Introduction

Trial are conducted in open court and the party involved will present their evidence in court through their respective witnesses. The trial essentially involves the examination in - chief, cross examination and re- examination of witness and also the submissions by the respective litigants. The Judge whom an action is tried may give directions as to the order of speech at the trial. The order of speech normally will be as follow (O 35 R 4 of RHC) i) The plaintiff begins by making his opening address. He will set out the facts indicating the areas of dispute, summarise the legal principles involved, indicating areas where rulings have to be made and if necessary the pleadings and the agreed photographs, plan documents if any, are gone through; ii) The plaintiff calls his witness who will be subject to Examination in Chief by the Plaintiff¶s counsel, Cross-Examination by defence counsel and later Re-Examination by the plaintiff¶ counsel; iii) When all the plaintiff¶s witnesses have been called counsel for the defendant has the right, if he is calling evidence, to open his case; iv) v) The defendant will state the nature of his case and the evidence he seeks to produce; The defendant¶s counsel will call his witness who will be subject to Examination in Chief y the defendant¶s counsel, and then the plaintiff¶s counsel will make the closing speeches; vi) At the conclusion of the evidence the defendant¶s counsel, and then the plaintiff¶s counsel will make the closing speeches; vii) If a party entitled to make a final speech raises a new point of law or authority the opposite party may make a further reply only in relation to them. viii) If the defendant¶s counsel elects not to call evidence and wants to make submission of no case to answer then the plaintiff makes his closing speech followed by the defendant. From the trial procedure, it stated that defence may submit to not call any evidence in the court and make submission of no case to answer.
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What is submission of no case to answer?
µSubmission of no case to answer¶ means a submission by the defending party in a court action that the plaintiff's case is not sufficient for the defendant need to make any reply, either because of insufficient legal grounds or because of insufficient factual evidence. It so clear that, the defendant is the party which may be raise the submission of no case to answer on the ground it not sufficient for them to make any reply. From the definition above the defendant may choose to not make any reply in two situation; first, insufficiency of legal ground on the part of the plaintiff, second, insufficiency of factual evidence. In U.N Pandey v Hotel Marco Polo Pte Ltd, it would be desirable practice in our court to allow submission of no case to answer at the end of the plaintiffs case, without putting the defendant to his election, whether to call evidence or not, if his submissions fails. It is trite to say that we have young legal profession and a fused one. Most are small practitioners and engage in many fields of law. The time and effort put in litigation matters are diffused. Such a practice therefore will ensure not only that there is a thorough preparation of the case before trial, but also a careful presentation of it at the hearing. Altogether, the practice will bring about a saving of costs for the parties. Based on this case, submission of no case to answer is a practice made in civil cases and it was allow by our court to not make a any reply in civil cases. This practice also follow practicing from English cases.

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When it can be done?
As stated above, the defendant may elect to submit no case to answer in two situations; first, insufficiency of legal ground on the part of the plaintiff. Second, when there is insufficiency of factual evidence. This rule shows in following cases: In Abang Haji Jaya bin Datu Benteral v Chee Kian Sian1, it stated that when Magistrates adjudicating in civil cases they should normally follow the practice approved in English civil cases of not ruling that there is no case to answer until the defence have made their election whether they will call evidence. If the defence elects to give evidence, that evidence should first be heard. A distinction should be borne in mind between a case where at the close of the plaintiff¶s evidence the judge is asked to rule as a matter of law that the plaintiff has failed to establish his case, and a case where at the close of the plaintiff¶s case the judge is asked to rule that the evidence is insufficient to support it. Based on this case, the Magistrates must follow the English practice concerning submission of no case to answer. In U.N Pandey v Hotel Marco Polo Pte Ltd2 Sinnathuray J observed: 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 submission that, accepting the plaintiff¶s evidence its face value, no case has been established in law, and in the other that the evidence led for plaintiff is so unsatisfactory or unreliable that the court should find that the burden of proof has not been discharged. In Yuill v Yuill (1945), the petitioner husband sought the dissolution of his marriage with the respondent on the ground of adultery. When the case for the petitioner was closed, counsel for the respondent made a submission that there was no case to answer. A submission of no case to answer may be made either if no case has been established in law or the evidence led is so unsatisfactory or unreliable that the court should hold that the burden has not been discharged.
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(1958) SCR 12 (1980) 1 MLJ 4

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It also similar in Young v Rank3, in an action for damages for breach of warranty, for wrongful dismissal, and for conspiracy, before a judge and a city of London special jury, counsel for the defendants submitted at the close of the plaintiff's case that on the issues of breach of warranty and conspiracy there was no evidence to go to the jury. This submission the judge acceded to without putting counsel to election whether he was, or was not, going to call evidence, and, consequently, no election was made. It was held that the judge had discretion whether he would require counsel to elect either to stand on his submission or to call his evidence. Observations on the considerations which should be taken into account in the exercise of the discretion of the judge whether, on a submission of no case to answer, a ruling should be given at the close of the plaintiff's case or after taking the verdict of the jury.

