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Published online by Cambridge University Press: 21 October 2015
The court that heard the first appeal consisted of Mr. Justice D.E.C. Evans (President), Mr. Justice Paul Storr and Mr. Justice W. Thorogood. The appellant, Che Aminah, was represented by Dr. C.H. Withers-Payne (Mr. D.K. Walters, who filed the appeal on 22 May, being ill) and Mr. Ayyamperumal Muthuswamy. Mr. Kenneth Gould appeared for the respondent, the Consul-General for the Netherlands.
The court unanimously set aside the orders made by the Chief Justice on 22 April and 19 May. All costs, at the earlier hearings and in the Appeal Court, were awarded to the appellant, Che Aminah.
The orders were set aside on the ground that the originating summons had not been served on anyone; in particular it had not been served on Che Aminah and Maria, both of whom were named in it and were, in the opinion of the court, necessary parties. No authority to dispense with service had been sought or obtained, nor had there been a waiver of service on behalf of Maria. Thus the requirements of the Rules of the Supreme Court as applying to actions under the Guardianship of Infants Ordinance had not been met. The Appellate Court held that, therefore, the proceedings were a nullity.
The court also found some ambiguity relating to the role of the Consul-General. The claim for custody was based purely on the parental rights of the father but the court was informed that the Consul-General was not acting as agent for the father but in his capacity as Consul. There was no evidence that the Consul-General had been specifically empowered to act for the parents, nor of the father's ability to maintain Maria, nor even of his continued existence.
The proceedings, commented the court, seemed to have been instituted with altogether undue haste and without adequate care for no better reason than to keep Maria within a purely casual jurisdiction, Che Aminah having indicated her intention to return, with Maria, from Singapore to her home in Kemaman. This procedure, said the President of the Appeal Court, had nothing to recommend it.
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