Metro Esquire (M) Sdb Bhd v Koperasi Pekerja Jaya Berhad (WA-22NCvC-768-11/2018)

This is an application by the Plaintiff pursuant to section 138 (4) Evidence Act 1950 (Act 56) and/or under Order 92 rule 4 Rules of Court 2012 and/or under the inherent jurisdiction of the Court for the following orders:

That the Plaintiff be granted leave to reopen the Plaintiff’s case by calling the Plaintiff’s witness, Dato’ Sri Wong Tzy Jian to testify regarding the documents 27/08/2025 17:15:39 WA-22NCvC-768-11/2018 Kand. 79 S/N y2yZ4g7ndUuPX4k0eCsiA listed in Annexure A dan Annexure B (Encls. 63,64 & 65) herein;

The Plaintiff be granted leave to produce the Plaintiff’s documents listed in Annexure A dan Annexure B herein and all documentary proof regarding the documents listed in the same Annexures;

If the orders in (a) & (b) are so granted, the Plaintiff to be granted leave to file the new Common Bundle of Documents whereby the contents of the documents are to be arranged in the chronological order;

An order for the further proceedings of this action herein (including the Court’s directions for the filing of the respective parties’ submissions) be adjourned and/or stayed pending the full and absolute disposal of the Plaintiff’s application;

An order for an interim stay be granted on the further proceedings of this action (including the Court’s directions for the filing of the respective parties’ submissions) be adjourned and/or stayed pending the full and absolute disposal of the Plaintiff’s Notice of Application; S/N y2yZ4g7ndUuPX4k0eCsiA

Cost of this application be costs in the cause; and

Such further and/or other reliefs as the Court deems fair and fit.

The brief grounds of this Application are as follows:

At the material time, the Plaintiff has given copies of the Plaintiff’s documents listed Annexure A to the then Plaintiff’s solicitors. However, after perusing the Common Bundle of Documents filed in Encls. 18 to 20 and the Notes of Evidence in Encl. 57 after trial on 3.3.2025, the Plaintiff discovered that the documents referred to in Annexure A were not incorporated and filed in the Common Bundle of Documents in Court.

Further, the new solicitors for the Plaintiff, the Plaintiff obtained the documents listed in Annexure B to be produced in Court, when the Plaintiff’s documents are important for the just and effective disposal of this action.

The Plaintiff was not asked and/or advised by the former solicitors with regards to the documents in Annexure B for the production of the same documents in Court. S/N y2yZ4g7ndUuPX4k0eCsiA

The Court must be furnished with the correct and complete information and evidence regarding this action for the just and effective disposal of this action and to assist the Court in arriving at a just decision for both parties.

On or around November 2018, the Plaintiff initiated this legal action against the Defendant, seeking to claim the sum of RM 7,382,034.00, which represents the losses suffered by the Plaintiff due to the Defendant’s breach and/or default under the terms of the Joint Venture Agreement dated 9. 8.2002 and/or the Supplemental Joint Venture Agreement dated 15.05.2013. Chronology of proceedings

For ease of reference, the relevant contemporaneous documents, proceedings, reference and dates can be gleaned from the table below: No. Documents Reference Date 1 Writ & Statement of Claim Encl. 1 19.11.2018 2 Trial 3.3.2025 3 Notes of Proceedings Encl. 57 16.4.2025 4 Change of Solicitors Encl. 60 5.5.2025 5 Notice of Application Encl. 61 9.5.2025 S/N y2yZ4g7ndUuPX4k0eCsiA

The cause papers filed in relation to Encl. 61 are as follows:

Plaintiff’s Affidavit in Support of Wong Tzy Jian filed on 13.5.2025 (Encl. 63, 64 & 65) and Reply Affidavit of filed on 18.6.2025 (Encl. 68);

Defendant’s Affidavit in Reply of Gopalakrishnan a/l V. Subramaniam filed on 4.6.2025 (Encl. 67);

Plaintiff’s Written Submissions (Encl. 70), Written Reply (Encl. 76) & Bundle of Authorities (Encl. 71 & 77); and

Defendant’s Written Submissions (Encl. 72), Reply Submissions (Encl. 74) and Bundle of Authorities (Encl. 73 & 75).

