My debut Federal Court appearance

After my debut in the Court of Appeal and getting a few hearings at that level under my robe, my boss trusted me to conduct a hearing at the Federal Court, the most supreme court in Malaysia. It was a civil matter and involved an application for leave to appeal to the Federal Court, which is another way of saying ‘the Federal Court’s permission’.

For civil cases, litigants need the Federal Court’s permission to appeal against a Court of Appeal decision. Where civil cases are concerned, there is no right of appeal against a civil Court of Appeal decision, unless the issue of law is a constitutional one. There is no such requirement for criminal cases. A person convicted in the High Court may appeal against that decision to the Court of Appeal and the Federal Court without having to obtain any permission. So an accused person has two rights of appeal. For civil cases, a losing party generally has one right of appeal; any further appeal requires the court’s permission.

The Federal Court’s permission is required because section 96(a) of the Courts of Judicature Act 1964 (CJA64) makes it so.

Permission is granted in two situations.

The first is when there is a “question of general principle decided for the first time“. This is known as the novelty limb. Does the case involve a novel question of law? The second is when there is a “question of importance upon which further argument and a decision of the Federal Court would be to public advantage“. This is known as the public importance limb. Would further argument on this issue of law be to the public advantage?

Both situations are mutually exclusive. As Tun Zaki Tun Azmi CJ said in the leading decision Federal Court on the application of section 96 CJA64 of Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd & Another & Other Applications [2011] 1 CLJ 51, “If further argument is required it cannot be a novel issue.” If no such issues of law are present in the intended appeal, the chances of obtaining permission to appeal to the Federal Court are non-existent. Getting the Federal Court’s permission is a difficult thing. Applications are likelier to be dismissed than allowed.

As it should be. Novel issues of law or legal issues where further argument is to the public advantage are uncommon qualities. I refer to legal questions that fit either category as unicorn legal issues. Have we got a unicorn here? Sticking a cone on top of a horse sometimes does the trick if counsel can get away with it. For an example of this see the Federal Court decision of Deepak Jaikishan v A. Santamil Selvi Alau Malay & Ors [2017] 5 CLJ 641. After all, whether the legal issue is a unicorn or not lies in the legal eye of the beholder.

When I was tasked to argue against the application for the Federal Court’s permission, the leading authority at the time was the decision of Datuk Syed Kechik Syed Mohamed & Anor v The Board of Trustees of the Sabah Foundation & Ors [1999] 1 CLJ 325. The difference between the Datuk Syed Kechik decision and the Terengganu Forest decision was the judges in the former decision took a more liberal and expansive approach to deciding whether to give Federal Court permission. This is how Justice Edgar Joseph Jr FCJ put it:

The circumstances for granting leave applications in the Federal Court are not limited to the two situations stated in s. 96(a) of the Act. Whilst the situations stated therein, namely “a question of general principle decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to public advantage” constitute the paramount considerations, they are not exclusive. An assessment of the prospects of success should leave be given is an important factor which the Federal Court must also consider. This aside, leave may also be granted, inter alia, upon consideration (i) of the utility of the decision of the Federal Court on the question of law as a means either to clarify or develop a general principle of law (ii) that there was a dissenting judgment in the Court of Appeal (iii) of the need to authoritatively restate the relevant law. [My emphasis]

Datuk Syed Kechik Syed Mohamed & Anor v The Board of Trustees of the Sabah Foundation & Ors [1999] 1 CLJ 325, Held (2)

Despite that Justice Edgar Joseph Jr did warn that despite such an approach the Federal Court would not give permission readily. It would be given only if one of the conditions in section 96(a) CJA64 was met and the applicant demonstrated a prima facie case for success in the appeal. That means the applicant must show his appeal might succeed if permission was given. Prima facie means first impression.

Having considered all that, the judges in my early days of practice were less ‘technical’ in approach. My sense of it was they rode on intuition and indicia more than they adhered to the ligatures of law. They often applied heuristics especially in deciding applications for leave to appeal. The most prevalent one was the 1 – 1 rule; the High Court went one way and the Court of Appeal another. That difference of opinion usually was a sign the legal issues in contention possessed the qualities required by section 96(a) CJA64 – novelty or to the public advantage or both. If you had a 1 – 1 situation, you were likely to get Federal Court permission to appeal.

I was sent to argue the matter for several reasons. First, our client had won resoundingly in the High Court and the Court of Appeal previously. It was a 2 – 0 situation. Dismissing the application the Federal Court’s permission was almost in the bag. Second, my boss probably had something more important to attend to because he did not even turn up for the hearing with me.

Third, and most important for me since I was scheduled to argue the application, the issue of law on which the application for permission was premised was a straightforward one: Could a purchaser who purchased a house claim for double rental against the vendor when the vendor failed to give vacant possession after the purchase price was paid? I emphasize those terms for comparative purposes with the provision that follows. The applicant relied on section 28(4)(a) of the Civil Law Act 1956 (CLA56) to support and advance its claim. That provision reads as follows:

Every tenant holding over after the determination of his tenancy shall be chargeable, at the option of his landlord, with double the amount of his rent until possession is given up by him or with double the value during the period of detention of the land or premises so detained, whether notice to that effect has been given or not.

