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By R. Jayabalan
Appeal Record may be filed without Memorandum of Appeal in the absence of ground of judgment within 90 days.
In 2023 in Aliff Syukri case the Court of Appeal held that appeal records filed without memorandum of appeal are defective even in a situation where the High Court judge had not issued the grounds within the stipulated 90 days.
This decision caused much consternation among practitioners for the simple reason that: how does the appellant state the grounds (in the memorandum of appeal) to attack the decision if the reasons/grounds for the decision are unknown? Essentially this would require the appellant to speculate and guess the reasons and further state speculative grounds to challenge the decision.
Somehow this practical difficulties was lost in the decision in Aliff Syukri!
Thankfully another bench of the Court of Appeal has now decided that Aliff Syukri was per incuriam (wrongly decided) and applied the correct approach viz. if the High Court had not provided the grounds within 90 days then the appeal record maybe filed WITHOUT the memorandum of appeal and the memorandum maybe filed within three weeks AFTER receipt of the grounds – this is perhaps the correct interpretation of r. 18(7).
The Court of Appeal also recognised the fact of difficulties in drafting the memorandum of appeal without the grounds and that the memorandum in such a case would be a speculative product.
Secondly, the Court of Appeal when holding Aliff Syukri as per incuriam also noted that for that decision, no grounds of decision was given and that only broad grounds was given. It was held that ratio decidendi cannot be ascertained from such broad grounds.
Happily, this recent decision has removed a major headache for appellants when preparing appeal records in the absence of the grounds within the 90 days. Kudos to the panel. Well done to the lawyers involved.
R. Jayabalan
MESSRS R. JAYABALAN
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