During the case management on 19.5.2025, prayers (d) and

were withdrawn in view of the Court’s direction with regards to Encl. 61 to be heard and disposed of first preceding the filing of written submissions and the oral submissions.

Subsequent to the trial on 3.3.2025, the Plaintiff raised certain questions and concerns to its former solicitors, Messrs Yeong & Mak and/or counsel (R.V. Lingam & C. Dannarajah of Messrs S/N y2yZ4g7ndUuPX4k0eCsiA R.V. Lingam & Co.) and has requested a copy of the Notes of Proceedings from them. After receiving and reviewing the Notes of Proceedings (Encl. 57) it became apparent to the Plaintiff that several documents previously provided to the former solicitors and/or counsel had not been included in the Bundle of Documents submitted to the Court.

The Plaintiff became dissatisfied with the services and/or the handling of the case by the former solicitors and/or counsel, and thereafter sought legal advice from the new solicitors. With the assistance of the new solicitors, the Plaintiff became aware of the manner in which the case had previously been conducted.

As a result of this dissatisfaction, the Plaintiff formally appointed Messrs. Azmi Fadzly Maha & Sim to take over the conduct of this case from the former solicitors and/or counsel (Notice of Change of Solicitors Encl. 60) Thereafter, the Plaintiff has filed this application herein at Encl. 61, following the legal advice from the Plaintiff’s newly appointed solicitors concerning the significance of the documents listed in Annexures A and B to Encl. 61.

The Submissions of the Plaintiff in a nutshell are as follows:

The documents are material and necessary to ensure justice is duly serve and to facilitate the just and effective disposal of the present proceedings. S/N y2yZ4g7ndUuPX4k0eCsiA

PW1 ought to be afforded the opportunity to be recalled for the limited purpose of clarifying the factual accuracy of matters pertaining to the said documents and to formally tender the documents listed in Annexure B during trial in order to substantiate and support the Plaintiff’s claim against the Defendant.

The inadvertent omission or oversight on the part of learned counsel during the earlier conduct of the examination in chief or cross-examination.

The Plaintiff’s application will not occasion any prejudice (if any may be adequately compensated by an award of costs) to the Defendant as the Defendant will be afforded the opportunity to cross-examine the witness whom the Plaintiff intends to recall (PW1) in relation to the said documents.

In a nutshell, the Defendant submits that there is no basis for the application both factually and legally, and accordingly the Defendant’s case is that there is no justification for the Court to exercise its discretion in favour of the Applicant/Plaintiff. The Defendant’s Submission is based on the following: S/N y2yZ4g7ndUuPX4k0eCsiA

the present application of the Plaintiff is an afterthought to plug the holes in its case;

there is no evidence whatsoever before this Court to the effect that the Plaintiff had actually given the documents listed in Annexure A to its previous solicitors;

the recall provisions in the Evidence Act 1950 viz-a-viz section 138 (4) ought not be resorted to when a party seeks to have a “second bite at the cherry” by introducing more evidence to support its case, when it was originally available, such as that which are listed in Annexure A & B;

that in any event, and more importantly, even if the application is allowed, it will not boost or aid the Plaintiff’s case as neither the Plaintiff, nor the sole witness of the Plaintiff are the makers of 122 out of the 124 documents that the Plaintiff is seeking to adduce through PW1 vide the present application; and

that the parties had prepared for the case with reference to documents in the Bundles of Documents and to allow the abduction of 124 new documents will entail in the calling of other witnesses by the S/N y2yZ4g7ndUuPX4k0eCsiA Defendant, and it will result in undue delay and unfair prejudice to the Defendant. The Law (Recalling of witness and reopening of party’s case)

The power to permit the recall of a witness and to reopen a party’s case is in the discretion of the Court, as provided by Section 138

of the Evidence Act 1950 (Act 56) which reads: “(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.”

