Let’s chat about the memorandum of appeal, at the Court of Appeal context. Typically referred to as the MOA but not to be confused with the other MOA (i.e. Memorandum of Appearance). Legalese humour there.

For this article to work, let’s make certain assumptions:-

(a)               the client instructed to appeal;

(b)               the appeal is one where it is as of right; and

(c)                the notice of appeal was filed within time i.e. 30 days from the decision appealed against (“Decision”).

As you already know, the MOA sets out the grounds of objection to the Decision. The look of the MOA is set out under rule 18(1) and Form 3 of the Rules of the Court of Appeal 1994 (“Rules”).

To have an effective MOA, one would require the basis or reasoning for the Decision so as to prepare the MOA. This basis or reasoning would take the form of written judgment / grounds of decision (“GoJ”). All things equal, the MOA (as well as other required items under rule 18(4) of the Rules) are to form the record of appeal and filed within 90 days from the Decision.

But what happens if there is no GoJ after 90 days?

Last year, the Court of Appeal in Firdaus Khan bin Parit Khan & Anor v CIMB Bank Bhd [2024] 4 MLJ 474 addressed 4 scenarios:-

Scenario 1 – the GoJ is prepared within 90 days from the Decision.

Scenario 2 – the GoJ is available only after 90 days from the Decision.

Scenario 3 – the GoJ is not available for whatever reason.

Scenario 4 – only broad grounds of judgment were given.

In summary:-

For Scenario 1 – the Rules mandatorily require the appellant to file the record of appeal which contains the MOA within 90 days from the Decision.

For Scenario 2 – the appellant can file a supplementary record of appeal containing the GoJ and the MOA within 3 weeks of being notified of the availability of the GoJ.

For Scenario 3 – the Rules empower the Court of Appeal to order an appellant to proceed with the appeal (“Order”) and the Order should include an order for the appellant to file the MOA.

For Scenario 4 – necessitates a proper reading of the broad grounds issued in each case. In other words, it depends on its contents and extent.

On Scenario 4, we fast forward to early September this year 2025. In Tan Hoo Eng & Ors v Lim Keck Eng & Ors Civil Appeal No. C-02(NCVC)(W)-1990-10/2022 where the Court of Appeal addressed a Scenario 4 and from there a Scenario 2 position. In summary:-

(a)               although decision was delivered orally, the learned High Court Judge went to great lengths in explaining the basis of arriving at her conclusion. It’s reflected in a 57-page transcript of proceedings prepared by an interpreter of the High Court and made available to the parties;

(b)               the oral (broad) grounds of judgment not only contained a complete analysis of the issues raised by the parties but also a complete narration of the background facts. Apparent as well that the learned High Court Judge analysed both the documentary and oral evidence of witnesses and made findings of fact;

(c)                the broad grounds are sufficient to enable the appellants to prepare the MOA and filed within 3 weeks from the availability of the transcript; and

(d)               in the event the written grounds of judgment were to be made available later and new issues were addressed, the appellants could always file a motion to amend the MOA accordingly.

Similar to how the word “err” is used in MOA, if in doubt whether one should file the MOA, it’s best to err on the side of caution. Yes, more legalese humour.

As a parting note, do note that as much as parties can come to an agreement on filing of documents beyond that prescribed in the Rules, there is a limit of a maximum of 14 days and only once. This is without having to apply to the Court of Appeal.

That concludes, for now at least, the chat on MOA. Hope this proves helpful.