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Universiti Kebangsaan Malaysia Fakulti Undang-undang
Musbri Mohamed DIL; ADIL ( ITM ) MBL ( UKM )
Proceedings At Trial Failure To Appear Ord.35 r.1(1) When the trial of an action is called on and neither party appears, the action may be struck out of the list (list of cases for the day). However, the case can be restored back if there is any good excuse i.e. flood, accident etc. Ord.35 r.1(2) Where one party does not appear, the judge may proceed with the trial of the action or any counter claim in the absence of that party.
Ord.35 r.3 This is the general powers of the judge to adjourn the hearing as he thinks fit in the interest of justice to another day. It does not say under what circumstances that the judge may adjourn. It just says that if a judge thinks it expedient in the interest of justice. This discretionary power of the judge is very wide. Ord 35 r.2 A judgment or order obtained in the absence of the other party may be set aside an application to court. If made within seven days. The court may award costs against the party in default.
Order of Speeches ± Ord 35.r.4 There are two types of speeches i.e. short speech and long speech. Short speech is where the party may want to say something to judge before a case is heard i.e. submission by the parties. Here both parties argue points of law and facts at the end of the case. Ord.35.r.4 (1) Judge may give direction as to which party begin the case. In practice very seldom the judge does this. He gives it to the solicitor becox they know who should begin case. Ord.35.r(2) P shall begin the case by opening his case, by making a short speech. The P solicitor will rise and tell the court what the P¶s case is, how many witnesses he propose to call, what is the issues that he has. Then he will call his witnesses to give evidence.
Ord.35.r.4(4) If D elects to adduce evidence, he may after any evidence on behalf of the P has been given, open his case. And then after D give his evidence he may make a second speech (long speech) closing his case. Then, the P may make a speech (long) in reply and close the case. Note : Mode of examining witnesses When the P give his evidence, the evidence adduce in examination in chief is subject to examination by the other party and to reexamination. He next calls the evidence of his witnesses, the process of cross examination being repeated. After he has led all the evidence he has, he closes his case. The process is repeated while D given his evidence.
Ord.35.r.4(3) If the D elects not to adduce evidence then whether or not the D has in the court of examination of a witnesses for the P or otherwise put in a document the P may after the evidence on his behalf has been given make a 2nd speech closing his case and the D state his case. (If D elects not to adduce evidence it is the P who has to make his 2nd speech (long) to close his case. Then after that D can make long speech.)
Ord.35.r.4(7) When the party making final speech raises a fresh point of law the opposite party may make further speech in reply but only in relation to that fresh point. E.g. if D brings in a new points of law during his speech then the P may reply on that point. Ord.36.r.6 Where a party of any action dies after the findings of fact and before the judgment is given, the judge may give his judgment not withstanding the death.
Ord.36.r.11 When a judge who has commenced a trial of any proceedings is unable due to death or illness or another cause to conclude the trial, the case may be continued another judge who may recall any witnesses or the case may be heard denovo. In other words all over again. E.g. The party will be asked whether the case can be continued by another judge. If one of the parties disagree then the case will be denovo. At the conclusion of trial judge will give his judgment at the end of the case either :On the same day or Adjourned the case for another date. *The judgment must be pronounced it open court in the presence of parties.