In the Court of Appeal case of Theow Say Kow @ Teoh Kiang Seng, Henry v. Graceful Frontier Sdn Bhd & Ors and other appeals [2020] 1 LNS 52 decided inter alia as follows: “[107] Section 138 of the Evidence Act 1950 empowers the Court to permit in all cases, a witness to be recalled either for further examination-in-chief or for further cross-examination. It is a discretionary power. Where the Court exercises discretion in favour of recalling any witness, the parties have the right to further cross-examination and re-examination respectively.” S/N y2yZ4g7ndUuPX4k0eCsiA

The Court of Appeal in the case of Tan Kah Khiam v. Liew Chin Chuan & Anor [2007] 2 MLJ 445 at p. 453 decided as follows: “[9] The view I have to make is supported by the decision in TD Canada Trust v. McMaster et al [2003] BCD (Civ) 16394, where Garson J said: In Dudas v. Munroe [1993] B.C.J. 2035 (S.C.) (Q.L.), Braidwood J (as he then was) summarised the law concerning the court’s discretion to re-open a trial before judgment is entered as follows: In deciding whether or not to re-open a case, the governing considerations are first, would a miscarriage of justice probably occur without a re-hearing; and second, would a rehearing probably produce a change of result? The discretion to re-open a trial before judgment is entered is an unfettered discretion but one that should be used sparingly (Sykes v. Sykes (1995) 6 BCLR (3d) 296 (CA)) and has as its purpose the correction of what would otherwise be a miscarriage of justice (Kemp v. Wittenberg, 1999 BCJ 810 (SC))”

The High Court in the case of Ooi Cheng Huat @ Ooi Peng Huat (suing in his own name and as the executor and trustee of S/N y2yZ4g7ndUuPX4k0eCsiA the estate of Linda Patricia Lim Sooi Hong, deceased) & Ors v. Sime Darby Property Bhd and other cases [2023] MLJU 2553 sets out the following considerations to be taken into account in an application to recall an expert witness for further cross-examination after the completion of a trial and to reopen a party’s case solely for the purpose of the recall:

Whether it is in the interest of justice for this Court to allow the application to recall a witness;

(ii) Whether the proposed evidence is capable of assisting this Court to decide the dispute in a just manner;

(iii) Whether it was an unforeseeable matter which the counsel could not have raised previously;

(iv) Whether the evidence only came into being after the previous cross-examination;

Whether the evidence was not available to the counsel with reasonable diligence on his part at the time of the previous cross-examination;

(vi) Whether the recalling of the witness would prejudice the opposing party’s case; S/N y2yZ4g7ndUuPX4k0eCsiA

(vii) Whether there is an inordinate delay in making the application; and

(viii) Whether the parties have closed their case.

In Pernas Trading Sdn Bhd v. Senali Construction Sdn Bhd & Anor [1991] CLJ 439 at p. 443, the High Court stated in a case involving recalling of witness after the close of the defendant’s case and after submissions by the parties as follows: “It is settled law that parties in a civil case can only recall a witness subject to the discretion of the Court. In my view such discretion should never be exercised when it is made by the relevant applicant after the applicant has closed his case, a fortiori after he has made his final submission or after final submissions have been made by both parties save in only one exception which will be dealt with later. It would be idle then to talk of interests of justice for one side without speaking of justice to the other; when furthermore public interests require that there should be finality to litigation, and especially at the very late stage as in this case when the rules of trial would cease to be the hand-maiden and should become the mistress. It is not that such an applicant will be deprived of an opportunity to adduce evidence, for such evidence would have been easily available earlier and could have been easily adduced earlier.” S/N y2yZ4g7ndUuPX4k0eCsiA

In Jaafar Bin Shaari & Anor (Suing as Administrators of the Estate of Shofiah Bte Ahmad, Deceased) v. Tan Lip Eng & Anor [1997] 3 MLJ 693 at p. 706, the Supreme Court held as follows: “Following this interpretation, Report No 424/84, though included in Pt II of the ‘agreed bundle of documents’ could not be put in evidence without calling the maker. It is elementary that to call a maker or writer of a document is the best evidence or primary evidence of the document's authenticity or existence.”

I have read and perused the Affidavits, Written Submissions and Authorities filed by the Plaintiff and Defendant. I have also considered the Oral Submissions and Arguments forwarded and articulated by the respective parties’ counsel.

The Court is mindful that this case must be dealt with efficiently, effectively and expeditiously as this is a 2018 case. The Notice of Application (Encl. 61) under section 138 (4) of the Evidence Act was filed for the case to be reopened after full trial and to recall PW1 (Dato’ Sri Wong Tzy Jian) was filed post conclusion of trial on 3.3.2025 and preceding the oral submissions on 1.7.2025. S/N y2yZ4g7ndUuPX4k0eCsiA

The Court shall now deal with Paragraph 1 prayers (a), (b) and

only. Prayers (d) and (e) were withdrawn in view of the Court directions with regards to Encl. 61 to be heard and disposed of and that the written submissions and oral submission dates were vacated.

