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1998 MarsdenLR 1260
HIGH COURT SABAH & SARAWAK, KUCHING
MUHAMMAD KAMIL AWANG J
JONG CHUK
versus
CHONG TUNG SANG
SUIT NO: KG 104/94/II
Decided On : 11-25-98
For the plaintiff - Wong Kim Fatt (Albert Tang with him); M/s Chew, Jugah, WanUllok & Co Advoc
For the 1st to 5th defendants - Fabian Lim; M/s Lim & Lim Advoc
For the 6th defendant & 3rd party - DP Naban (Malaka Nisau with him); M/sSulong Matjeraie & CoReported by Gan Peng Chiang
Key Points: - The motion to recall PW1, PW2, and PW3 for further cross-examination was disallowed with costs to the plaintiff and 1st-5th defendants (!) (!) (!) . - The court held there is ample evidence already before the court, no new issue, and recalling witnesses would amount to relitigating the case and prejudice the plaintiff (!) (!) (!) . - The legal framework cited includes discretion to recall witnesses, necessity to avoid prejudice, and reference to English and Malaysian authorities on recall after close of evidence, including Ong Yoke Eng v Lim Ah Yew and related authorities (!) (!) (!) (!) (!) .
How to recall witnesses after the close of a case in civil proceedings?
What is the court's ruling on the recall of PW1, PW2, and PW3 for further cross-examination?
What are the grounds for and against allowing a motion to recall witnesses in this case?
Muhammad Kamil Awang J:
This is a notice of motion under O. 8 r. 3 of the Rules of the High Court 1980, dated 4 August 1997 (encl. 175) taken out by the 6th defendant/third party (6D/TP) for an order to recall the following witnesses: PW1, PW2, PW3, DW1, DW2 and DW3 for further cross-examination on specific issues as set out in the annexure marked A thereto as follows:
ANNEXURE A
A. WITNESSES FOR RECALL
1. JONG CHUK (PW1)
(a) FURTHER TESTIMONY REQUIRED WITH REFERENCE TO ALLEGATION OF FRAUD
- events leading to the sale of the said land
- events after the sale of the said land
- circumstances which resulted in termination of the relationship between the Plaintiff and the 6th Defendant/Third Party to show that it was not as a consequence of the desire of the 6th Defendant/Third Party to build a water theme park or any other project
(b) FURTHER TESTIMONY REQUIRED IF RE-AMENDED DEFENCE AND COUNTERCLAIM OF 6TH DEFENDANT/THIRD PARTY IS ALLOWED TO STAND
- the above issues
2. CHONG TUNG SHIN (DW1)
(a) FURTHER TESTIMONY REQUIRED WITH REFERENCE TO ALLEGATION OF FRAUD
- events leading to the sale of the said land including why the 1st to 5th Defendants wanted to sell the said land and discussions that arose between them or their representatives and David Goh on behalf of the 6th Defendant/Third Party to show that there was no exercise of fraudulent misrepresentation
(b) FURTHER TESTIMONY REQUIRED IF RE-AMENDED DEFENCE AND COUNTERCLAIM OF 6TH DEFENDANT/THIRD PARTY IS ALLOWED TO STAND
- the above issues
- the performance if any of the contract by the Plaintiff
3. DENIS CHONG SING KONG (DW2)
(a) FURTHER TESTIMONY REQUIRED WITH REFERENCE TO ALLEGATION OF FRAUD
- issues identical to DW1
(b) FURTHER TESTIMONY REQUIRED IF RE-AMENDED DEFENCE AND COUNTERCLAIM OF 6TH DEFENDANT/THIRD PARTY IS ALLOWED TO STAND
- issues identical to DW1
4. CHONG TUNG FATT, JOSEPH (DW3)
(a) FURTHER TESTIMONY REQUIRED WITH REFERENCE TO ALLEGATION OF FRAUD
- issues identical to DW1
(b) FURTHER TESTIMONY REQUIRED IF RE-AMENDED DEFENCE AND COUNTERCLAIM OF 6TH DEFENDANT/THIRD PARTY IS ALLOWED TO STAND
- issues identical to DW1
B. SUBPOENAES ISSUED TO
1. ISMAWI BIN BATU (PW2)
FURTHER TESTIMONY REQUIRED ON ALLEGATION OF FRAUD
- knowledge of contract between the Plaintiff and 1st to 5th Defendants dated 22.10.1991
- knowledge of contract between 1st to 5th Defendants and the Plaintiff dated 25.5.1993
- objective in purchase of said land by 6th Defendant/Third Party
- relationship with 6th Defendant/Third Party
2. ERIC TAN KOK TIONG (PW3)
FURTHER TESTIMONY REQUIRED ON ALLEGATION OF FRAUD
- evidence as to circumstances why 6th Defendant/Third Party intended to terminate its relationship with the Plaintiff.
The motion is supported by the affidavit of the same date of David Goh Swee Chau of 6D/TP. The court had directed that this motion would be heard after 6D/TP had closed its case.
Brief Facts
The plaintiff entered into a development agreement (p. 4 agreed bundle) with the 1st - 5th defendants, who were the original owners of the land. The said land was later sold by the owners to the 6D/TP subject to the development agreement. Subsequently, 6D/TP refused to honour the development agreement and dismissed the plaintiff as the developer.
The plaintiff brought this action against the 1st - 6th defendants, and the 1st - 5th defendants in turn brought an action against the 6D/TP.
It was agreed that these two actions be tried together, and, based on the pleadings, the parties had agreed to be bound throughout the proceedings, by two documents, viz: 1. Agreed facts dated 9 November 1996 marked 'A'; and
2. Agreed issues to be tried of the same date, marked 'B'.
The plaintiff and three witnesses gave evidence (pp. 1 - 31 notes of proceeding), and each of the witnesses was cross-examined by both learned counsel for the 1st - 5th Defendants and for the 6D/TP.
After the plaintiff had closed his case, the 1st - 5th defendants (three witnesse
