Court's discretion in allowing additional witnesses hinges on compliance with case management directions and justification for late applications.

JUDGMENT

Awang Armadajaya Awang Mahmud JC:

(Enclosure 47)

Introduction

[1] This is an application to call additional witnesses pursuant to O 34 r 2(2)(e) and (i) Rules of 2012. After the calling of the Plaintiff's 1st witness, the Defendant applied for the calling of additional witness vide encl 47. These witnesses are as follows:

i. Farizal bin Abdullah, licensed surveyor.

ii. Land Administrator, Batu Pahat or the relevant and authorised officer from the Land Office, Batu Pahat.

iii. Prem Shobana a/p Gana Das, Solicitor.

iv. Kee Cheng Wei.

[2] Grounds for the application are as follows:

a. For witness (i) the evidence is sought to be adduced is the pre calculation plan on Lot PT 567 and PT 568, Minyak Beku sub District, District of Batu Pahat, State of Johore.

b. For witness no (ii) is the authorised officer who deals with acquisition and registration of the land.

c. For witness no (iii) is the solicitor who handled the tenancy agreement between parties.

d. For witness no (iv) the photographer who took the photographs and he is able to tender the photographs and explain the context of the photographs.

[3] The Cause Papers are as follows:

i. The Writ of Summons (encl 1).

ii. The Statement of Claim (encl 2).

iii. The Statement of Defence (encl 5).

iv. Reply to the Statement of Defence (encl 6).

v. Notice of Application (encl 47).

vi. Affidavit-in-support by the Defendant (encl 48).

vii. Affidavit-in-opposition by the Plaintiff (encl 49).

viii. Affidavit-in-reply by the Defendant (encl 50).

ix. Plaintiff's Reply to the Defendant's Affidavit-in-reply (encl 52).

x. Supplementary Affidavit by the Defendant (encl 54).

The Law In Respect Of Calling Additional Witness In An Ongoing Trial

[4] The matters that the Court must consider in respect of witness is found in O 34 r 2 which stipulates:

...

2. Pre-trial case management when directed by the Court (O 34 r 2)

(2) At a pre-trial case management, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the action or proceedings, including:

...

(n) whether the number of witnesses shall be limited and whether the evidence-in-chief of the witnesses specified be each limited to a single witness statement;

[5] In Hong Leong Assurance Berhad v. American Home Assurance Company-Malaysia , 2008 MarsdenLR 3592 , On 27 April 2005, his Lordship Justice Vincent Ng (as he then was), in conducting the case management, by agreement of parties, directed that the plaintiff was to file and serve their witness statements at least 21 days before the date of trial. The trial dates that were fixed then were 10 - 13 July 2006. The relevant part of the direction, as recorded in the minutes of the file reads:

Mahkamah: Ke 10-13/7/06 (Bicara Penuh). Dengan persetujuan kedua- dua pihak, pihak plaintif akan menfailkan (dan menyerahkan) witness statement affidavit sekurang-kurangnya 21 hari sebelum 10/7/06. Pihak defendan melakukan sedemikian 14 hari sebelum 10/7/06. (The words in square brackets are mine.)

(English translation)

Court: 10-13/7/06 for full hearing. With the consent of both parties, the Plaintiff is to file (and serve) the witness statement affidavits at least 21 days before 10/7/06. The Defendant is to do the same 14 days before 10/7/06.

[6] However, at the commencement of the trial on 18 March 2008 (the trial dates were earlier postponed twice at the instance of the Court to make way for pre-2000 cases), much to the dismay of the Court, this direction was not complied with - and learned counsel for the plaintiff requested for an adjournment so that the plaintiff could comply with the direction. Without the filing and service of the witness statements by the plaintiff, His Lordship Justice Hishamuddin was not able to proceed with the trial. His Lordship con