Herbs and Spices Trading Post Pte Ltd v Deo Silver (Pte) Ltd

• Judge: Chan Sek Keong J
• Judgment Date: 11 December 1990
• Neutral Citation: [1990] SGHC 108
• Citation: [1990] SGHC 108
• Defendant Counsel: Peter Yap (Peter Yap & Co)
• Published date: 19 September 2003
• Plaintiff Counsel: Steven Ang (Godwin & Co)
• Date: 11 December 1990
• Docket Number: District Court Appeal No 83 of 1989
• Court: High Court (Singapore)
• Subject Matter: Appeals,Civil Procedure,Power and jurisdiction of registrar of subordinate courts,O 32 & O 55 Rules of the Subordinate Courts 1986,Right of appeal from decision of district judge,ss 47 & 69 Subordinate Courts Act (Cap 321),ss 21 & 34 Supreme Court of Judicature Act (Cap 322)

This was an appeal by the plaintiffs/appellants against the decision of the district judge allowing an appeal against the decision of the deputy registrar striking out the amended defence and counterclaim under O18 r 18(1) of the Subordinate Court Rules 1986. I allowed the appeal in part.

Counsel for the defendants took a preliminary objection to this appeal. He submitted that the plaintiffs had no right of appeal on the ground that the decision of the district judge was final as between the parties by reason of O 55 r 1(5). That rule provides that:

1(1) An appeal shall lie to a Judge in Chambers from any judgment, order or decision of the Registrar.

(2) The appeal shall be brought by serving on every other party to the proceedings in which the judgment, order or decision was given or made a notice in Form 111B to attend before the Judge on a day specified in the notice or on such other day as may be directed.

(3) Unless the Court otherwise orders, the notice must be filed within 5 days after the judgment, order or decision appealed against was given or made and served not less than 2 clear days before the day fixed for hearing the appeal.

(4) Except so far as the Court may otherwise direct, an appeal under this Rule shall not operate as a stay of the proceedings in which the appeal is brought.

(5) The decision of the Judge in Chambers under this Rule shall be final.

(2) There shall be no appeal from a Judge in any interlocutory application except with the leave of the Judge.

I have in my judgment in Goh Siam Yong v [1989] 3 MLJ 406 decided that if r 1(5) had the effect of denying a party the right to appeal to the High Court, it was ultra vires s 47 of the Subordinate Courts Act (Cap 321) read with s 21 of the Supreme Court of Judicature Act (Cap 322) [1989] 3 MLJ cxxiv. Counsel, however, was not aware of another case note, arguing to the contrary, by Mr Tan Kay Kheng published in [1990] 1 MLJ lxxxvii. Counsel contended that Mr Khoo` s analysis of the relevant statutory provisions was correct and that mine was wrong.

The argument of Mr Khoo is set out in the following paragraph of his case note:

Section 21 [of Cap 322] clearly allows for the right of appeal from ` ... a decision of a district court ... in any suit or action ...` . It seems to me that the ` decision` envisaged by legislature must obviously refer to those decisions which the district court is competent to make, as empowered by Part IV of the Subordinate Courts Act. Part IV gives a detailed list of the civil jurisdiction of a district court, all of which are original jurisdiction. The Subordinate Courts Act does not provide appellate jurisd iction for the district court. That being the case, s 21 above cannot possibly envisage an appellate decision of a district court or, for that matter, a district judge. To that extent, s 21 contains a lacuna. If this argument is accepted, it then follows t hat O 55 r 1(5) cannot be an ultra vires provision. In fact it would be intra vires the Subordinate Courts Act and s 21 of the Supreme Court of Judicature Act.

Arising from the lacuna described above, a more fundamental issue arises, viz the right of appeal against the decision of a registrar of the subordinate courts. The right of appeal is a creature of statute. Section 21 does not permit appeals against a registrar` s decision!

Put in syllogistic form, the argument is as follows:

(1) s 21 confers a right of appeal against any decision of the district judge which it is competent to make, ie a decision made in the exercise of its original...