NOVEMBER 14 — The federal government has made the decision: not to appeal the Kota Kinabalu High Court ruling on Sabah’s 40 per cent entitlement as provided for under the Federal Constitution but to appeal the defects in the Grounds of Judgement concerning allegations of abuse of power and constitutional breaches involving both governments since 1974.
Some quarters have called the decision confusing.
Let’s refer to the case of Leisure Farm Corp Sdn Bhd & Ors v Kabushiki Kaisha Ngu, which was before the Kuala Lumpur High Court, whose decision was appealed to the Court of Appeal with a further appeal to the Federal Court.
In that case, the Plaintiff had entered into an agreement for the purchase of Golf Course land (the Land) owned by the Second Defendant). The First Defendant, which owned all the shares in the Second Defendant, had negotiated with the Plaintiff for the sale of the Land. The Plaintiff had entered private caveats to protect its interest over the land.
Despite the agreement, the First and Second Defendants entered into a subsequent agreement with the Third Defendant to sell a part of the Land to the Third Defendant.
The Plaintiff then filed an action against the Defendants for, among others, an order of specific performance of the agreement it had entered into with the First and Second Defendants.
The learned High Court judge found that there was a valid and binding contract between the Plaintiff and the First and Second Defendants for the sale and purchase of the Land and that the Third Defendant was not a bona fide purchaser for value without notice, as he was aware of the agreement between the Plaintiff and the First and Second Defendants.
However, the learned judge only granted the Plaintiff an order for damages in lieu of specific performance.
The Plaintiff filed a notice of appeal against only some parts of the decision of the learned judge (and not the whole). The English translation of the notice of appeal in its material parts are reproduced below:
NOTICE OF APPEAL
TAKE NOTICE that [the Plaintiff] being dissatisfied with the decision of the Honourable [High Court judge] given at Kuala Lumpur on the 11th of March 2014 appeals to the Court of Appeal against such part only of the said decision of the Honourable [High Court judge], that is:
(a) against the decision of the Honourable [High Court judge] in disallowing specific performance as prayed by the Plaintiff against the First Defendant;
(b) against the decision of the Honourable [High Court judge] in dismissing the Plaintiff’s claim against the Second Defendant;
(c) against the decision of the Honourable [High Court judge] in dismissing the Plaintiff’s claim against the Third Defendant;
Clearly the Plaintiff’s appeal was only against parts of the judgment of the learned judge, in particular against that part of the judgment granting only damages in lieu of specific performance.
The Plaintiff contented that it was entitled to an order of specific performance.
Appealing against part of a judgment is allowed by rule 5(4) of the Rules of the Court of Appeal 1994, which reads as follows:
“Any appellant may appeal from the whole or part of a judgment or order and the notice of appeal shall state whether the whole or part only, and what part, of the judgment or order is complained of.”
Where the appeal is against a part of the decision or order, the appellant must set out in the notice of appeal details relating to that part of the decision or order which is unsatisfactory to him.
So, what’s confusing about the federal government appealing against parts of the Kota Kinabalu High Court judgment?
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
