1 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.

2 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:

3 I have in my judgment in Goh Siam Yong v Zacharia Norman Augustine & Anor [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) which section made no distinction between a final judgment and an interlocutory judgment, unlike s 34 of Cap 322. Counsel for the defendants, quite properly, invited me to reconsider my decision in the ligh t of the arguments of Mr Khoo Oon Soo, the then district judge (now Registrar of the Subordinate Courts), contained in a case note published in [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.

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

5 Put in syllogistic form, the argument is as follows:

6 The syllogism contains the startling premise that the district judge has appellate jurisdiction under O 55 but none under s 21. Where does this appellate jurisdiction come from? Mr Khoo says that there is a lacuna in s 21, but that ` probably` the lacuna is dealt with under s 69(3)(c) of Cap 321 which provides as follows:

7 In my view, there is no lacuna in s 21 of Cap 322 and s 69 of Cap 321 is merely an ordinary rule-making power. It is settled law that a rule making power regulates procedure and does not confer jurisdiction or power where there is none. Section 69(3)(c) provides for the making of rules for and concerning appeals from decisions of the registrar, but that is not the same thing as saying that it enables the Rules Committee to make the registrar`s decisions unappealable in any circumstances. If Mr Khoo` s analysis is correct, it would then be within the powers of the Rules Committee to make the registrar of the Subordinate Court a court of first and last resort , by the simple expedient of providing in the Rules that there shall be no appeal from the decisions of the registrar! This conclusion is so absurd that there must be something wrong with the premise.

8 The other absurdity, if Mr Khoo is right, is that by virtue of O 55 r 2 (whose validity is also in doubt since it is not founded on any substantive provision in Cap 321), there is an appeal from the district judge with respect to any interlocutory application with his leave, but there is no appeal at all if his judgment is final!

9 I start from the basics. The jurisdiction of the registrar of the subordinate courts is provided for in s 34 of Cap 321 which reads:

10 Order 32 r 8 of the 1986 Rules gives effect to s 34 by providing as follows:

11 Section 34 read with O 32 r 8 tells you the nature of the registrar` s jurisdiction. It is not primary but substituted jurisdiction. The jurisdiction and powers are conferred on the district court but are exercisable by the registrar by virtue of O 32 r 8, unless the district judge, with the concurrence of the Chief Justice decides otherwise. The jurisdiction and powers remain the same whether they are exercised by the district court or the registrar. Therefore, when s 21 of Cap 322 provides that there shall be an appeal from a decision of the district court, it has to be construed as applying to a decision of the registrar when exercising jurisdiction and powers as a substitute for the district judge. It is not so construed, then O 14 r 12 (permitting an appeal from the registrar to the High Court) would have no statutory justification. That is also why I pointed out in my previous judgment that what was merely an administrative arrangement for the allocation of judicial work (whereby the Senior District Judge allows the registrar to exercise the jurisdiction and powers of a district judge in certain matters) should not affect the right or appeal given by s 21 of Cap 322.

12 The nature of the jurisdiction of the district judge in hearing appeals from the registrar under O 55 is not the same as that in an appeal from the district court to the High Court or from the High Court to the Court of Appeal. Order 55 merely gives effect to the internal organization of judicial work whereby the Senior District Judge in permitting the registrar to exercise the jurisdiction and powers of the district court reserves to the district judges the power to hear ` appeals` from the registrar. It is, in substance, a form of confirmatory jurisdiction. In theory, the Senior District Judge has allowed the jurisdiction and powers of the district court to be exercised in two stages, one at the level of the registrar and the other at the level of the district judge. Section 69 of Cap 321 read with O 55 appears to permit this bifurcation. In principle, there is nothing wrong with this scheme so long as it is not treated as two separate and distinct jurisdictions. This means that there can be an appeal from the registrar direct to the High Court (as in O 14 r 12) or from the registrar to the district judge (as in O 55) and then to the High Court. Both arrangements are consistent with the principle that the jurisdiction and powers of the district court are the same whether they are exercised by the district judge or the registrar as a substitute for the district judge.

13 The situation in O 55 is analogous to ` appeals` from the decisions of the registrar of the High Court to the judge-in-chambers. In such appeals, the judge-in-chambers is not exercising ` appellate ` jurisdiction in the same sense when it hears appeals from the district court. This view is consistent with the rule that an appeal from the registrar of the High Court to the judge-in-chambers is by way of an actual rehearing of the application and the judge treats the matter afresh as though it came before him the first time, and the practice of allowing fresh affidavit evidence in such appeals.

14 In my view, Mr Khoo` s arguments are based on a failure to appreciate the jurisdictional hierarchy of the courts within the judicial system, and in particular the nature of the ` appellate` jurisdiction of the district judge when hearing an ` appeal` from the registrar. The district court has no appellate jurisdiction. It is this misapprehension that has led him to this three conclusions, all of which are untenable: (a) that there is not right of appeal against a registrar` s decision to the High Court on the ground that s 21 of Cap 322 has not provided for it, (b) that there is no right of appeal to the High Court against a district judge`s decision from an appeal from the registrar on the ground that s 21 does not provide for it, and (c) that there is a right of appeal to the district judge from the registrar` s decision on the ground that O 55 (made under s 69 (3) of Cap 321) has provided for it.

15 For the above reasons, I rejected the submissions of counsel based on Mr Khoo` s arguments and ruled that his preliminary objection had no merit.

16 Preliminary objection dismissed.