The court emphasized the necessity of allowing a defendant the opportunity to call witnesses and the fundamental requirement of translating legal documents into the national language, upholding procedural fairness.

Abu Bakar Jais JCA:

Introduction

[1] The appeal by the appellant ("defendant") to the Court of Appeal is against the High Court's decision in respect of a defamation and malicious falsehood claim filed by the respondents ("plaintiffs"). The appeal also relates to two specific actions of the learned High Court Judge ("HCJ") regarding procedure in handling the case to its conclusion. First, in striking out the respondents' claim and then retracting it. The other in not allowing the appellant to call witnesses.

[2] As both parties had waited some time without avail for the written grounds of judgment of the learned HCJ and since she has since retired, we proceeded hearing the appeal without the benefit of the same. At the end of the appeal, we were obliged to consider whether a retrial should be ordered. Parties hereafter will be referred to as they were in the High Court.

Background Facts

[3] The defendant is in the business of distributing beauty products. The 1st plaintiff is in the business of marketing and selling beauty products under its own brands. The 2nd plaintiff is the founder and Chief Executive Officer of the 1st plaintiff. The defendant was also the distributor of the 1st plaintiff's products.

[4] The pleaded case of the plaintiffs is that disparaging statements amounting to libel and malicious falsehood were made by the defendant in the latter's Facebook about the plaintiffs' products. These statements include asserting that one particular product of the plaintiffs' was harmful to the skin and the same was actually a mixture of another product by one manufacturer in Pakistan. It was also alleged in the Facebook by the defendant, according to the plaintiffs that the latter were more interested in profit than the safety of their products.

[5] The defendant in turn, in her statement of defence denied the allegations of the plaintiffs. In her counterclaim, the defendant stated that feedback from clients indicated that negative reactions were caused by using one of the plaintiffs' products, raising safety concerns regarding the use of the same. The plaintiffs, according to the defendant, thereafter had to issue an email to the distributors, recalling the products from the market. Further, the products were later certified by the National Pharmaceutical Regulatory Agency to be unsafe and prohibited the sales of the same. The plaintiffs later issued another email saying they would launch a better product with a security verification system. Attempts by the defendant to discuss the matter with the 2nd plaintiff were unsuccessful as the latter continued not to provide clarification. The defendant prayed for damages, among others, for the loss of business.

At the High Court

[6] Initially the learned HCJ struck out the claim by the plaintiffs. She decided to do so because the plaintiffs failed to file an opening statement. She then annulled her own decision without any application by the plaintiffs. Thereafter, she decided to allow the plaintiffs to make an oral opening statement and proceeded with the trial.

[7] She also decided to disallow the defendant to call witnesses because the defendant failed to provide a list of witnesses and failed to file witnesses' statements.

[8] At the end of the trial, the learned HCJ gave judgment for the plaintiffs. However, as stated, the learned HCJ did not write her grounds of judgment. As such, there is no way of knowing the reasons supporting her judgment.

Grounds Of Appeal

[9] Before us, the defendant decided to pursue and argue only four grounds of appeal, instead of the sixteen grounds listed in the memorandum of appeal. The four grounds are as follows:

(a) the learned HCJ was functus officio once she struck out the plaintiffs' claim;

(b) the plaintiffs failed to prove their claim;

(c) the learned HCJ erred in exercising her discretion pursuant to O 34 Rules of 2012 (" ROC ") in respect of the failure of both parties in adhering to instructions; and

(d) the plaintiffs failed to translate the