of importance whose resolution by the Federal Court would be in the interest of the public; or 
  2. from a decision as to the effect of any provision under the Constitution of Malaysia or any written law relating to such provision. 

*Original jurisdiction refers to the authority of a Court to hear and decide a case as the first court to consider it. This is typically the Court wherein the case is initially filed and heard.

Conclusion

In summary, the appeal process in the Malaysian litigation system is a crucial and necessary mechanism to ensure fairness, justice and proper application of the law, as parties are given the opportunity to seek a review of decisions made by the Courts, and to prevent miscarriages of justice. While the appeal process may involve complex procedural requirements and restrictions, it provides an avenue for rectification in cases where errors or injustices may have occurred. 

Published on 23 May 2023

PHOTO BY GIAMMARCO ON UNSPLASH

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