In Datuk S Nallakaruppan & Ors v Datuk Seri Anwar Ibrahim & Other Appeals [2015] 6 CLJ 425, Abdul Aziz Abdul Rahim, JCA who delivered the judgment of the Court of Appeal, agreed with the plaintiff’s learned counsel’s submission that s. 43 of the Evidence Act 25 1950 prohibits a judgment in another case and the reasons or opinions, which are obiter in that judgment, to be brought in as evidence in a subsequent case unless it can be brought in within the “exception” under that section. Therefore, the learned Judge held that the fact in issue in each case must be proved independently and that 30 86 the court in the subsequent case has to decide it on the materials before it exercising its own independent judgment. The learned Judge said as follows at pgs. 435-436: “No doubt judgment of court consists of opinion of the court as to the facts and evidence adduced before it. However, s. 43 is very 5 clear that judgment, order and decree is irrelevant unless they can be brought within the "exception" under the section. In this respect, learned counsel for the plaintiff submitted if s. prohibits a judgment to be brought in as evidence, fortiori reasons or opinions which are obiter in the judgment cannot 10 also be brought in as evidence. We agree with this submission. Learned counsel for the first defendant in Appeal No: 153 argued that the remark by the Federal Court in the 2004 case is not an obiter but it is an opinion based on evidence. However, we must 15 emphasise that the remark was based on inadmissible evidence. So technically and judicially speaking therefore, there is no evidence to support that remark. In the circumstances, it remains a personal opinion of the learned judge who had expressed it. Thus, such remarks as evidence of facts in 20 another case would have little or no probative value. Our s. 43 is in pari materia with s. 43 of the Indian Evidence Act. Based on the Indian authorities cited to him, learned Judicial Commissioner concluded that the rationale for the enactment s. is that every case is to be treated as a class by itself; and the 25 production of a previous judgment merely establishes the existence of a prior decision. There is no presumption that a prior judgment is the correct decision on the matter. What the law of res judicata establishes is that one cannot go behind the decision in certain similar factual cases based on the ground 30 87 of public policy. The fact in issue in each case must be proved independently. The rational underlying s. 43 can be gleaned from the statement in Hollington's case (supra) which is as follows: "The court which has to try the claim for damages knew nothing of the evidence that was 5 before the criminal court. It cannot know what arguments were addressed to the court or what influence the court in arriving at its decision. Moreover, the issue in the criminal proceeding is not identical with that raised in claim for damages.". In other words, as said in the Indian case of Gopalkrishna Gupthan v. Annmalu 10 Ammal AIR [1972] KER 196: ... it is the duty of the court to scrutinise the soundness or validity of opinion evidence exercising its own independent judgment. In the case of a previous judgment such scrutiny is impossible because the court trying the subsequent case 15 cannot reopen the case and hear it on the merits as if the court is hearing an appeal or is retrying the previous case on fresh evidence. The court in the subsequent case has to decide it on the materials before it exercising its own independent judgment.... 20 In the face of overwhelming authorities locally and from foreign jurisdictions in particular UK (before the statutory intervention) and India that had been considered by the learned Judicial Commissioner that a judgment in a criminal case cannot be used 25 as proof of a fact in issue in a civil case for claim for damages, we are inclined, as the learned Judicial Commissioner did, to agree with the above statement.” (Emphasis added). 30