The New India Assuarance Company Ltd v Karam Sigh  2MLJ 26 The appelants/plaintiffs¶ claim was for the return of $1,522.67 paid to the respondent/defendant under a mistake of fact on the ground that the respondent made a false and frudulent claim under policy of insurance in respect of the respondent¶s motor car. The plaintiffs filed an action in the sessions court on 25 June 1967 for the recovery of the size sum, but which action was dismissed as neither the plaintiffs¶ representative nor their solicitor was present in court on the date of the hearing. On 25 November 1968, the plaintiffs¶ application under Ord.9 r.2.3(3) of the Subordinate Court Rules, 1950, for the setting aside of the order dismissal with costs. On 31 May 1969, the plaintiffs¶/appelants commenced the present action in respect of the same subject matter. On 28 August 1969, the learned president ordered that the suit be dismissed with cost on the ground that the court was functus officio
The plaintiffs appealed. Allowing the appeal :(1) The learned president became functus officio as regards the earlier action on his refusing the appellants¶ application for its reinstatement, but he did not become The learned president became functus officio as regards the real dispute between the parties which he never tried; (2)Since the matter substantially in issues between the parties in the earlier action had not been heard and finally determined by the learned president, the plea of res judicate was not available to the respondent in the present action. (3)Therefore, the order appealed from must be set aside, and the learned president must hear and determined the action. * functus officio - the magistrate function has been completed after he has made his decision (it talks about judge who makes decision) * res judicate ± when a matter has been finally adjudicated upon by a court of compelent jurisdiction it may not be reopen or challenged by parties or their representative (it refers to case itself)
Thye Lam v Eastern Shipping  26 MLJ This matter came before the Court under Ord 25.r.2 of the Supreme Court, 1967 for the determination of the preliminary point of law raised by the defendant. In their pleadings, that the plaintiffs claim was barred by limitation of time in that the suit was not instituted within one year from the date when the cause of action across. Held: the time of limitation must succeed, as the suit was not instituted within the period prescribe by the Hegue Rules in corporated in the Indian carriage of Goods by Son Act 1925. Lim Ker v Chew Seok Tee  2MLJ 253 The judge is not allowed in a civil action to call a witness without the consent of the witness. Note : Recalling witnesses may be for various reasons i.e. to clarify certain matter or to clear contradictory evidence given. Any party can recall his witness to give evidence however it is the discretion of the court and normally the court will allow. The other party must be given chance to examine. Same goes to calling further witnesses.
Rule Of Submission Of No Case To Answer At or after the conclusion of the evidence for the P the D must decide whether to call evidence or whether to submit that he has NO CASE TO ANSWER. If D submit no case to answer, the judge will not ordinarily decide till the D undertakes and informs the court that he does not intend to adduce any evidence and that he intends to rely on the submission alone. Then the judge will decide. Goh Ya Tian v Tan Song Gou  2MLJ 317 If at the end of P¶s case counsel for D wishes to make submission of NO CASE TO ANSWER the judge should refuse to rule on it unless counsel for D elects to call no evidence.
Trial Introduction It is important to distinguish between hearing in chamber and hearing in open court. (a) Hearing in chambers is hearing of application through affidavit e.g. application for summary judgment, injunction, struck out, amendment of pleadings. Here the evidence are in the form of affidavit. (b) Hearing in open court there is a claim by the P and there is a defense by the defendant. In trial witnesses are called to give evidence. Many rules of evidence are applied. The action is now ready for hearing. The pleading have been looked at and any amendments necessary have been made. Consideration was given whether or not the action should be withdrawn or settled. Direction of the court in a summons for direction has been asked. In this stage it remains to consider: (a) the mode of trial: Ord.33 (b) setting down the trial of an action begun by writ : Ord.35 (c) the conduct of the proceedings at the trial Ord.35
Mode Of Trial : Ord. 33 Ord.33 r.1 There are three mode of trial namely: Trial before a judge sitting alone Trial by a judge with assessors Trial before a registrar The most common mode is by a judge sitting alone. In simple cases the matter can go before a registrar e.g. an order 14 for summary judgment with a right of appeal to judge. The trial with help of assessors is held when authorized by statutes e.g. In a land acquisition case or by the rules as in admiralty case (shipping). The mode of trial usually have been determined in the summons for direction.
Trials Before & Inquiries By Registrar - Ord 36 Ord 36 r.1 : A party may apply for trial of any cause or matter to be before the registrar on the grounds of expedition, economy or convenience and the court may in its discretion make such order having regard to the nature of the case. Ord 36 r.2 : Where the parties consent the court will more readily make the order.
Setting Down For Trial This is done in a summon for direction and is necessary for getting a date for the hearing of the action. Ord.34 r.2 On all matters raised at the summon for direction have been resolved, the court will order the P to set down the action for trial within specified period so that a date for trial may be obtained from the registry. Ord.34 r.2(3) An action set down for trial must contain an estimate of the trial and approximate number of witness. An action is set down for trial so that the date may be obtained from the registry. As to what date will be opened will depend on the state of court calendar and estimated length of trial.
