The plaintiff had applied for summary judgment under Order 14 of the Rules of the High Court 1980 before the Senior Assistant Registrar, against Cheng Yang Poh for debts due, pursuant to some contra share losses. A transaction of those shares (YCS shares) was supposed to have taken place through one of the plaintiffs remissiers, one Esmail bin Nadziadin. Resisting that summary judgment application, the defendant had averred, inter alia, that he did not instruct the

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plaintiff or any of its remissiers including the said Esmail bin Nadziadin to transact the alleged 390,000 YCS shares on his behalf. Encountering only those bare facts, the Senior Assistant Registrar on November 26, 1999 had no qualms in allowing the summary application. Being dissatisfied, the defendant had accordingly filed an appeal as per Order 56 of the Rules of the High Court 1980 to the Judge-in-Chambers on November 30, 1999.

It is quite trite now that under Order 56 of the Rules of the High Court 1980, an appeal is by way of rehearing, and the Judge will consider virtually all matters afresh, well armed with wide discretionary powers en route to the attainment of justice. In the process he may permit the admission of further affidavits, and even additional evidence subject to costs if the necessity arises, a phenomenon or practice which is not uncommon in our courts (United Overseas Bank Ltd. V Heap Huat Rubber Co. Sdn Bhd (1993) 4 CLJ 191; Tiong Hun Ming v Kalimantan Hardwood Sdn Bhd (194) 3 MLJ 656Seloga Jaya Sdn Bhd v Pembinaan Keng Ting (Sabah)

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Sdn Bhd (1994) 2 MLJ 97; Evans v Bartlam (1937) AC 473; The Standard Chartered Bank v Kentland Sdn Bhd & Anor (1989) 1 CLJ 1126). Pertaining to the allowance granted by courts to justify admitting new evidence at the stage of an appeal, Lord Denning MR in Ladd v Marshall (1954) 3 All E.R 745 had occasion to lay down three conditions that necessitate fulfillment, viz.:

i. first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

ii. secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and

iii. thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently creditable, although it need not be incontrovertible.

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The above view was resoundingly approved by the Federal

Court in Lau. Foo Sun v Government of Malaysia (1970) 2

MLJ 70, and had been consistently adhered to by subsequent

cases. Not sufficiently satisfied with those judicial

pronouncements and loose arrangements, intertwined with the discretionary powers of the presiding Judge-in-Chambers, but restricted to any judgment, order or decision of the Registrar, Parliament took a giant step by statutorily legitimizing the admission of fresh evidence vide PU (A) 192/93 at the stage of the appeal before the Judge in Chambers. The new legislation saw the importation into the Malaysian judicial system Order 56 rule 1 (3A) of the Rules of the High Court 1980. The latter reads:

"At the hearing of the appeal fresh evidence shall not be admitted unless the Judge is satisfied that-

(a) at the hearing before the Registrar the new evidence was not available to the party seeking to use it, or that

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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 a determining influence upon the decision of the Registrar."

A rather unusual situation prevails now pertaining to appeals that emanate from the Registrar, as:

a. bearing in mind that an appeal emanating from

that officer is a rehearing, the Judge-in-Chambers

is at liberty to consider further affidavits for

consideration without much hindrance, subject to

the consideration of justice ;

b. an appeal from the decision of that officer being a

rehearing, and subject to costs perhaps, if the

prerequisites of Ladd