1. ) BUNEER PAK ENTERPRISE 2. ) ASMAH BINTI MOIDEEN 3. ) MOHAMAD ASWAD BIN SULIEMAN v PANORAMIC EXCELLENCE SDN BHD

Case Significance

Applies the Ladd v Marshall test to refuse fresh evidence on appeal, confirming that the appellate power to receive additional evidence is exceptional and restrictive, that failure on any one of the three conditions is fatal, and that an appeal cannot be used as a rehearing by instalment to repair a case that failed at trial.

This High Court decision at Johor Bahru concerns an application, in a civil appeal from the Sessions Court, for leave to adduce fresh evidence, brought under Order 55 rule 7 and Order 38 rule 12 of the Rules of Court 2012. The appellants, who had been the defendants below in a claim by the respondent, Panoramic Excellence Sdn Bhd, sought to introduce on appeal the pleadings, notes of evidence and judgment orders from three earlier and allegedly similar cases in which the respondent had sued different defendants, and to call a proposed new witness said to be able to testify that an individual alleged to be the respondent's agent had misappropriated customers' payments. The Court examined the scope and limits of an appellate court's power to receive additional evidence, describing it as an exceptional and restrictive jurisdiction governed by the principle of finality in litigation. It applied the three cumulative conditions in Ladd v Marshall — reasonable diligence, that the evidence could not have been obtained for use at trial with reasonable diligence; materiality, that it would probably have an important influence on the result; and credibility, that it is apparently reliable — noting that failure to satisfy any one condition is fatal and that the burden lies on the applicant. The Court found that the material sought to be introduced was known or obtainable during the original trial and that permitting it would turn the appeal into a prohibited rehearing by instalment, a second attempt to rebuild a case that had failed rather than a genuine appeal. Finding no procedural unfairness, no denial of the appellants' right to present their defence below, and no exceptional circumstances, the Court held that its refusal was a principled exercise of discretion, not an arbitrary or misdirected one, and dismissed the application, leaving the substantive appeal to be determined on the record already made in the Sessions Court.