Procedure Ord.34 r.3(1) To set down a matter for trial, the party must deliver to register in Form 63 a request that the action be set down for trial together with bundle of documents for the use of judge consisting of one copy of each following documents: (a) the writ (b) the pleading, any notice or order for particular or particulars given; and (c) all orders made on summons of direction
Ord.34 r.3(2) The bundle must be bound up in proper chronological order and be indorsed with names addresses telephone numbers of solicitors or if a party is not represented of that party. Ord.34 r.5 Once action is set down for trial the other parties to the action must notify in Form 64 of this within 24 hours in a(notification) of setting down action. Ord.34 r.7 Notice of trial may be given by P at any time after reply has been delivered or after the time of delivery of reply has expired. Ord.34 r.8 D may apply for notice of trial or apply for dismissal of the case. Ord.34 r.2(2) Default ± if the P does not set the action down for trial, the defendant may do so, or may apply to the court to dismiss the action for one of prosecution in which the court may make any order which it thinks fit.
Want Of Prosecution If the P failed to take required steps in the action such as filing and serving the statement of claims, exchanging his list of documents, issuing process for summons for direction or setting down the action for trial, the action may be dismissed. In practice the courts are reluctant to make such a drastic order unless it is just in all circumstances. Lim Heng Hoo v Tan Hock Hai 1 MLJ 101 P had failed to enter action within prescribed time, the prolonged and in excusable delay on the part of P which seems to be intentional had prejudiced the defendant.
Subpoena To Witness There are two types of subpoena i.e. (a) for oral evidence (b) for producing documents Please also refer to Order 38 r.14 to 23
Expert Witness EW is not a witness of fact but a witness of opinion (OW). So some of the rules applying to other witness will not apply to EW. The tips are: (a) We can shop around for an EW who gives evidence most favourable to our side. (b) We may pay him a fee on his expenses in preparing an EW. IT is our responsibility to ensure that he is an expert. This might depend on his experience or academic qualification, it is up the court at the end to accept him as an expert or not. But the court easily is not concern with this. If he is not an expert this will do more harm to our case. It is rare for the court to declare & witness not an expert and reject his evidence.
Difficulty is in determining an EW as an experience witness than academically qualified one . First takes time to satisfy whether he is an expert. Usually we could determine this by ensuring whether he had been called as an EW before in the previous trials. If he had been so than at least the court would have recognized him.
An academically qualified EW will help and easy our job more. The only thing is that we have to spend time with them to furnish the fact the case so that they can give their opinion on the facts Thus, an EW differs from a witness of fact as the former is not acquainted with facts of the case as compared to the latter. We must be careful as allegation for presumption of facts (given by the EW) differs from the real facts itself. So we better warn the expert on this as the conclusion made by the expert based on the tested facts may be different from the real fact. We must appraise or inform them on every point made on every fact alleged by our side and the other part. Then tell to the EW on what areas of advertise we requires his expertise. For e.g. for personal injury we can call the orthopedic surgeon and inform him the injuries as stated in the medical report, though we could see the physical injury but we still need his opinion on the patient's condition on how long it will last. Then the expert might be called by the other side.
Preparing For Civil Case In civil case there is an exchange of expert report before the trial. We can show the other side¶s expert report to out expert and get his respond to the other side¶s view. We even can get his assistance on how to exam the other side EW in order to develop question for the examine. An expert can also be called by the court. The CJA and rules of procedure are relevant here. The court may appoint EW from the suggestion of the parties of by court of its own motion. The experts duty is to assists the court of things the court not acquainted with.
His report produced after his investigation has to be shown to the parties. Sometimes we can cross-examine the expert. The court's EW is different from EE called by each respective party, as in the later the EW is loyal to each side. We must take care of selecting EW. Don't be impressed with academic qualification because he may not shine as a witness. Many EW are reluctant to be involved because it means finding fault with the words of other experts. Our task is to establish an alternative explanation. We can also get the sympathy of the court when we try so hard to show the EW is good.
