1. ) Muhammad Hafizam Bin Nordin v XXXX (JA-12B-92-11/2020)

MUHAMMAD AMIRUL AZHAR BIN RAZALI, merupakan seorang infan yang ingin menuntut kerugian melalui bapanya atau wakil litigasinya RAZALI BIN MOHD NOH

RAZALI BIN MOHD NOH ... PERAYU-PERAYU

ZURICH INSURANCE MALAYSIA BERHAD ... RESPONDEN-RESPONDEN [DALAM PERKARA MAHKAMAH SESYEN DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA GUAMAN SIVIL NO: JA-B53KJ-16-08 TAHUN 2016

MUHAMMAD AMIRUL AZHAR BIN RAZALI, merupakan seorang infan yang ingin menuntut kerugian melalui bapanya atau wakil litigasinya RAZALI BIN MOHD NOH

RAZALI BIN MOHD NOH ... PLAINTIF-PLAINTIF

ZURICH INSURANCE MALAYSIA BERHAD ... DEFENDAN-DEFENDAN] GROUNDS OF JUDGMENT (Court’s rulings dated 8.9.2024 and 18.9.2024)

The matter before this Court somehow has a chequered history.

It emanates from a running down action filed by the Plaintiffs against the 1st and 2nd Defendants in the Johor Bahru Sessions Court over a motor vehicle accident that took place on 02.08.2015.

Originally, the Writ and Statement of Claim dated 20.8.2016 was only against the 1st and 2nd Defendant. On 14.2.2018, the Writ and Statement of Claim were amended to include the 3rd Defendant, the insurer of the 2nd Defendant’s motorcycle. Accordingly, the 1st and 2nd Defendants had also amended their Statement of Defence.

The trial for the action commenced somewhere in 2018. The Plaintiffs had called 6 witnesses before they closed their case on 04.12.2018. Thereafter, the trial was continued with the Defendants’ case where 7 witnesses were called to testify on their behalves.

However, on 03.06.2019, the 1st and 2nd Defendant changed their counsel. The new counsel subsequently made an application on 19.06.2019 (vide Enclosure 73) to recall 3 witnesses for the Plaintiffs (SP-1, SP-3 and SP-6) for further cross examinations.

On 21.07.2019, the learned Sessions Court Judge (“SCJ”) dismissed the said Enclosure 73 (“SCJ’s interlocutory decision”).

On 29.07.2019, the 1st and 2nd Defendant lodged an appeal against the SCJ’s interlocutory decision to the High Court.

On 22.1.2020, the High Court through the decision of the learned Judicial Commissioner (as Her Ladyship then was) allowed the said appeal and overruled the SCJ’s interlocutory decision ("the HC decision”).

Dissatisfied against the HC decision, the Plaintiffs then lodged an appeal against the said HC decision to the Court of Appeal (“COA”).

The COA then allowed the appeal by the Plaintiffs on jurisdiction ground that the SCJ’s interlocutory decision in respect of Enclosure 73 is non-appealable by virtue of s.3 of the Courts of Judicature Act 1964 and on the authority from the Federal Court in Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia (2020) 3 CLJ 153 (“the COA decision”).

It is common ground that the SCJ, upon receiving the HC decision, had proceeded with the trial and had recalled all the witnesses named in Enclosure 73.

On 27.10.2020, after full hearing concluded, the learned SCJ dismissed the Plaintiff’s claim against the Defendants (“SCJ’s final decision”).

Arising from the said SCJ’s final decision, there are at present before this Court, three (3) appeals filed by the parties, registered respectively as:

JA-12B-92-11/2020 (appeal by the 1st and 2nd Defendant on quantum);

JA-12B-93-11/2020 (appeal by the Plaintiffs on liability); and

JA-12B-94-11/2020 (appeal by the 3rd Defendant on both liability and quantum).

The three appeals were then consolidated and fixed to be heard and disposed together vide order from the Court dated 13.07.2021.

Thus, the appeal before this Court now is against the SCJ’s final decision on 27.10.2020, or so it was thought.

However, during the opening of the hearing of the appeal, counsel for the parties appeared to have disagreement on an issue whether this Court must first determine and give direction on the correctness or otherwise of the SCJ’s interlocutory decision or to proceed with the appeal as per the SCJ’s final decision dated 27.10.2020, i.e. after the recalling of the witnesses named in Enclosure 73.

Each counsel had also addressed the court on the effect of the COA decision vis-à-vis s.3 of the CJA 1964 and the Federal Court’s decision in Asia Pacific.

