DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU

DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA

RAYUAN NO. JA-12B-92-11/2020

1. MUHAMMAD HAFIZAM BIN NORDIN

2. MUHAMMAD SYAZWAN BIN MAT RABI

...PERAYU-PERAYU

DAN

1. MUHAMMAD AMIRUL AZHAR BIN RAZALI

(merupakan seorang infan budak yang menuntut
melalui bapanya atau wakil litigasinya,
RAZALI BIN MOHD NOH)

2. RAZALI BIN MOHD NOH

3. ZURICH INSURANCE MALAYSIA BERHAD ...RESPONDEN-RESPONDEN

Dalam Perkara Mengenai Mahkamah Sesyen Di Johor Bahru

Dalam Negeri Johor Darul Takzim, Malaysia
Guaman No. JA-B53KJ-16-08/2016

ANTARA

1. MUHAMMAD AMIRUL AZHAR BIN RAZALI

(merupakan seorang infan budak yang menuntut
melalui bapanya atau wakil litigasinya,
RAZALI BIN MOHD NOH)

2. RAZALI BIN MOHD NOH ...PLAINTIF-PLAINTIF

DAN

1. MUHAMMAD HAFIZAM BIN NORDIN

2. MUHAMMAD SYAZWAN BIN MAT RABI

3. ZURICH INSURANCE MALAYSIA BERHAD ...DEFENDAN-DEFENDAN

=======================================================================

HUJAHAN TAMBAHAN
DEFENDAN / RESPONDEN PERTAMA & KE-2
=======================================================================

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Peguam bagi pihak Defendan / Peguamcara pihak Plaintif / Perayu-
Responden Pertama & Ke-2 Perayu

Tetuan Naicker & Associates Tetuan Teo & Associates

No. 33 (2 n d Floor), Jalan Desa Wisma S K Teo, No.84 & 86
Taman Desa Jalan Padi 1, Bandar Baru Uda
58100 Kuala Lumpur. 81200 Johor Bahru, Johor
[RUJ:NA/ZIM-421/BI/19/VC] [Ruj:TSK/AC/5742/2015/SITI]

Peguam bagi pihak Defendant /

Responden Ke-3

Tetuan Kanaga Suresh

57, Jln Nautika C U20/C,
Pusat Komersial TSB
(Tropicana Sungai Buloh)
40160, Shah Alam,
Selangor, Malaysia
[Ruj: KS/ZI/0112/20]

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Dengan Izin Yang Arif

Kami memohon izin untuk meneruskan hujahan balas ini dalam

bahasa Inggeris.

We shall refer to the parties as they appeared at the trial court.

This further submission is put forth in response to issues addressed

at the Hearing on 16.7.2023.

A. ISSUE NO. 1 – IS THE ORDER DATED 21.7.2019 APPEALABLE?

1. Learned counsel for the Plaintiff submits that the order made
on 21.7.2019 is not appealable. We respectfully submit that the
Learned Counsel’s contention is erroneous and misplaced.
Reference is made to the case of Asia Pacific Higher Learning
S/B, which was relied in extenso by the learned counsel. The
relevant passage is reproduced below:

[63] The exclusion of appeals against non-final decisions is intended to

prevent delays to trials occasioned by appeals of this nature during the course
of trial. Both learned counsel will realise of course that an aggrieved party
would not be prejudiced or be deprived of any right to appeal by the filtering
effect of the excluding clause in the definition of ‘decision’ as it would still be
open to the respondent, being the aggrieved party, to raise the impugned
ruling in the appeal proper which is pending before the Court of Appeal.

[64] The Federal Court in Karpal Singh Ram Singh v. PP [2012] 5 CLJ 537;
[2012] 5 MLJ 293 made the following decision on the point:

[17] From the above explanation it is obvious that Parliament is not

oblivious to mid-stream appeals that tend to stall proceedings and
delay speedy completion of cases. With justice not being served by

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 unnecessary delays, what with the amended meaning of ‘decision’
being crystal clear, such technical appeals that have the effect of
stalling hearings, are now things of the past … …

[20] A dissatisfied party is never deprived either of his right to appeal

after the conclusion of a trial, in the event he feels aggrieved with the
ruling made in the course of the trial, as that supposed error could be
raised in the appeal proper … (emphasis added).

In other words, a decision to allow this appeal does not mean that the
respondents have reached the end of the road on the matter in dispute in this
appeal for they may raise the ruling of the High Court as part of their
grounds of appeal (see Datuk Seri Tiong King Sing, at p. 854 para. [14]).

2. Based on the foregoing, it is respectfully submitted that the

order dated 21.7.2019 is appealable and properly before this
court and consonant with the order of the Court of Appeal dated
11.1.2021 which read as follows:

“Pihak Responden Pertama dan 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 Saksi SP1, SP3 dan SP6
untuk pemeriksaan balas selanjutnya.”

3. The Plaintiff is thus bound by this order. In fact, they sought

an adjournment for the hearing on 3rd April 2023 vide their
letter dated 30.3.2023 (enclosure 26), as they realised that
their earlier written submissions had overlooked to address the
issues in the interlocutory appeal.

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B. ISSUE NO. 2 – SHOULD A DECISION MADE PURSUANT TO AN
EXERCISE OF DISCRETION, BE DISTURBED ON APPEAL?