Security Security For Cause ± S.23 Ord.23.r.1(1)&(3) The court may order that a person who institutes a claim such as a P or a D in respect of his counter claim give security for the other party costs of the action. The basis of this principle is that the person defending the claim may not otherwise recover his costs from the claimant, should the former succeed. Eg P brings a claim. D upon filing statement of defence apply for security of costs from P. if in case D bring a counter claim. Then P may make an application for security for costs.
In its determination of whether the order should be made, the court is directed first of all to consider whether the circumstances of the case, come within one of the four prescribed categories. They are as follows: 1)The P is ordinarily resident out of jurisdiction 2)The P is nominal P suing the benefit of some other person and there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so. 3)The entrance of the P¶s addresses is not stated in the writ or is incorrectly stated ± Ord.23.r.1(2) 4)The P has changed his address during the cause of the proceeding with a view to evading the consequences of the litigation.
Od.23.r.1(1) Secondly the court is required to have regard to all the circumstances of the case in deciding whether it is just to make an order that security be given. If it does so decide it must then determine what is the just amount. Ord.23.r.2 The security is to be given in such manner at such time and in such terms as the court may direct. Eg P to place title of land as security or court also may order P to prepare a guarantor in case of fails in his action the guarantor will pay the costs. Lee Swee Hua v American Express International Most application for security involves P who is ordinarily resident out of the jurisdiction. The risk here is that if he has no asserts, within the jurisdiction, he can easily avoid paying the D costs should the D succeed.
Kasturi Palm v Palmex Industries As both conditions laid down by the rules must operate the fact that he is ordinarily resident out of the jurisdiction is not alone sufficient basis for the order. For instance, it may not be just to order security if the D has an obviously weak case or if the order would have an oppressive effect. The remaining three categories also concern circumstances in which there is tangible risk that the D will not recover his costs should he succeed. In respect of the second category, not all nominal Plaintiffs will be subject to such an order. The rule itself excludes P s who sue in a representative capacity and it has been held that trusty in bankruptcy cases cannot be ordered to give security.
Ord.23.r.1(2) With regards to the third category, it is not sufficient that the P¶s address is not stated or incorrectly stated in the writ. If the P satisfies the court that the omission or error was made innocently or without intention to deceive, he will not be ordered to give security. Similarly, it is not enough for an order to be granted in the case of last category on the basis that the P has changed his address in the course of proceeding. The court must satisfied that, he did this with the intention of evading service. Ord.23.r.1(3) The rule do not allow an order for security for cause to be made in favour of D in respect his counter claim.
Evidence Procedure relating to evidence is in Ord.38.r.188.8.131.52.184.108.40.206.220.127.116.11.22.23 Adducing evidence by examination in Chief 1) Examination In Chief (EiC) EIC is the procedure by which a witness is questioned in court by the party who calls him (usually by solicitor) so that the witness's evidence, in the form of the oral answers he give in response to those question may be adduced before the court. The objective of EiC is to elicit favorable evidence to support the party's case to achieve the purposes of Etc it is necessary to observe a number basic principles and necessary approaches. The general practice is to examine the witness chronologies and approach which is advantages in several respect. This approach is suited to those cases which involve incidents such as torts, accident and crime. Where the witness will describe the incident one by one till end. Usually it start with witness introducing his personal identity, then stating the background facts and the facts which constitutes the series of incident leading up to the incident, the facts subsequent to the occurrence of the incidents.
Non chronological manner is for testimony with regards to character of a person etc. Questions must be prepared early. The Q & S should control the witness but he cannot use excessive control. Leading question (question suggesting answer) may not as a general rule be asked in EIC and in Re examination. In certain situation leading question is allowed with permission of court i.e. introduction, or matters not in dispute. A witness may forget certain details about the evidence he intended to give, in such case he may refresh his memory by referring to any written statement which he had made earlier but the other party may refer to what has been referred. Unfavorable or hostile witness- generally the person who calls his witness cannot cross examination him unless the court has discretion to allow it if the witness has contradicted what he has said previously with regard to the fact in issue. The procedure is to ask whether he had made previous statement, then he submit to court the statement and apply for leave to cross examine.
