| ZRAR v RIMS [2023] SLRAU 14
Syariah Court of Appeal (Shah Alam) Application for permission to extend the time to file the Notice of Appeal |
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| Facts |
1. The Applicant was lawfully married to the late MSMS, the father of the Respondents, on 20 August 2008. The said marriage was dissolved by divorce on 13 February 2013. The deceased, MSMS, passed away on 20 February 2020. 2. The First Respondent is a citizen of Australia, holder of Passport No: PBIXXXXXX, and is presently residing at XXXXXX. The Second Respondent is a Malaysian citizen who resides at the same address as the First Respondent. 3. The Respondents are the Applicant’s stepchildren and the biological children of the deceased and his first wife. 4. The present matter concerns an application filed by the Applicant on 30 January 2023 by way of a Notice of Application supported by an Affidavit, wherein the Applicant respectfully seeks leave of this Syariah Court of Appeal (“SCA”) to extend the time for the filing and service of the Notice of Appeal. 5. The Respondents in this appeal have filed an application for a Faraid Certificate in respect of the estate of the deceased, MSMS, at the Syariah High Court (“SHC”) under Application No: 10XXX-040-XXXX-2020. 6. Prior to that, the Applicant had filed a Preliminary Objection Application (the said application) to intervene in the main proceedings by way of Application No: 10XXX-041-XXXX-2020, on the grounds that the Applicant possesses relevant knowledge and documentary evidence concerning the legitimacy of the Respondents. 7. However, on 14 October 2021, the SHC of Shah Alam delivered its decision rejecting the said application to intervene and the Court ordered as follows: 8. Dissatisfied with the said decision, the Applicant initiated a judicial review by way of Application No: 10000-003-0122-2021 on 12 November 2021, seeking relief from the SCA. 9. On 16 March 2022, the SCA dismissed the Applicant’s judicial review, concluding that there were no sufficient grounds to warrant interference with the decision of the learned Trial Judge. 10. Accordingly, on 30 January 2023, the Applicant filed an Appeal Application for an extension of time to file the Notice of Appeal in respect of the dismissed intervention application, which had been rejected by the SCA, on the following grounds: (a) That this Honourable Court has the jurisdiction to hear and determine this claim; (b) That the application for an extension of time to file the appeal is reasonable and ought to be allowed; and (c) That it would not be appropriate for this Honourable Court to award costs against the Applicant in favour of the Respondents. |
| Issue |
1. Whether the Applicant’s application for an extension of time to file and serve the Notice of Appeal should be granted? |
| Ratio |
1. Whether the Applicant’s application for an extension of time to file and serve the Notice of Appeal should be granted? (a) The Court referred to section 238 of the Syariah Court Civil Procedure (State of Selangor) Enactment 2003, which provides as follows-
(b) The Court also referred to the case decided by the SCA of the State of Selangor in SBM v. YH [2011] SLRAU 15, delivered on 17 January 2011, where it was held that the decision to grant an extension of time to file a Notice of Appeal is at the Court’s discretion. In exercising this discretion, the Court must consider the length and reason for the delay, the prospects of the appeal’s success, and any potential prejudice to the Respondent. (c) The guiding principles established in the referred case were subsequently affirmed and applied by the SCA of the Federal Territories in AA v. AA [2011] SLRAU 12; [2013] 1 CLJ SYA 384, which outlined the factors to be considered, namely: (i) The length of the delay; (ii) The reason for the delay; (iii) The likelihood of the Applicant succeeding in the appeal; and (iv) The degree of prejudice that may be occasioned to the Respondent should the application for extension be allowed. (d) The first factor, namely the length of the delay, refers to the period of delay calculated from the expiry date of the deadline for filing the Notice of Appeal up to the date the present application for extension of time was filed by the Applicant. (e) The Court found that the deadline for filing the Notice of Appeal was 28 October 2021, following the High Court’s decision on 14 October 2021. The application for an extension of time was filed on 30 January 2023, resulting in a delay of approximately 455 days (1 year and 3 months). (f) The Court further held that a delay of 455 days was excessive and unreasonable, a fact acknowledged by the Applicant in their affidavit. This indicated the Applicant’s negligence and failure to exercise due diligence from the outset. (g) The second factor, concerning the reason for the delay, was considered by the Court, which found that the Applicant’s choice to pursue the review procedure to challenge the decision in the Preliminary Objection case as a Third Party was improper. (h) The Court held that the Applicant should have filed a Notice of Appeal rather than opting for a review. This demonstrated that the Applicant had mistakenly chosen the wrong procedure, whether it should have been an appeal or a review. (i) The Court also referred to the case of IA v. NF [2017] SLRAU 28, Jurnal Hukum 45(2), in which the SCA of Selangor dismissed the Applicant’s application for leave to extend the time to file a Notice of Appeal. The dismissal was on the grounds that the application for extension of time was only filed after the Applicant had first initiated and utilised the review process. (j) Then, the third factor, namely the likelihood of the Appeal being successful, was considered by the Court, which held that the Applicant lacked locus standi to intervene in the Faraid case, as they were no longer the deceased’s wife at the time of death. Additionally, the Faraid case had already been concluded on 22 June 2022, making the Applicant’s request to intervene irrelevant. (k) Lastly, the fourth factor, namely the degree of prejudice to the Respondents, was considered by the Court, which held that an appeal is only relevant if filed within the time prescribed by law. Applications made outside the prescribed timeframe without valid legal grounds may result in injustice between the parties. (l) The Court then referred to the case of HD v. WH [2015] SLRAU 20, where the appellate panel emphasised that the level of prejudice to the Respondent is a critical factor to be considered. It is also linked to the prejudice that may be suffered by the Applicant if the extension is not granted. However, if there is no likelihood of the Applicant succeeding in the appeal, the degree of prejudice to the Respondents is considered high. (m) In line with this authority, the Court found that the Applicant had failed to establish any reasonable basis indicating a likelihood of success in the appeal. Therefore, it was appropriate for the application to be dismissed. (n) Based on the analysis of the four factors outlined above, which the Applicant failed to satisfy, the Court was of the view that the Applicant had not demonstrated sufficient grounds for the application to be allowed or considered by the Court. Accordingly, the Court unanimously dismissed the Applicant’s application for an extension of time to file the Notice of Appeal. |
| Decision |
1. The Applicant’s Appeal Application is hereby dismissed. |
| Key Takeaways |
1. The applicant bears the burden of establishing sufficient grounds for an extension of time, failing which the application will be dismissed. 2. The Court held that pursuing an incorrect legal procedure (judicial review instead of appeal) does not constitute a valid reason for delay. The applicant’s misconception about the proper procedure is not an acceptable excuse 3. Section 238 of the Syariah Court Civil Procedure (State of Selangor) Enactment 2003 grants the court discretionary power to extend time periods, but this discretion must be exercised judiciously and in accordance with established principles. |