4. Learned Counsel for the Plaintiff submits that a ruling based on

the exercise of judicial discretion ought not be disturbed. He
referred to several cases, the locus classicus being Vasudevan
Vazhappulli Raman v T Damodaran & Anor. It was stated that
the exercise of discretion by the trial judge, can be set aside.
The passage is reproduced below:

There is a catenation of cases on this point and it will

suffice to cull and refer to a few which restate the
well-settled principles. An appellate court can review
question of discretion if it is clearly satisfied that the
judge was wrong but there is a presumption that the
judge has rightly exercised his discretion and the
appellate court must not reverse the judge's decision
on a mere "measuring cast" or on a bare balance as the
mere idea of discretion involves room for choice and
for differences of opinion (Charles Osenton & Co. v.
Johnston at page 148 per Lord Wright). The Privy
Council held in Ratnam v. Cumarasamy & Anor. that an
appellate court will not interfere with the discretion
exercised by a lower court unless it is clearly satisfied
that the discretion had been exercised on a wrong
principle and should have been exercised in a contrary
way or that there has been a miscarriage of justice,
referring to Evans v. Bartlam

5. The decision in Vasudevan’s case (supra) was affirmed again

by the Federal Court in Anwar Ibrahim v PP [2010] 1 MLRA 1
which held as follows:

We agree that this is a settled principle. Only that

there are qualifications. Some of which are that any
exercise of discretion based on an error of law or a
wrong principle or irrelevant consideration or which
resulted in a miscarriage of justice may be reversed by
an appellate court (see Federal Court case of

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 Vijayalakshmi Devi Nadchatiram v. Dr Mahadevan
Nadchatiram & Ors [1995] 1 MLRA 475; [1995] 2 MLJ
709; [1995] 3 CLJ 493; [1995] 2 AMR 2076). I

6. In this matter, the grounds of judgment by the Learned SCJ are

at pages 199 to 202 (enclosure 22 & 23), which I seek leave to
summarize:-

i) at paragraph 4 and 5 it is remarked that SP3 and SP6 had

completed their testimony on 2.10.2018 and 4.12.2018
respectively. At paragraph 6, the Learned SCJ concludes
that there are no merits in recalling SP-3 & SP-6 as it is
akin to allowing the Defendants to better their case.

ii) at paragraph 7, the Learned SCJ remarks that the report

from Senai – Desaru Highway could have been obtained if
the Defendants had acted diligently.

iii) at paragraph 8, the Learned SCJ remarks that the

application is filed late i.e after the Plaintiffs had closed
their case. At paragraph 9, the Learned SCJ remarks that
the application will result in prejudice to the Plaintiffs
and only refers to the authourities cited by Learned
Counsel for the Plaintiffs.

7. An analysis of the testimony will be insightful here. SP-1

initially testified on 15.5.2018. In his witness statement, he
stated as follows:-

- he was informed of the accident on 4.8.2015 at 11.15pm;

- he arrived at the scene of accident on 5.8.2015 at 4pm;

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 - the road was a single lane bi-directional road as per his
s/plan;

NOTE: Pursuant to his testimony, the insurer conducted

further investigations to ascertain the actual scene
of accident. Hence the procurement of the Desaru –
Senai report.

8. Pursuant to the order to recall SP1, he testified on 11.3.2020

as follows:-

- he had a copy of the Senai Desaru Berhad report;

- the following was his testimony based on the Senai Desaru

report;

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9. We respectfully submit that the evidence of SP3 and SP6 upon
their recall formed part of the basis learned SCJ dismissed the
application primarily on grounds of delay

C. ISSUE NO. 3 - ENCLOSURE 73 IS DEFECTIVE

10. Learned Counsel for the Plaintiff contends that the application
is defective as it refers to an unrelated provision of the law.
The relevant portion of the document is reproduced below:

11. The Learned Counsel harps on the notation circled which inter-
alia reads “Aturan 94” but appears to have missed paragraph 2
which clearly refers to section 138 of the Evidence Act which
governs the recall of witnesses. “Aturan 94” is clearly a clerical
mistake as it should read Aturan 92 Kaedah 4”, a mistake which
causes no prejudice to the Plaintiff.

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12. In support of his contention, he refers to the case of Hong
Leong Bank Berhad v Empire Benefit S/B. Reliance on this
case is misplaced, as the application filed by the Defendants
was to strike out their own statement of defence, for which
there are no provisions in the Rules of Court 2012.

D. ISSUE NO. 4 - ENCLOSURE 73 DOES NOT CONTAIN A PRAYER

FOR THE PLAINTIFF TO RE-OPEN AND / OR RECALL
WITNESSES.

13. This submission is bizarre because section 138 (4) reads as

follows:-

(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.

14. This section empowers the trial judge with the discretion to
allow any witness to be recalled either for further “EIC” or
further “cross-examination” and thereafter the parties have the
right to further cross examine or re-examine the witness.

15. It is therefore not for the Defendant as the applicant for the re-
call application to pray on behalf of the Plaintiff.

16. In fact, at the hearing of the 1st appeal before Justice Evrol
Mariette Peters, the defence made an offer for the Plaintiff to
call or recall any other witness to testify to rebut any evidence
that may arise on the issue of liability. Proof of this is
reflected in the order dated 22.1.2020 at page 333 of Enclosure
24.

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17. Despite such a concession, the Learned Counsel for the
Plaintiff did not proffer any new witness or recall any of his
other witness to rebut the evidence that was elicited from SP-1,
SP-3 and SP-6.

CONCLUSION

18. Based on the foregoing, we submit that the Learned Trial judge
had erred in law and fact when he dismissed Enclosure 73. This
becomes pronounced when it becomes evident that he relied on
some parts of the evidence adduced by SP1 & SP6 in his
overall analysis of the factual matrix when he dismissed the
Plaintiff’s claim with cost.

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19. We pray that Enclosure 73 is allowed and the evidence of SP1,
SP3 & SP6 be retained and read in the hearing of the
substantive appeal.

We are obliged.

……....................................................
Solicitors of the 1st and 2nd Defendanr

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