(2) Cross Examination (CE) The purpose of the cross examination is to test the reliability and accuracy of a witness so that a just decision can be made. Reliability can only be determined if the other party challenge each other's evidence so that weakness may be exposed. The essence of CE is to expose the EIC of a witness, to scrutiny with a view to weaking or netralising its effect. * CE generally takes the form of :(1) Eliciting facts which support the C/examiner's case or discrediting the witness EIC. (2) Raising facts not brought up in the EIC which are consistent with the cross examiner¶s theory of the case. (3) Developing certain aspects of the EIC with a view to supporting the cross examiner's case. (4) Asking questions for the purpose of setting a foundation.
(3) Re-examination (RE) After the CE, the witness will be re-examined by the party who calls him. The rule provides RE shall be directed to the explanation of matters referred to in CE. lt means that A & S cannot raised new evidence but the court may allow to do so if it is justified by circumstances .Here the other party is given chance to cross examine. Therefore there 2 requirements needed:(a) It must concern a matter raised in CE and (b) It must explain the matter. Agreed Bundle The parties will try to agree to a number of documents which are material to the case. The agreement usually extend to only authenticity of document but not as to the truth of the content, so that the parties still have to call the maker of the statement in this documents to prove their truth.
Appeal Introduction Appeal may be termed as application to appellate court by an aggrieved party to an action, seeking to set aside or reverse a decision of a court subordinate to the appellate court. O. 49 R.1 says a decision includes a judgment or order for decree. Generally there are two rights of appeal: 1. Subordinate court > HC > COA 2. HC > COA > FC.
Appeal from Subordinate Court to High Court S27CJA Hearing of appeals from Subordinate courts is within the appellate civil jurisdiction of HC. S28CJA 1. A party cannot appeal from subordinate court to HC 2.If the value of the matter is less than RM 10000 except on question on law 3. Or if a written law otherwise provide. 4. A party can appeal to High Court regardless of the value involved where the claim involves maintenance of wives and children. *The sum of RM 10 000 does not include costs and interest.
Nature of Appeal S29CJA The High Court conducts the appeal by way of re-hearing. It has all the powers and jurisdiction that are vested in the COA when it hears appeal from the HC. The procedure is set out in 049 of Subordinate Court Rules read together with 0 55 of RHC. In The Subordinate Court 1. Notice Of Appeal The Appellant will file a notice of appeal in form 140 in the Subordinate Court. This should be made within stated days from the date of decision. ( 0. 49 r 2 SCR ). The registrar of the Subordinate Court will send the notice of appeal to the Registrar of HC. O 49 r 2(1). The notice must be served on all parties directly affected by the appeal or their respective solicitors within that 14 days. Hoe Joo Sawmills v Sioma (AC) Sdn Bhd. (1979) 2 MLJ 236 Service of Notice is essential to initiate appeal. Filing of a notice is not sufficient. Unless the notice of appeal is served (and not merely filed) the court may refuse to make an order on an application, for eg to extend time. Court may refuse to make an order. The notice must state whether the appeal is in respect of the whole or part of the judgment or order, and if part of the order it must state which part.
2. Subordinate court will now prepare:a. notes of evidence b. certified copy of the judgment/grounds of judgment (judgment here it means grounds of decision in which the magistrate had written during the trial and has been read. Whereas the grounds of judgment is not written by him until a notice of appeal is made.)² 049 r2(2) 3. O 49 r 2(5) - The Appellant The Subordinate Court notifies the Appellant in form 141 that above documents are ready within 14 days of this notification. a) Deposit in the subordinate court a sum which will cover the cost of preparing a sufficient numbers of copies of the Record of Appeal ( if prepared by solicitor then no need to pay this amount ) When the record of appeal is ready the appellant must pay a fee for the appeal record with an amount fixed by the registrar AND b) Lodge in the same court RM 250 or ( a lesser sum if so ordered ) as security for the costs for appeal.