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(1950) 2 KB 510

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What is the procedure?

In the Singapore Court of appeal in Tan Song Gou v Goh Ya Tian4 stated that the proper practice, if counsel for dependant wishes to make submission of no case to answer, is for the judge to refuse to rule on it unless counsel elects to call no evidence. The practice of submission of no case to answer is made up when the judge ask the counsel to call the evidence for his defence. It means that at the close of prosecution case, judge will ask the counsel for defence, the judge must ask clearly whether the defence will call for evidence. The judge also cannot ruling no case no answer unless the counsel elects there is no case to answer. By referring to Simirah v Chua Hock Lee v Anor 5, Thomson C.J stated as follows: ³having some conclusion the question arises what court should do in the view of the course taken at the trial by counsel for the D when he submitted that there was no case to answer.´ By referring to Parry v Aluminium Corporation Ltd, in cases of negligence if a judge is to rule at the end of Plaintiff¶s case that the plaintiff had made out no case it is most desirable that the should put counsel for the defence to his election as to whether he wishes to call evidence for the defence and should refuse to give ruling unless counsel elects to call no evidence. This case explain that if the plaintiff not discharge the burden of prove of the case, the judge is suggested to ask the counsel whether elects to give evidence or not. It also shown in Ramayee a/p Gengan (f) & 9 Ors 6on the issue of no case to answer, Mohd Dzaiddin J observed: Counsel for defendant then inform the court that he would submit there was no case to answer. Before deciding whether to accept his request, I reminded counsel of the election available to the defence and that his case would stand or fall on his submission of no case to answer. Counsel indicated that he would abide by such decision.
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[1983] 1 MLJ 60 (1963) MLJ 239 @ 241 CA 6 (1983) 21 CLJ 326

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Fact of the case is the plaintiffs claimed damages for negligence against the defendants as a result of a collision along Jalan Cheras, Kajang. The only witness for the plaintiffs was the widow of the driver (deceased) of the motor taxi involved in the accident and her evidence was solely on the loss of earning and on dependency. The defendants submitted "no case to answer". It was held that the plaintiffs had failed to prove negligence because an action of negligence the burden of proof falls upon the person alleging it. The balance of probabilities was in fact in favour of the driver of the motor taxi being negligent. In Alexander v Rayson7, µas to the inconvenience of asking a Judge sitting alone to hold that there is no case to answer at the conclusion of the evidence of the party on whom the onus lies. At the conclusion of the defendant's evidence the plaintiff's counsel submitted that there was no case to answer upon the two issues which at that stage had alone been presented to the Court, that is to say, the issues of no consideration and of illegality. Where an action is being heard by a jury it is, of course, quite usual and often very convenient at the end of the case of the plaintiff, or of the party having the onus of proof, as the defendant had here, for the opposing party to ask for the ruling of the judge whether there is any case to go to the jury, who are the only judges of fact. It also seems to be not unusual in the King's Bench Division to ask for a similar ruling in actions tried by a judge alone. We think, however, that this is highly inconvenient. For the judge in such cases is also the judge of fact, and we cannot think it right that the judge of fact should be asked to express any opinion upon the evidence until the evidence is completed. Certainly no one would ever dream of asking a jury at the end of a plaintiff's case to say what verdict they would be prepared to give if the defendant called no evidence, and we fail to see why a judge should be asked such a question in cases where he and not a jury is the judge that has to determine the facts. This, however, is by the way; for no one can suggest that, when the defendant's case upon the two issues had been concluded, she did not establish a prima facie case as to the facts on the second issue. Nor, of course, did the plaintiff's counsel make any such suggestion. What he did ask the learned judge to rule was that, accepting the evidence given on the defendant's behalf, there was no case to answer in law. We cannot help regarding this as not only an irregular but a most inconvenient procedure.
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(1936) 1 KB 169

