by Fahri Azzat
Published July 14, 2010
Article first published in Loyar Burok on 14.07.2010.
After toiling for about 3 long years in the subordinate courts with the occasional foray to the High Court, though mostly at the Registrar level, and a few brief moments before High Court judges, my boss, Encik Izzat Othman, thought it was time I stepped up to take on more formidable briefs. So when an application for leave to appeal came up for hearing in the Court of Appeal in our firm, he thought it was safe and easy enough for me to handle.
The case concerned the negligent release of a grant of a vehicle by a finance company to an unauthorised third party. We acted for the finance company and “won” in the Sessions Court. “Won” because actually the Sessions Court judge found in favour of the claimant for negligence but did not award damages because he failed to prove it. So legally they may have lost but practically they won because they did not have to pay anything.
The claimant naturally appealed to the High Court which reversed the Sessions Court decision on the issue of damages and awarded the entire value of the car amounting to about RM30,000.00. Our client intended to appeal that decision on damages to the Court of Appeal. However they had to seek leave to appeal first because the amount was less than RM250,000.00 (see section 68(1)(a) of the Courts of Judicature Act 1964). We prepared and filed the application which was then fixed for hearing on 20 August 2002.
Naturally, as this was my first appearance in the Court of Appeal, I was terribly nervous and even more anxious. Even though the application was very short, I read and re-read the cause papers over and over. Then, I would keep running through the submissions and think of all the questions that could be hurled at me. I tried to memorise as much of the cases as possible in the hopes of maybe impressing them with my easy familiarity with the cases.
On that morning, I still remember my body wracked with anxiety as I stood in front of the cause list and saw the quorum: Dato’ Mokhtar Sidin, Datin Paduka Rahmah Hussain, and Datuk Wira Mohd Ghazali bin Mohd Yusoff. Everything seem to move in slow motion that morning, with lawyers dashing about here and there without seeming the least anxious about the impending hearing. The cause list was long that day, because it was mostly for leave applications and other applications. I think I was somewhere in the early part of the list.
When the bell finally rang, I think I broke out into a cold sweat. Still not quite believing that I was going to run this application, my head broke out in a variety of thoughts along the lines of: 3 years old! What the hell did I know? I only did summary judgment, re-instatement applications and substituted service applications before this – this leave thing was the real deal! I mean they have 3 judges up there for god’s sake! What was my boss thinking!
As my thoughts were running wild, I noticed that the leave applications were moving incredibly fast and it occurred to me that within minutes they would be calling up my application. Lawyers were spiking up and down you would think they were on a trampoline. I gripped my written submissions, all ready to be read out. My mouth went dry.
Then suddenly, I heard my case was called up. I immediately shot up and introduced myself. But the bench was not interested in introductions. Mokhtar Sidin who was presiding asked me just one question – “2-0 or 1-1?”
“1-1,” I said reflexively.
He immediately turned from me and pointed to my learned friend for the Respondent, Mr. Saran Singh asking him, “Why are you opposing the appeal?” Mr. Saran went on for perhaps a minute before Mokhtar Sidin declared the score was “1-1″ and so leave would be granted.
That was my singular submission for my debut Court of Appeal appearance for a leave application with the hearing lasting a whole 2 minutes I think, with my portion taking up a whole 30 seconds or so. I subsequently conducted the appeal proper in the Court of Appeal about 3 years later and succeeded. Thankfully, the hearing was much longer and necessarily so.