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2020 MarsdenLR 998
HIGH COURT MALAYA JOHOR BAHRU
MUHAMMAD HAFIZAM NORDIN & ANOR – Appellant
Versus
MUHAMMAD AMIRUL AZHAR RAZALI & ANOR – Respondent
[Civil Appeal No: JA-12A-13-07-2019]
The court has discretion to allow the recall of witnesses post cross-examination if it serves the interest of justice without causing prejudice.
Headnote:(A) Evidence Act 1950 – Section 138(4) – Right to recall witnesses – Defendants appealed dismissal of their application to recall witnesses after cross-examination – Court affirmed that circumstances justifying recall existed, and therefore discretion should favor such recall in the interest of justice. (Paras 10, 25, 38)
Facts of the case: The appeal was made by the defendants against the dismissal of their application to recall witnesses, claiming that relevant documents were overlooked. The plaintiffs contended that allowing the recall would be prejudicial as they had closed their case.
Findings of Court: The appeal was allowed based on unforeseen circumstances, and no prejudice found for the plaintiffs, allowing justice to be served in the consideration of evidence effectively.
Issues: Whether the application to recall witnesses was justified despite being made post cross-examination.
Ratio Decidendi: A court has discretion to permit recall of witnesses post cross-examination when it serves the interest of justice and does not prejudice the opposing party. Recalling the witnesses allows for a comprehensive evaluation of the evidence.
Result: Appeal allowed with no order as to costs.
JUDGMENT
The Appeal
[1] This is an appeal ("this Appeal") by the 1st and 2nd defendants ("the defendants") against the decision of the learned Sessions Court Judge ("SCJ") on 21 July 2019 in dismissing the defendants' application ("the Application") to recall witnesses pursuant to sub-section 138(4) of the Evidence Act 1950 ("the Evidence Act").
The Brief Facts
[2] In the Sessions Court, the plaintiffs' claim was for damages suffered as a result of a motor accident along the Senai-Desaru Highway on 2 August 2015, between the 1st plaintiff riding motorcycle bearing Registration No JQA 2575, and the 1st defendant on motorcycle bearing Registration No JQX 381.
[3] The issue was regarding the identity of the parties and the vehicles involved.
[4] The defendants had filed their Bundle of Documents dated 23 October 2018, containing a letter dated 27 August 2018 and photographs (collectively "the documents") pertaining to the accident. According to the defendants, the documents indicated that the vehicles involved were motorcycles bearing Registration Nos JQA 2575 and JQC 6359, which was not the motorcycle ridden by the 1st defendant.
[5] Although the Investigating Officer ("SP1"), the 1st plaintiff ("SP3"), and the 2nd defendant ("SP6") (collectively "the Witnesses") had testified in the Sessions Court on 1 July 2018, 3 October 2018 and 14 November 2018 respectively, they were not cross-examined on the documents, as the same were filed only on 23 October 2018.
[6] I allowed this Appeal/Application, and the following are my reasons:
The Defendants' Case
[7] The gist of the defendants' case is that the documents are fundamental to their case, and that it is vital to recall the Witnesses to examine them on such evidence, to enable the Court to have a comprehensive narrative of the case, and to arrive at a just conclusion.
The Plaintiffs' Case
[8] The plaintiffs' case was that the Application was made too late in the day as the Witnesses had already been cross-examined, and that the plaintiffs had closed their case.
[9] The plaintiffs further contended that they would suffer prejudice if the Application was allowed, as they would lose the opportunity to sumbit on the failure of the defendants to cross-examine the Witnesses.
The Law
The Right To Recall A Witness
[10] The right of a party to recall a witness is provided in subsection 138(4) of the Evidence Act 1950 , which reads:
Section 138 - Order of examinations and direction of re-examination
...
(4) The Court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.
[11] Although ultimately it is the discretion of the judge in deciding whether to recall a witness, the overriding principle applying to such discretion is whether the interest of justice requires leave to be granted or refused. This was clarified by Arulanandom J in Ong Yoke Eng & Anor v. Lim Ah Yew, in the following words:
In civil proceedings, it is in the discretion of the Court of first instance to recall a witness or call further witnesses after his case is closed. Although under ordinary circumstances it may not be necessary or permissible to allow a witness once examined and dismissed by a party to be recalled for it is expected that the advocate will interrogate him on all material points touching his case, unforeseen situations may develop and there may be also inadvertent omissions. In such a case the Court may at its discretion allow a witness to be recalled, but surprise or prejudice to the other party should be guarded against. The objection by the defendant to the application was however not on these anticipated grounds. Nevertheless on allowing the application the Court granted liberty to the defendant to cross-examine the recalled witness and further witnesses and call evidence in rebuttal.
[Emphasis Added]
[12] There is no rule that
