In contract disputes involving multiple parties, prior conduct and joint arrangements may establish liability despite strict adherence to written agreements.

Background Facts

1. The 1st Defendant was the main contractor in a project known as the "Proposed construction and completion of Light Rail Transit (LRT) Infrastructure Works and Boulevard Packages at Precinct 3 & 4 for the Putrajaya Core Island Development Packages LRT-BLVD 103 & 104" [the project]. The 2nd Defendant was its subcontractor. By letter dated 2 April 2002, the Plaintiff agreed to supply ready-mixed concrete to the 1st Defendant on the terms and conditions as set out in the letter [the said agreement]. The Plaintiff duly supplied the concrete to the project site. All the delivery orders, invoices and statements of accounts issued by the Plaintiff bore the stamp and signatures of the 2nd Defendant. All payments were made by the 1st Defendant save for the amounts which are now the subject of the instant claim. The Plaintiff claimed from both Defendants the outstanding amounts but both of them refused to pay, with each Defendant contending that the other was liable.

2. At the outset of the trial, it was agreed that the case be determined by the single issue of who then was liable to pay for the concrete sold and delivered, is it the 1st Defendant or the 2nd Defendant, or both. This question was relooked just before trial commenced and the parties agreed that the issue rightly should be which of the two Defendants is liable to pay the Plaintiff.

3. The Plaintiff called two witnesses and then closed its case, at which point the 1st Defendant submitted that there was no case for it to answer and elected not to call evidence. The 2nd Defendant on the other hand, chose to adduce evidence. Consequently, the question was having made that election, did the 1st Defendant still have a right to cross-examine the 2nd Defendant's witnesses. Whether by making such a submission, the 1st Defendant not only lost the right to call evidence but the right to participate further in the proceedings. After hearing counsel, I ruled that the 1st Defendant's right to cross-examine the 2nd Defendant's witnesses was preserved, subject to there being no indirect effect of adducing evidence. I gave my reasons for my ruling but in view of the significance of this related issue, I felt it best to set out my reasons in full.

Submission Of No Case By One Of Two Defendants

4. Order 35 rule 4(5)(c) of the Rules of the High 1980 provides for the order of speeches where there are several Defendants and where one of them opts to adduce evidence while the other proceeds to adduce evidence. It does not however, deal with the matter of the right to cross-examine witnesses in such circumstances. For this, one must bear in mind the significance of the election when a Defendant submits there is no case to answer, be it because the plaintiff has not established its case or that the burden of proof has not been discharged. This becomes trickier when there are several Defendants involved, each taking a strategic judgmental call in order to advance their diametrically opposing interests, each seeking to exculpate and establish blame on any other save on itself. The election must be made; otherwise an unsuccessful Defendant whose submission of no case to answer has been rejected by the Court may then call evidence. Generally, a Court should try cases in its entirety, taking all evidence and hearing all the parties before making a determination. In a situation where there are multiple Defendants, that would include the evidence to be offered by the Defendants who have opted to adduce evidence. Otherwise