4. Once these requirements have been complied with the appeal record must be prepared Documents included in the Record Of Appeal: a. Pleadings b. Notes of Evidence c. Grounds of Judgment ( the absent of the ground of judgment does not prevent the appellant from proceeding hid appeal ) d. The decision e. Notice of appeal f. all such documentary exhibits and other documents the parties considered relevant for the purpose of appeal.
5. Record Of Appeal ± Preparation 1. In the case of unrepresented person or poor person it is the court (magistrate) will prepare the requisite number of copies of the Appeal Record -O49 r3(l) SCR The court will notify him as soon as the appeal record is ready in form 141 O49 r3(2) SCR. 2. If the appellant is represented by a solicitorThe solicitor will prepare the Appeal Record and no need to pay the fees In both cases a copy of Record Of Appeal to be served on the Respondents. In The High Court Once the Record Of Appeal is received by Registrar of High Court he will enter the appeal in the list of appeal from subordinate court which is known as Register Of Appeals- O55 r.1 RHC - This commences the HC process*
6. Memorandum Of Appeal It is a document that contains grounds of appeal filed In Form 113A. This is an important document because parties are only allowed to argue on grounds of appeal as appears in this document. a. The appellant If represented by a solicitor he must file in duplicate a memorandum of appeal in HC within 14 days from the date of service of the notice that the certified copies of the judgment / ground of judgment O55 r2(l) RHC & O49 r2(4) SCR b. If he is unrepresented or a poor person the memorandum must be filed within 14 days from the date that he is served with the notice that the appeal record is ready O5S r2(l) RHC & O49 r3(2) SCR
A copy of Memorandum and Appeal Record must also be served on each Respondent within this period O55r2(2) RHC The Memorandum of Appeal may be dismissed if :1. it is not drawn up correctly or 2. not filed or served within the prescribed period and 3. the delay is not explained to the satisfaction of court -O55 r4(2) RHC
7. Cross Appeal O 55 r 3 - The Respondents may file a cross appeal to contend on the hearing of the appeal that the decision of Subordinate Court should be varied. (Reply the original appeal or cross appeal) The respondent must file and serve on the appellant notice of cross appeal in Form 1138 within 7 days from the date of service on the Respondent of the memorandum of appeal. Note : O55 r4 (l) RHC - The memorandum of Appeal, Notice of Cross Appeal and Other part of the Record Of Appeal may be amended at any time as the court thinks fit.
8. Hearing Of appeal If The appellant does not appear in person or by his advocate on the day of the hearing the court will dismiss the hearing. However the court may proceed to hear the cross appeal. If It is the respondent who falls to appear either In person or by his advocate the court may proceed to hear the appeal unless it sees fit to adjourn the proceeding O55 r5(2)RHC ( The court may hear or postpone the case). If the appeal is dismissed or allowed in the absent of a party he may apply to HC for rehearing of appeal. The HC may restore the appeal if it is satisfied with the reason for absent given -O55 r5(3)RHC The provision applies mutatis mutandis to crossappeal -O55 r 5(4)RHC
The appellant may withdraw his appeal prior to the hearing by filing and serving a notice to the effect on the other parties ) that he does not wish to pursue the appeal further. O55 r 6(1) 81(2) RHC. The appeal will be deemed to be withdrawn and struck- out of the list of appeals if the parties signed the consent of the withdrawal. In this event the sum paid in court as security for costs is paid out to appellant O55 r 6 ( 3)RHC If the consent is not forthcoming the appeal remains. In the list and any outstanding issues between the parties including matters of costs will be heard. -O55 r 6(4)RHC. (If the appeal is withdrawn without consent of Respondent the court will assess the cost of the respondent)
The answer for Note 3 of 4 Notes «««.. how I passed the civil procedure examination is simple. First , the exams were somewhat easier in those days i.e 1982 then they are now in 2010. Secondly , I learned my notes more or less parrot fashion , and used the word ³contumacious´ liberally in my essays. The actual pleadings were cobbled up , and I hoped that the results would be sufficiently legally ³streetwise´ to get me through. They apparently were. But I knew as they say in Russia, from nothing. Thank You. Musbri Mohamed ; Aged 48 Years in 2010