The Federal Court today laid down the guidelines for leave to appeal against a ruling of the Court of Appeal.

A special panel said that litigants wishing to appeal a Court of Appeal decision in a civil case must obtain leave from the Federal Court, complying with certain requirements.

This clarification followed the request of some senior lawyers from the Bar Council for the Federal Court to resolve inconsistencies in two judgments made by Federal Court panels over the interpretation of the provisions of Section 96 of the Courts of Judicature Act 1964 (CJA) relating to the leave application.

The special panel of five judges - led by Chief Justice Zaki Azmi - was set up to answer the matter relating to the leave application made by the senior lawyers in the case Terengganu Forest Products Sdn Bhd vs Cosco Container Lines Co Ltd and Chung Chiao Shipping Sdn Bhd and five other cases.

Sitting with Zaki were Court of Appeal president Alauddin Mohd Sheriff, Chief Judge of Malaya Arifin Zakaria, Chief Judge of Sabah and Sarawak Richard Malanjum and Federal Court Judge Zulkefli Ahmad Makinudin.

On Oct 15, Zaki, responding to questions from the media, refuted the view of some lawyers that the Federal Court was denying their leave to appeal.

Zaki said it depended on merit. If the applicant had the merit for leave to appeal, the court would grant the leave.

To obtain leave, he added, the appellant must fulfil the requirements under Section 96 of the CJA for the court to grant the leave.

Reading the 39-page judgment of the panel, Zaki said that applicants for leave to appeal should consider, among other things, these prerequisites:

THAT leave to appeal must be against the decision of the Court of Appeal,

THAT the cause or matter must have been decided by the High Court exercising its original jurisdiction,

THAT the matter must involve a question of law which is of general principle not previously decided by the Federal Court, and,

THAT the issue to be appealed against has been decided by the Court of Appeal.

As a rule, Zaki said, leave will not be granted in interlocutory appeals.

But he added that it would help the case for the applicant if there had been "consistent judicial opinion which may be uniformly wrong" and if there had been dissenting judgment in the Court of Appeal.

Zaki said that leave to appeal against interpretation of statutes will not be given unless it is shown that such interpretation is of public importance.

He said the court accepted the principles in the case of Syed Kechik Syed Mohamed vs the board of trustees of the Sabah Foundation in granting the leave application.

The case, among others, ruled that where the decision of the Court of Appeal or the Federal Court raised a point of law of great general importance based on a legal principle which had been uniformly wrong, then the leave should be granted.

He noted that the Supreme Court in New Zealand would not grant leave to appeal unless it was satisfied that it was necessary in the interests of justice for the court to hear and determine the proposed appeal.

In the Malaysian legal system, Zaki said, it was quite clear from the wording of Section 96(a) of the CJA that the appellant must fulfil the requirements stated for the court to grant leave.

- Bernama