The Plaintiff was the former Director of the Plaintiff’s company. The question that arose is whether the Plaintiff was authorised to testify further in respect of the Plaintiff’s claim. In paragraph 27 of Encl. 72, the Defendant submits that when PW1 testified on 3.3.2025 he was not even a Director of the Plaintiff’s company and did not profer any evidence that he was authorised to give evidence by the Plaintiff.

On record the claim was brought by Metro Esquire (M) Sdn. Bhd. and not PW1 (Dato’ Sri Wong Tzy Jian). PW1 resigned as a Director in the year 2020 and he confirmed that he does not have any letter authorised by the Board of Directors to give evidence in Court. The representatives of the Plaintiff company were never present in Court.

Be that as it may, the application herein for PW1 to testify further under section 138 (4) of the Evidence Act 1950 and to produce the documents listed in Annexures A & B lacks locus as a former Director. In that respect, there was no cogent reasons reflected in the Affidavits of Dato’ Sri Wong Tzy Jian in Encls. 63 & 68 to S/N y2yZ4g7ndUuPX4k0eCsiA justify the statement that the documents and records are within the custody, control and care of PW1 and that he had full access. Flagrant incompetence

The Plaintiff’s counsel submits in paragraphs 24 of Encl. 70 on the inadvertent omission or oversight on the part of learned counsel during the earlier conduct of the examination in chief or cross-examination. Flagrant incompetence is sometimes used to describe the extent of the departure from the standard expected by counsel. There is no evidence to this effect and therefore the submissions of the same is devoid of merits. This Court is guided by the Federal Court case of Shamim Reza Abdul Samad v. PP [2009] 6 CLJ 93 at p. 101 (para. 8) as follows: “The trial could perhaps have been conducted with greater competence than that displayed by counsel who appeared for the appellant at his trial. But there was, on the material provided to us, there was no flagrant incompetence. In any event, no miscarriage of justice has been occasioned.”

To recapitulate, this trial commenced and concluded on 3.3.2025 and the Notice of Change of Solicitors was only filed on 5.5.2025 some 2 months after the conclusion of the trial. The action was then fixed for oral submissions on 1.7.2025 and has to be vacated when Encl. 61 was filed on 9.5.2025. S/N y2yZ4g7ndUuPX4k0eCsiA Summary of Court’s analysis.

The Court makes the following findings:

The Plaintiff’s application to reopen the Plaintiff’s case by calling the Plaintiff’s witness, PW1 (Dato’ Sri Wong Tzy Jian) to testify regarding the documents listed in Annexure A dan Annexure B herein is an abuse of the process of Court and will prejudice and cause injustice to the Defendant;

Further, the Plaintiff’s application to produce the Plaintiff’s documents listed in Annexure A dan Annexure B herein and all documentary proof regarding the documents listed in the same Annexures was filed without basis;

The Plaintiff’s application for leave to file the new Common Bundle of Documents whereby the contents of the documents are to be arranged in chronological order was also without basis and therefore disallowed in view of paragraph 25 (b) above. S/N y2yZ4g7ndUuPX4k0eCsiA

Based on the reasons adumbrated above, the Plaintiff’s Application in Encl. 61 is hereby dismissed with cost of RM5,000.00.

Consequently, the directions and dates for the filing of Written Submissions, Bundle of Authorities, Reply Submissions and Oral Submissions are to be fixed forthwith and thereafter to be dealt with expeditiously. Dated: 22 August 2025 sgd ………………………………………….. (EDDIE YEO SOON CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur Counsel for the Plaintiff: Ahmad Fadzly Abdul Ghani & Janice Chan Chee Teng Messrs. Azmi Fadzly Maha & Sim Kuala Lumpur. Counsel for the Defendant: M. Rajendra Kumar & S. Murugesan Messrs. Murugesan Sinnandavar & Associates Klang, Selangor. S/N y2yZ4g7ndUuPX4k0eCsiA