Abdul Kadir Sulaiman JCA:

Maxisegar Sdn Bhd, the appellant, had appealed against the entire judgment of the High Court given on 7 March 2001. We had on 5 May 2005 dismissed the appellant's appeal with costs. We now give our reasons for doing so. Before that, we will deal with the appellant's motion in the appeal, to adduce fresh evidence which was not then before the learned judge.

We had on 24 February 2004 dismissed the appellant's notice of motion to adduce fresh evidence at the hearing of this appeal. The appellant had in this notice of motion sought leave of this court to admit the respondent's Directors' Report and Audited Accounts for the years 1997 and 1998 extracted from the Registry of Companies (Company Accounts) as further evidence at the hearing of this appeal proper.

We had after hearing the appellant's counsel dismissed the notice of motion with costs. We did not call upon the respondent's counsel to respond as we formed the view that the appellant's application to adduce fresh evidence did not meet the prerequisite conditions. We now give our reasons for the dismissal.

The power of this court to grant leave to admit fresh evidence at the hearing of the appeal is governed by s. 69(3) of the Courts of Judicature Act 1964 and r. 7(3A) of the Rules of the Court of Appeal 1994. "The special grounds only" referred to in s. 69(3) of the Courts of Judicature Act and the tests set out in r. 7(3A) of the Rules of the Court of Appeal 1994 are generally known as the Ladd v. Marshall conditions. It is settled by various decided cases that the three conditions are cumulative and conjunctive in effect and are not disjunctive in that all the conditions must be fulfilled before such leave to admit fresh evidence be granted. The said three conditions were also referred to by Thomson LP in Lam Soon Cannery Co v. Hooper & Co [1965] 2 MLJ 148 at p. 148 as follows:

It is common ground that applications of this sort are regarded by this court with considerable circumspection and the principles that have been applied in relation to them are stated as follows by Lord Denning in the case of Ladd v. Marshall:

To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed or in other words, it must be apparently credible, though it need not be incontrovertible.

I pause to observe that these conditions are not alternative; they are cumulative.

See also the judgment of Suffian FJ in Lau Foo Sun v. Government of Malaysia [1970] 2 MLJ 70 at 71 and Chai Yen v. Bank of America National Trust & Savings Association [1980] 2 MLJ 142 at 143.

In the present case before us, we found that the appellant's supporting affidavits did not explain fully why the evidence could not have been made available in the court below and why it could not by the exercise of reasonable diligence have been obtained for use at the trial there. This requirement is clearly stated in theEnglish Supreme Court Practice 1997, vol. 1 at p. 1004 as follows:

59/10/14 Mode of application for leave to adduce further evidence ...

... The application must be supported by an affidavit deposing to the facts relied upon in support of the application. In particular the affidavit should explain fully why the evidence was not called in the court below, and where the Ladd v. Marshallcriteria apply, why it could not, by the exercise of reasonable diligence, have been obtained for use at the trial ...

We found that the appellant's supporting affidavits did not state these relevant facts in order to fulfill the requirements for the admission of the so-called fresh evidence before us.

The appellant had also failed to