METRO ESQUIRE (M) SDB BHD v KOPERASI PEKERJA JAYA BERHAD

Case Significance

Illustrates the narrow scope of the discretion under section 138(4) of the Evidence Act 1950 to reopen a case and recall a witness after trial, and the weight given to the principle of finality in litigation, which is not displaced by a party's later dissatisfaction with how its case was conducted.

This High Court decision in Kuala Lumpur concerns a post-trial application to reopen a party's case and recall a witness under section 138(4) of the Evidence Act 1950. In a suit arising from a joint venture agreement, the plaintiff — having by then changed solicitors — applied for leave to reopen its case so that its witness could testify about a set of documents, to produce those documents and the proof relating to them, to file a fresh common bundle of documents arranged chronologically, and for a stay of the further proceedings pending the disposal of that application. Section 138(4) preserves a discretion to allow a witness to be recalled, and the court also had before it the invocation of its inherent jurisdiction. The court approached the application against the principle of finality in litigation, under which a party is expected to present its whole case at trial and will not readily be permitted to reopen it afterwards to fill gaps that could have been addressed earlier. It examined the reasons advanced — including matters going to the conduct of the earlier stages of the case — and found no proper basis for reopening the plaintiff's case or recalling the witness. In particular, dissatisfaction with the way the case had previously been conducted did not justify displacing the finality of the trial process, and the request to file a new common bundle was likewise without foundation. The court observed that to permit the reopening in these circumstances would risk turning the conclusion of a trial into a fresh starting point whenever a party, with hindsight or new advisers, wished it had run its case differently. The court accordingly dismissed the application with costs of RM5,000 and directed that the filing of submissions proceed so that the action could be brought to a conclusion. The judgment illustrates the narrow scope of the discretion to reopen a case and recall a witness after trial, and the weight the courts give to finality in litigation.