Suriyadi Halim Omar JCA:

[1] The panel heard this appeal and at the end of the hearing by a majority decision had allowed it with costs. My learned brother James Foong Cheng Yuen JCA had dissented. The facts and antecedent of the case are as follows: a writ and statement were filed by the appellant but the first defendant had failed to file a defence. The respondent's defence was simple in that it had no idea what the appellant was talking about, was unaware and never was involved in the accident, and had categorically denied ownership of the alleged motor lorry carrying number plate ZA 2596 at the material time. That defence was in reply to the statement of claim which had alleged that the said motor lorry was owned by the respondent.

[2] The appellant, a rider of m/cycle BEH 704, had claimed damages against the driver of m/lorry ZA 2596 (one Rahman Shah b Alang Ibrahim hereinafter referred to as the 1st Defendant), as the servant and agent of the Government of Malaysia and sued as the 2nd Defendant (hereinafter referred to as the respondent), for the injuries and damage sustained pursuant to a collision between them.

[3] The collision had occurred on 19 September 1997 at approximately 11.30am due to the alleged negligence of the 1st Defendant. The appellant had come from the direction of Trolak Timor, when the 1st Defendant driving the abovementioned motor lorry from the opposite direction had encroached onto the appellant's path, thus resulting in a collision.

[4] The respondent at the end of the hearing had submitted a no case to answer and had opted not to adduce any evidence. And despite the strong position of the appellant the subordinate Court had still dismissed the writ, not only against the respondent but also against the 1st Defendant who never even filed any defence. Being dissatisfied the appellant had filed an appeal against the whole decision. At the High Court the appellant was partially mollified when the learned Judge allowed the appeal against the 1st Defendant but not against the respondent. Still dissatisfied, as the appeal was only partially allowed an appeal was filed as against that unsuccessful part hence our hearing of this appeal. As stated at the outset we had allowed the appeal with costs.

Reasons For Allowing The Appeal

[5] I will start off with the issue of the respondent's submission of no case to answer This entails perusing the notes of proceedings, so as to gauge whether the procedures had been faithfully complied, and whether there was proper appreciation of the law prior to the dismissal of the appellant's case. The pertinent parts of the notes of proceedings merely state the following:-

Peguam Plaintiff:

Tutup kes

Peguam Persekutuan:

I saksi

Tarikh-11 May 2004

11 May 2004:

Peguam Plaintiff tidak hadir En Asnawi untuk Defendant (2)

Peguam Persekutuan

Pihak-pihak submit no case to answer dan tidak bercadang kemukakan keterangan.

Tarikh-20 May 2004 (hujah lisan)

20 May 2004:

Rujuk en 26

Tarikh-28 May 2004 (sambung bicara).

28 May 2004:

Brijnandan Singh untuk Plaintiff.

Asnawi untuk Defendant (2)

(From the above last date until 16 May 2004 nothing important happened as either the judge went on leave or attended a course at ILKAP or at one of the mention dates both parties did not appear in Court-my remarks)

16 July 2004

Baljit MOB untuk peguam Plaintiff dan peguam Defendant. mahkamah-keputusan seperti dilampiran (29).

Keputusan:

(The complete decision-my remarks)

[6] It is trite that when a submission of no case is undertaken, it means that a Defendant at the close of the plaintiff's case (in this case the appellant's) either had not made out a case in law, or the evidence was unsatisfactory or unreliable for the Court to hold that the burden had been discharged. In Storey v. Storey [1961] P 63, at p 5 the Court had opined in the following manner:-

There are, however, two sets of circumstances under which a Defendant may submit that he has no case to answer In the one case there may be a submission that, acceptin