Rai Bahadur Singh and Another v Bank of India

• Jurisdiction: Singapore
• Judgment Date: 21 May 1993
• Date: 21 May 1993
• Docket Number: Civil Appeal No 184 of 1992
• Court: Court of Appeal (Singapore)

Bank of India

Plaintiff

and

Rai Bahadur Singh and another

Defendant

[1993] SGCA 41

Judith Prakash JC

Civil Appeal No 184 of 1992

Court of Appeal

Civil Procedure–Appeals–Leave–Appeal pending before Court of Appeal–Whether single judge had jurisdiction to hear application to effect service of record of appeal out of time–Factors to be considered by court exercising discretionary power to grant extension–Sections 36 (1) and 36 (2) Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed)–Order 57 rr 9 (1) and 9 (5) The Rules of the Supreme Court 1970

The appellant applied to effect service of its record of appeal out of time. The respondent objected to the application on the ground that the court did not have jurisdiction to hear the application as it was made to a single judge. Even if jurisdiction existed, the respondent argued that the power to grant an extension was a discretionary power and should not be exercised in the appellant's favour.

Held, allowing the application:

(1) The appellant had failed to comply with O 57 r 9 (1) and under O 57 r 9 (5), the appeal was deemed to have been withdrawn. However, O 57 r 9 (5) made it clear that the appellant had the option of taking a further step, viz to apply to the Court of Appeal for an extension of time to comply with r 9 (1). Under s 36 (1) of the Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) (“the Act”) a judge could exercise the powers of the Court of Appeal if there was, in the words of the section, “a proceeding pending before the Court of Appeal”. A legal proceeding was pending if any further step of any sort could be taken. The court comprising of a single judge therefore had jurisdiction to deal with the application: at [5], [6], [17] and [19].

(2) The finding that the court had jurisdiction to hear the application was consistent with the legislative intent behind s 36 (1) of the Act to avoid burdening a three-judge court with interlocutory applications relating to an appeal which could be more expeditiously and less expensively disposed of before a single judge. Furthermore, this application was obviously one which fell within the words “any interim order to prevent prejudice to the claims of parties pending the appeal”: at [20].

(3) The application was allowed as the appellant's delay in serving the respondent the record of appeal had no substantial effect since the respondent was fully aware of the documents that were to be in the record of appeal. The delay was due to the inadvertence of the appellant's solicitors' clerk. The delay was not intentional and it was not alleged that there had been any mala fides in the actions of the appellant or its solicitors. Furthermore, the respondent's solicitors properly conceded that the respondent would not suffer any prejudice should the extension of time be granted: at [29], [30] and [31].

Chen Chien Wen Edwin v Judith Rosemary Pearson [1991] 1 SLR (R) 348; [1991] SLR 578 (distd)

Clagett's Estate, In re; Fordham v Clagett (1882) 20 Ch D 637 (folld)

Hau Khee Wee v Chua Kian Tong [1985-1986] SLR (R) 1075; [1986] SLR 484 (folld)

K Sockalinga Mudaliar v S Eliathamby [1952] MLJ 77 (folld)

Lariza (Singapore) Pte Ltd v Bank Negara Indonesia 1946 [1985-1986] SLR (R) 470; [1984-1985] SLR 315 (folld)

Ng Yit Seng v Syarikat Jiwa Mentakab Sdn Bhd [1981] 2 MLJ 194 (distd)

Pearson Judith Rosemary v Chen Chien Wen Edwin [1991] 2 SLR (R) 260; [1991] SLR 212 (folld)

Salt v Cooper (1880) 16 Ch D 544 (refd)

Rules of the Supreme Court 1970, The O 57 rr 9 (1), 9 (5) (consd);O 57 r 17

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) ss 36 (1), 36 (2) (consd);ss 29, 30

Victor Sim (Khattar Wong & Partners) for the appellant

Richard Choong (Drew & Napier) for the respondent.

Judith Prakash JC

1 This was an application by the appellants for permission to effect service of their record of appeal out of time. It was brought before me pursuant to s 36 (1) of the Supreme Court of Judicature Act (Cap 322) (“the Act”) which gives a single judge the power to dispose of interlocutory matters in appeals pending before the Court of Appeal.

2 The respondents objected to the application on two grounds:

(a) that a single judge did not have jurisdiction to hear this application;

(b) even if jurisdiction existed, the power to grant an extension was a discretionary power and there was no good reason to exercise such discretion in favour of the appellants.

3 After hearing argument, I decided both issues in favour of the appellants and I now give my reasons for doing so.

The jurisdiction point

4 To understand the respondents' argument on jurisdiction it is necessary to refer to ss 36 (1) and 36 (2) of the Act and to O 57 rr 9 (1) and 9 (5) of The Rules of the Supreme Court 1970. These provide as follows:

Section 36

1. (1) In any proceeding pending before the Court of Appeal any direction incidental thereto not involving the decision of the appeal, any interim order to prevent prejudice to the claims of parties pending the appeal, and any order for security for costs and for the dismissal of an appeal for default in furnishing security so ordered, may...