Upon hearing counsel’s respective position and arguments, I find that the jurisdictional point as applied by the COA towards the HC decision would have the effect of leaving the interlocutory decision by the SCJ on Enclosure 73 open for this Court to re-consider it afresh. As such, I have treated the correctness or otherwise of the SCJ’s interlocutory decision as a preliminary point before I could proceed with the appeal proper.

I am also of the view that such step is of vital importance to be undertaken by this Court for the purpose of providing clarity to the parties in respect of what is appropriate to be put in their respective submissions, particularly on matters relating to evidence, during the hearing of the appeals against the SCJ’s final decision.

The effect would thus be that, if this Court is in agreement with the SCJ for his interlocutory decision, then the appeals would proceed on the basis that all evidence arose from the recalling of witnesses as named in Enclosure 73 will be expunged from the appeal records. If it is otherwise, then the appeal records as filed by the parties will stay as they are and will certainly be used and utilized in full during the hearing of the appeals proper. The Court’s ruling on SCJ’s interlocutory decision on Enclosure 73

For the purpose of deliberating on the SCJ’s interlocutory decision afresh, I was guided by the Rekod Rayuan Tambahan Bersama filed by the 3rd Defendant in appeal No. JA-12B-94-11/2020. Therein contained all the relevant cause papers and affidavits relating to Enclosure 73 filed in the Sessions Court and the Appeal Records filed in the High Court including the grounds of judgment by both SCJ and the HC.

On 08.09.2024, after having perused through the Rekod Rayuan Tambahan Bersama, this Court had indicated that it was more inclined to agree with the SCJ’s interlocutory decision, i.e. not to allow Enclosure 73.

Counsel for the 1st and 2nd Defendant however invited the Court to re-look into the COA’s decision and to defer to its decision on another date. Acceding to the said counsel’s request, the Court had fixed 18.09.2024 for further deliberation.

For ease of reference, the COA’s decision can be found as page 335- 337 of Rekod Rayuan Tambahan Bersama. The pertinent paragraphs read: - “MAKA ADALAH HARI INI DI PERINTAHKAN SEPERTI BERIKUT:-

Rayuan ini dibenarkan;

Pihak Responden Pertama dan Responden Kedua diberi kebenaran untuk mengemukakan rayuan terhadap Lampiran 73 di rayuan-rayuan di Mahkamah Tinggi Johor Bahru untuk mendengar semula perintah Mahkamah Sesyen yang menolak permohonan Responden Pertama dan Kedua untuk memanggil semula SP1, SP3 dan SP6 untuk pemeriksaan selanjutnya;

Rayuan-Rayuan di Mahkamah Tinggi Johor Bahru didengar di hadapan hakim baru;

Kos sebanyak RM3,000.00 dibayar oleh pihak Responden-Responden tertakluk kepada fi alokator.”

On 18.09.2024, this Court again reiterated its ruling as earlier announced on 08.09.2024.

Dissatisfied with the said rulings, the 1st and 2nd Defendant had filed an appeal to the COA against this Court’s aforesaid findings on the SCJ’s interlocutory decision.

Thus, the followings are the reasons for the said rulings.

Firstly, the legal principle on recalling of witnesses in civil cases has been summed up neatly in Silver Bird Group Bhd & Ors v Dato’ Tan Han Kook & Ors [2016] 1 CLJ 494 where Azizah Binti Nawawi HCJ (as Her Ladyship then was) had held, and of which I have no reason at all to differ, that: - “[12] Section 138(4) of the Evidence Act 1950, which gives the court discretion to recall a witness reads as follows:

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. [13] With regards to the issue of discretion in recalling a witness, in Ong Yoke Eng & Anor v. Lim Ah Yew [1981] CLJU 162; [1981] 1 LNS 162; [1982] 1 MLJ 226, the court held as follows: In civil proceedings, it is in the discretion of the court of first instance to recall a witness or call further witness 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 circumstances 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 ...”. [14] The decision in Ong Yoke Eng (supra) was cited with approval by the Court of Appeal in Tan Kah Khiam v. Liew Chin Chuan & Anor [2006] 4 CLJ 715; [2007] 2 MLJ 445, where the court held as follows: [7] In contradistinction to the decision in Yah bte Aji, Arulanandom J in Ong Yoke Eng & Another v. Lin Ah Yew [1981] CLJU 162; [1981] 1 LNS 162; [1982] 1 MLJ 226 held (so far as is material to the present instance) that: 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... unforeseen circumstances may develop and there may be also inadvertent omissions [8] In my judgment, the better view is that expressed in Ong Yoke Eng. A trial judge must be given a wide discretion on matters relating to evidence. After all, the Evidence Act 1950 itself places the matter of relevance and therefore admissibility upon the court. [15] At p. 724 (CLJ); p. 452 (MLJ), the Court of Appeal also held that: [6] whether the trial judge may exercise his discretion to permit re-opening of a party's case will very much depend on the stage at which the application is made. It may be more likely that discretion may be exercised at the stage where the application is made immediately after a party closes its case. But it may be less likely that discretion will be favourably exercised where the application is made after the defendants have closed their case and just before the trial judge is about to pronounce his judgment. In the spectrum of factual possibilities that exist between each of these two extremes the exercise of discretion would, in my judgment, very much depend as to where the justice of the case lies having regard to the peculiar facts and circumstances before the court. (emphasis added) [16] From the cases above, the courts have a wide discretion to recall witnesses after the case is closed, where the application is based on unforeseen circumstances which may develop or that there may be inadvertent omissions, subject to issue of surprise or prejudice to the other party. As such, it depends on the factual matrix of each case as to where the justice of the case lies.”.

