(Enc. 404, 413, 415, 417, 419, 421, 423 and 427)

On 11th May 2006, Danaharta commenced the Original Action against Tan Sri Dato' Tajuddin Ramli (TR) to recover the sum of RM589,143,205.57. On 29th June 2006, TR filed his Defence and Counter-claim. On 13th July 2006, he filed his Amended Defence and Amended Counter-claim. On 20th October 2008, the amended Defence and Counter-claim appears to have been further amended. The Counter-claim resulted in some 38 new Defendants being included as parties to this action. Most of the Defendants took the position that they had been wrongly included as parties to the Counter-claim. Not surprisingly therefore, most of these Defendants filed applications to have the Counter-claim against them struck out under O. 18 r. 19. One such application was by TRI and Celcom, the 10th and 11th Defendants. TRI and Celcom filed their application on 20th July 2006, only to have the same dismissed by the Senior Assistant Registrar on 28th August 2007. The appeal (Enc. 281) by them against this dismissal was fixed for hearing on the 29th April 2009. However, a few days before the hearing of the appeal, TR filed Enc. 404 under O. 56 r. 1(3A) of the RHC to adduce fresh evidence at the hearing of Enc. 281.

TR's application to adduce fresh evidence is supported by an affidavit affirmed by him. The evidence sought to be admitted are affidavits, submissions, pleadings affirmed or filed by one or more of the Defendants to the Counter-claim in related actions, and a letter written by TR to Tun Daim Zainuddin. According to the submission of Counsel for the Defendant, the fresh evidence demonstrates the Counter-claim commenced by TR against all of the Defendants to be demonstrably true. The application to adduce fresh evidence is made pursuant to O. 56 r. 1(3A) of the Rules of the High Court 1980.

LAW

O. 56 r. 1(3A), RHC 1980 provides that at the hearing of an appeal, fresh evidence shall not be admitted unless:-

a) At the hearing before the Registrar the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and

b) The fresh evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of the Registrar.

An application to admit fresh evidence must be supported by an affidavit which satisfies the requirements for admission of fresh evidence. The requirements are clearly cumulative since paragraphs (a) & (b) operate conjunctively. This rule introduced in 1993 is an important rule because prior to the introduction of this rule, appeals from a Registrar to a judge were by way of rehearing. To quote Gopal Sri Ram JCA (as he then was) in Milik Perusahaan Sdn. Bhd. v. Kembang Masyur Sdn. Bhd [2003] 1 CLJ 12; [2003] 1 MLJ 11 this "meant that either side could put in fresh evidence which was not available before the registrar". To quote His Lordship again "As a result of r. 3A, the principles governing an appeal from a registrar to a judge in chambers are now no different from those governing an appeal from a trial on merits from the High Court to this Court. On such an appeal to this Court, fresh evidence is not admissible unless the conditions set out in Ladd v. Marshall are met (see Lau Foo Sun v. Govt of Malaysia; [1970] 2 MLJ 70)".

Enc. 404

The thrust of TR's Counter-claim against the bulk of the Defendants is that all of them were involved in a conspiracy to cause the transfer of his TRI and Celcom shares, held by Danaharta, at an unrealistically low price to Telecom. As explained earlier, according to TR, the affidavits, pleadings, submission and the letter to Tun Daim sought to be introduced by way of fresh evidence affords further evidence of his conspiracy claim, and thereby refuting the claims of innocence on the part of the Defendants. As TR succeeded in resisting the O. 18. r. 19 application before the Registrar, his Counsel submits that the additional fresh evidence is