Section 28(4)(a) of the Civil Law Act 1956

Section 28(4)(a) CLA56 applies to a landlord-tenant situation where the tenant continues staying on the property after the tenancy is terminated. A tenant that does that is said to be ‘holding over’ the property. Section 28(4)(a) CLA56 allows the landlord impose double rental on the tenant if they hold over the property. It is patently obvious the provision does not apply to a vendor-purchaser situation. There were previous consistent Court of Appeal decisions that had decided so.

The applicant’s submissions indicated they relied on the provision not because of the wording but for the situational similarity. They reasoned that a vendor that did not deliver vacant possession to a purchaser was in a similar situation as a tenant that did not deliver vacant possession to the landlord after the tenancy was terminated or expired. Since there was a similarity of situation between them, for this reason the purchaser should be able to claim double rental from the vendor if he does not deliver vacant possession.

This argument is all well and good but overlooked one vital hurdle – section 28(4)(a) CLA56 only applied to landlord-tenant situations, not vendor-purchaser situations. The wording was clear as day. For this reason I felt the issue of law was straightforward and was not overanxious about it. I had my argument: section 28(4)(a) CLA56 clearly did not support the issue of law advanced by the applicant; there was no novel issue of law and further argument would not be to public advantage because previous Court of Appeal decisions were unanimously consistent in their interpretation of the provision.

But when a plausible argument is paired with an insistent senior counsel, even moribund arguments suddenly finds fresh impetus and even takes flight.

I turned up for the hearing with just one case: 5 copies of the Datuk Syed Kechik decision. Back then we did not have to file our submissions or bundles before hand. We turned up, handed up our submissions and authorities then boogied down then and there. I thought arguments would revolve around whether the issue of law was novel or to public advantage, and its chances of success. I was confident and eager for the hearing. I thought it was going to be a 15 – 20 minute hearing. After all, that is what Justice Edgar Joseph Jr said it should be:

The application for leave to appeal to this court should set forth shortly, the facts and points of law of such general importance to make it appropriate for the consideration of this court and conclude with summarized reasons for leave to be granted. At the hearing, the argument, so far as it is possible, should be brief, succinct and concentrated.

Datuk Syed Kechik Syed Mohamed & Anor v The Board of Trustees of the Sabah Foundation & Ors [1999] 1 CLJ 325, Held (1)

The hearing turned out to be anything but that. Served on me that morning were four bundle of authorities. Each bundle contained about 300 – 400 pages. It had 40 – 50 cases, including a whole Act of Parliament or two. I paged through the bundles and did not see how 98% of the materials in there was relevant to the hearing at hand. There was the formidably written submission which went along with it. I leafed through and tried to make sense of; to me, it was a laugh of fluff and bluff. After skimming it, I felt the application should have been dismissed.

The applicant’s counsel went on a for at least a full hour if not more. At some points, it felt like a full blown appeal because the applicant’s counsel was arguing the legal issue on the merits pretty hard and aggressively. I was getting anxious because I did not think I had to get into the merits of the legal issue at that juncture. After the applicant’s counsel was done, I heard the chairing judge say, “Let us now hear from Respondent’s counsel.”

I was probably the youngest counsel in the Federal Court that morning. My youth and inexperience was obvious on my face and manner, especially when placed beside the applicant’s counsel, who was senior and well known. I could see the bench collectively turn to look at me. They broke into a smile. It was not a benign one. It was the sort that forms in anticipation of fun and play.

I got to my feet.

“Ah counsel. Are you opposing the application?”

“Of course, my Lord.”

“Why? There is an issue of law here.”

“First, my instructions are to oppose the leave application. Second, there is no novel issue of law. Section 28(4)(a) CLA56 is clear. It does not apply to a vendor/purchaser situation. It applies only to a landlord/tenant situation. There is a consistent line of decisions that decided as such. Third, there is no issue of law in the public interest here. It is a commercial matter.”

“Of course, of course. But why don’t you concede to the application, Encik Fahri? Your client will not lose the appeal. They can still argue the substantive appeal. Who knows? They may win there. It is not the end of the road if you concede.”

“But why my Lord? The applicant has not submitted an issue of law that fulfils the section 96(a) CJA64 requirement. They have no right to go any further. The Court of Appeal decisions are very clear on this point. There is no need for a Federal Court decision.”

“Yes, but it is the Federal Court’s duty to authoritatively restate the law if necessary.”

“Of course, my Lord; but only if it is unclear or to public advantage. Here, our client succeeded at both levels below. All Court of Appeal decisions are in our favour. There is no contradicting authority either at the High Court or Court of Appeal. A Federal Court decision would not add anything. The law is clear.”

“But a Federal Court decision would make it clearer, wouldn’t it?”

“My Lord, is there a need to clean a window that is already clear?”

“Yes, but what if cleaning it makes it even clearer?

“My Lord, what is the point of cleaning a clear window?”

“To make it clearer?”

“If my Lord feels there is further clarity required for this clear point of law, I have nothing else to submit.”

“So you agree to the application?”

“No, my Lord. I’m sorry, I cannot. I will have difficulty explaining to my client why I did that.”

“Anything else?”

“No.”

The applicant’s application was allowed. They got permission to appeal on that issue of law.

My boss was surprised not surprised at the decision.

I later conducted the hearing of the main appeal in the Federal Court and enjoyed the judges there decimate the applicant’s arguments. They were surprised that the question of law made it past the leave stage. The main appeal took less time than the hearing of the main appeal itself. Our client won, of course, as they should have.

But that incident has always left me wondering what the leave hearing I experienced was really about.

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