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In Laurie v Raglan Co8, the judge should generally refuse on such submission by the defendant unless he makes it clear that the does not intend to call evidence. In Yuill v Yuill (1945), the petitioner husband sought the dissolution of his marriage with the respondent on the ground of adultery. When the case for the petitioner was closed, counsel for the respondent made a submission that there was no case to answer. The judge ruled against the submission without, however, having called upon counsel for the respondent to elect whether to call evidence or rely on his submission, and heard the evidence of the respondent and the corespondent. However, if there are more than one defendant and not all of the defendant submit no case to answer, in such circumstances the court ought to reject the submission of no case to answer and proceed to hear the evidence of other D before the court arrives at a decision as stated in case of Ng Neoh Ita & Ors v Maniam & Ors9. In this case, since the fifth and sixth defendant elected not to call evidence, they were bound by the election. However, they must be permitted to make final address. The court would have to hear the evidence of the other defendants and their witnesses and the full addresses 9including that of the fifth and sixth defendants) before determining whether the plaintiffs had made out case against any of the defendants. If defendant not clear to say that he would submit no case to answer, the court shall not restrain defendants right to call evidence. This is show in the case of Jaafar Shaari v Siti jama hashim v Tan Lip Eng10, Peh Swee Chin FCJ held that since counsel for the respondents did not actually say that he wished to make a submission of no case to answer, the trail court was under no obligation to put to the election of counsel that he would not call any evidence. The respondents had however chosen to close their case at the end of the appellant¶s case; and they were entitled to do so although they would be in peril of no having the evidence of their most important witness and having an adverse inference drawn against them for failing to call such evidence against them for failing to call such evidence should the circumstances require such an adverse inference to be invoked against them.

(1942) 1 KB 152 CA (1994) 1 MLJ 10 [1997] 4 CLJ 509 SC
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What is the effect?
Once a defendant in civil proceedings makes a submission of no case to answer and elects not to call evidence, then all the evidence led by the plaintiff must be assumed to be correct. In Yong Sze Fatt v Pengkalan Security Sdn.Bhd11, the defendant as a reasonable man have opportunity raised a complaint, protest or query with the plaintiff in relation to the contract notes, contra statements and letter of demand sent to his home address. He had not done so. It is now too late in the day to deny liability after the commencement of the suit, a fortiori, in this appeal. The defendant's conduct certainly calls for the application of the doctrine of estoppel. Doctrine of estoppel defined as a person was estopped from denying the losses arising from the trades conducted on his trading account. Thus, where a defendant is put to his election and elects not to call evidence, just like the present appeal, the result is the trial is in effect truncated and the question for the judge to consider is whether the plaintiff has established his case by the evidence called on the balance of probabilities. If the plaintiff has done so, then the judgment should be given to the plaintiff. If the plaintiff has not done so, then the judgment should be given to the defendant. If the judge chooses to gives judgment in favour defendant, the judge may indeed be of the view that there is no case for the defendant to answer. But such a judgment should not be given unless the judge finds that the plaintiff has not established his case by the evidence adduced on the balance of probabilities. It may be referred to Benham Ltd v. Kythira Investments Ltd case, where plaintiff¶s claim was dismissed and judgment given to defendant because there is no agency agreement in writing for the transaction existed, and for obvious reasons, plaintiff were unable to call X as a witness. At the close of plaintiff's evidence, defendant submitted that there was no case to answer. Based on the case, the judge may give the judgment whether to give in favour of plaintiff and defendant due to reasonable reason.
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(2009) CLJ

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Beside that, other effects is once D elects to made submission of no case to answer after clear warn by the court, in future, D not entitled to call evidence. It was stated in Ng Neoh Ha & ors v Maniam & Ors12, that since the fifth and sixth D elected not to call evidence, there were bound by the election but the judge is not bound to refuse, and if he does not put the party to his decision whether to call evidence or not, the latter retains his right to call it if his submission is fail.

Conclusion
The defendant may elect to submit no case to answer in two situations; first, insufficiency of legal ground on the part of the plaintiff and second, when there is insufficiency of factual evidence. The practice of submission of no case to answer will bring about a saving of cost and time of the parties and the court in which if the plaintiff case not established, it no need for the defendant to prolong the trial to reply. Therefore it was desirable in civil procedure so that the parties obtain immediate decision if the plaintiff case was fall above situation stated.

Comment
Upon being put to its election, the defendant will then either withdraw the application and the court shall proceed to hear the defendant¶s evidence, or the evidence is closed, and the parties proceed to final submissions, with the Claimant entitled to invite the court to draw adverse inferences from the defendant¶s decision not to call any evidence (if so advised). The judge will decide the case as normal on a balance of probabilities. We also agreed with this practice since it was desirable in our court and such practice may save time and cost of the parties nor the court itself.

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[1994] 1 MLJ 434

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References

1) Hamid Sultan Bin Abu Backer, Janab¶s key to Civil Procedure in Malaysia and Singapore, 4th edition, published by Janab (M) Sdn Bhd.

2) Ravi Neeko, Civil Procedure CLP series, 2nd edition, published by Lexis Nexis.

3) Ravindran Neeko, Practical Guide to Civil Procedure in Malaysia, International Law Book Services.

4) Jeffrey Pinsler, Civil procedure in Singapora and Malaysia, Singapore: Butterworths
Asia, 1994

5) law.jrank.org/pages/16422/no-case-answer.html

6) en.wikipedia.org/wiki/No_case_to_answer

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