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2022 MarsdenLR 2948
HIGH COURT MALAYA SHAH ALAM
IMEJ PARKING SDN BHD – Appellant
Versus
KOPERASI PERMODALAN FELDA MALAYSIA BERHAD – Respondent
[Civil Suit No: BA-22NCvC-163-06/2020]
The court's discretion to allow the recall of witnesses and introduction of documents must be judiciously exercised, especially when addressing prior procedural non-compliance and ensuring trial fairness.
Headnote:(A) Evidence Act 1950 – Section 138(4) – Application to re-call witnesses and introduce additional documents dismissed – The court has broad discretion in allowing witness recall; such discretion must be exercised judiciously, especially in light of prior procedural history – Past instances of late filing have been noted, raising concerns of trial fairness and efficiency. (Paras 6, 51, 53)
(B) Judicial Discretion – The court emphasized that discretion to re-call witnesses should only be exercised in exceptional circumstances to prevent injustice or misconception of case facts. The plaintiff’s repeated late filings indicated an attempt to rectify evidentiary weaknesses, which the court viewed unfavorably. (Paras 44, 49)
Facts of the case: The plaintiff sought to re-call two witnesses and introduce extensive new documents after previous applications for additional documents were dismissed, highlighting a history of non-compliance with court timelines. (Paras 2, 40)
Findings of Court: The court found that allowing the plaintiff to re-call the witnesses and introduce new documents would unfairly disrupt the trial process and disadvantage the defendant. (Paras 54, 55)
Issues: Whether to allow the plaintiff’s application to re-call witnesses and the introduction of new documents after significant delays during an ongoing trial. (Paras 3, 49)
Ratio Decidendi: The court determined that the plaintiff failed to demonstrate sufficient justification for the request; history of late document production and the potential impact on trial fairness and timelines were critical factors. (Paras 49, 51)
Result: Application dismissed with costs.
JUDGMENT
(Enclosure 97: Application To Re-Call 2 Witnesses And To Adduce Additional Documents)
Introduction
[1] The issue in Enclosure 97 application is whether the plaintiff should be allowed to re-call two of its witnesses and to introduce additional documents of hundreds of pages in the particular circumstances of the present case when the application is made in the midst of the full trial.
[2] On 19 May 2022 this Court exercised the discretion to dismiss with costs the plaintiff's application to re-call two of the plaintiffs subpoenaed witnesses who had finished their testimonial evidence in Court and who have been released as witnesses by the Court. This Court also refused to allow the plaintiff to introduce new documents of hundreds of pages which were intended to be used in the further examination of the two subpoenaed witness, if the re-call were to be allowed.
[3] Dissatisfied with the said decision, the plaintiff has appealed against the said procedural decision made in the midst of the full trial.
[4] In light of the apex Court's judgments in Asia Pacific Higher Learning Sdn Bhd v. Majlis Perubatan Negara , [2020] 2 MLJ 1 it is doubtful whether the appeal is competent.
Legal Principles
[5] The Court has a discretion whether or not to allow a witness to be re-called for further examination or cross-examination: Section 138 (4) of the Evidence Act 1950 .
[6] Section 138 (4) of the Evidence Act 1950 provides that "The Court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively."
[7] As s 138(4) of the Evidence Act 1950 does not describe how the discretion of the Court in connection with re-call of witness is to be exercised, the guidelines are to be obtained from the past decisions of the Court.
[8] This discretion is to be exercised judicially according to the particular circumstances of each case, and strong or cogent reasons must be given for re-calling the witnesses: Court of Appeal in Theow Say Kow v. Graceful Frontier Sdn Bhd .
[9] The principles, material facts and points on re-call of witnesses and introduction of additional documents in the midst of full trial in the decided cases cited by the parties here can be summarised below:
(a) "In civil proceedings, it is in the discretion of the Court of first instance to recall a witness or call further witnesses after his case is closed. Although under ordinary circumstances it may not be necessary or permissible to allow a witness once examined and dismissed by a party to be recalled for it is expected that the advocate will interrogate him on all material points touching his case, unforeseen situations may develop and there may be also inadvertent omissions. In such a case the Court may at its discretion allow a witness to be recalled, but surprise or prejudice to the other party should be guarded against. The objection by the defendant to the application was however not on these anticipated grounds. Nevertheless on allowing the application the Court granted liberty to the defendant to cross-examine the recalled witness and further witnesses and call evidence in rebuttal": per Arunanandam J in Ong Yoke Eng & Anor v. Lim Ah Yew, .
[Emphasis Added]
(b) In Tan Kah Khiam v. Liew Chin Chuan & Anor, [2007] 2 MLJ 145 the plaintiff applied to reopen his case in a defamation suit by calling another witness, to wit, a translator to prove the contents of the impugned article in the language of the Court in English or Bahasa Malaysia. While noting that it was not a case to re-call witness, the Court of Appeal observed that (i) the criteria for permitting a party at a trial to reopen its case for the purpose of wither recalling a witness or calling fresh evidence are very different from those that govern the statutory jurisdiction of an appellate Court to receive further evidence; (ii) at the trial s