In short, in deciding whether to allow or otherwise of the recalling of witnesses, the matter is totally at the discretion of the trial Judge. In exercising such discretion, factors relating to time whether the application was made promptly or otherwise, or whether there have been unforeseen circumstances that developed during trial or whether there has been inadvertent omission that necessitates for the witness to be recalled, are all relevant for the trial judge’s consideration. Still, those reasons must be subject to either surprise or prejudice that it may cause to the other party.

Now, upon perusing through the SCJ’s grounds of judgment in dismissing Enclosure 73 (pages 194 to 202 of Rekod Rayuan Tambahan Bersama), it is indeed obvious that the learned SCJ had applied the correct legal principles relating to recalling of witnesses under s.138(4) of the Evidence Act 1950.

Furthermore, it was also the SCJ’s findings that to allow Enclosure 73 would be very prejudicial to the Plaintiffs since it had already closed its case 6 months prior to the date of filing of Enclosure 73.

It must also be stressed here that the main reason for the recalling of witnesses as deposed by the new solicitors for the 1st and 2nd Defendant in her affidavit in support of Enclosure 73, was due to purported new evidence that came through a letter dated 27.08.2019 from the operator of Senai–Desaru Expressway together with a number of photographs taken on the date of accident. i.e. on 02.08.2015.

On this, the learned SCJ outrightly rejected the reason given on the grounds that those purported new evidence could have been obtained earlier had proper diligence been exercised by the former solicitors of the 1st and 2nd Defendant since the date of the accident was in 2015.

In this regard, on top of expressing my view that the learned SCJ is perfectly entitled to make such findings as the trial judge, I am also of the view that the so-called new evidence cannot be said to be ‘unforeseen’ by the 1st and 2nd Defendants during the Plaintiffs case. In fact, it has been the case for the 1st and 2nd Defendants through their Amended Statement of Defence dated 30.03.2018 that the involvement of motorcycle no. JQX 381 rode by the 1st Defendant in the alleged accident was expressly denied. In view of that, I hold that the 1st and 2nd Defendants had failed to satisfy the ‘unforeseen circumstances’ element as expounded by Her Ladyship Azizah Nawawi in Silver Bird.

In addition, if at all there might have been inadvertent omissions by the former counsel to obtain the purported new evidence or to cross examine the Plaintiffs’ witnesses on the said evidence, that by itself would raise a separate issue relating to solicitors’ professional conduct and such cannot be at the expense of the Plaintiffs’ position who had duly closed its case 6 months prior to the filing of Enclosure 73, What more, the Defendants had also proceeded their cases with 7 witnesses.

Finally, apart from the delay in filing Enclosure 73 being inadvertent, this Court also agrees with the SCJ’s findings that there is nowhere in the affidavits in support that proffered explanations for such delay. Since time is one the factors to be judiciously considered, the length of the delay and the absence of explanations for the delay would certainly be fatal to the 1st and 2nd Defendants in their application to recall witnesses as per Enclosure 73, and so I hold.

Thus, on the surrounding facts and circumstances relating to Enclosure 73, I agree with the learned SCJ that to allow Enclosure 73 would be prejudicial and will cause injustice to the Plaintiffs.

Based on the reasons as adumbrated above, I find that the interlocutory decision by the SCJ in dismissing Enclosure 73 is fully justified.

With that, I will proceed to hear the appeals with the evidence of the witnesses post-recalled to be expunged from the Court’s records. Dated: 3rd September 2025 t.t …………………………………………. (NOOR HISHAM BIN ISMAIL) Judge High Court, Johor Bahru Solicitors for the Applicant : JS Naicker M/s Naicker & Associates Kuala Lumpur Solicitors for the Respondents :