The Court of Appeal this morning struck out sacked deputy prime minister Anwar Ibrahim's appeal against High Court judge Arifin Jaka's decision to set aside the subpoena for Prime Minister Mahathir Mohamad to testify in the on-going sodomy trial.

Appellate Court president Lamin Mohd.Yunos and two other judges, Ahmad Fairuz Sheikh and Dennis Ong, also ordered the sodomy trial to proceed.

Soon after the three-member panel sat this morning, Lamin allowed the preliminary objections raised by Attorney-General Mohtar Abdullah on behalf of the prosecution.

Mohtar said that the decision of judge Arifin in respect of the setting aside of the subpoena on the prime minister is not a final decision.

"Therefore, the decision is not an appealable one," said Mohtar.

"If the judge feels that the prime minister's evidence is needed for the case after all the other witnesses are called, the prime minister may be called in," he added.

In response, defence counsel for Sukma Dermawan, who is jointly on trial with Anwar, Gobind Deo Singh said that his client has finished all the witnesses except Mahathir.

"He (Sukma) has concluded his defence and the question of asking the court to decide again later on the prime minister's evidence does not arise," he said.

Gobind also argued that judge Arifin's decision was final and appealable as the accused (Sukma) was not being allowed to put forward his defence.

"I wish to state that an accused person has the right to call any witness he chooses for his defence," he said.

Earlier, Mohtar told the judges that the High Court trial should not be postponed because of interlocutory appeals. He added that the judge (Arifin) had principally frustrated the continuation of the trial by allowing the postponement.

Counsel for Anwar, Karpal Singh, in response, said, "There is not a question of frustration. We are just seeking our legal rights."

"It cannot be at the discretion of the court if the witness is relevant to the case. To deny an accused person to call in a witness in the course of his defence is to deprive him of his fundamental right. It is a right to call the prime minister. Otherwise, this whole court is invalid," he added.

Anwar, dressed in a light blue long-sleeved shirt, appeared calm and composed when Lamin read out the decision after a 30-minute break.

He was later seen joking with his wife Wan Azizah Wan Ismail and eldest daughter Nurul Izzah.

"You mean you're surprised? You still trust our courts?" he was heard saying.

Meanwhile, the defence will now file a notice of appeal to the Federal Court, the country's highest court, in a day or two.

"Let the Federal Court determine the matter once and for all," said Christopher Fernando, a member of Anwar's defence team.

He said that as soon as the Federal Court grants a date for mention, the defence will ask judge Arifin for a stay of proceedings of the sodomy trial.

Anwar, who is being charged with forcing sex on his wife's former driver Azizan Abu Bakar with the aid of adopted brother Sukma, had argued that the prime minister's evidence in the sodomy trial is crucial.

However, judge Arifin decided in April to set aside the subpeona which was served on Mahathir to appear as witness last year. He said that there is not "an iota of evidence" that Mahathir is involved in a conspiracy to topple Anwar.

In Anwar's petition of appeal filed on May 23, he said that the defence intended to call Mahathir to testify to having publicly exculpated him (Anwar), his interviewing of witnesses, in particular Azizan, in relation to the fundamental ingredients of the charges against him and Sukma, and embarking upon an investigation of his own into the matter.

Anwar, one-time heir apparent to the prime minister's post, is currently serving a six-year jail term for corruption relating to abuse of power while in office as deputy prime minister.