The legal fraternity awaits eagerly the written judgment of the Court of Appeal which overturned the High Court ruling that the National Land Finance Cooperative Society was liable in a land development project.
Eagerly, simply because from the outset it looked very much an open and shut case wherein the key defence witnesses listed in the witness list failed to testify or rebut corroborated evidence given by the claimant.
Surprisingly the Appeal Court dismissed the evidence given in court by the prime witness for the claimant, Westingmont Sdn Bhd saying the evidence was simply hearsay.
Legal experts think that the appeal court was wrong not only in dismissing the evidence as hearsay but also in interfering with the findings of the trial judge.
The appeal court is not a forum to settle dispute. That was already done by the lower court. Its prime function is to determine if the trial judge exercised his powers with his jurisdiction, and or to deliberate points of law.
By dismissing a key witness’ evidence the appeal court has not only usurped the powers of the trial judge who was a better person to decide after spending considerable time weighing both sides of the argument.
In dismissing a piece of unchallenged evidence the appeal court has opened the floodgates.
This may give aggrieved parties consideration for further appeal to challenge this unprecedented ruling.
Had the appeal court judges probed further they could have understood why the trial judge admitted the claimant’s statement as evidence.
The trial judge Datuk Abdul Aziz went on to invoke Sec 114G of the Evidence Act to admit a crucial piece of evidence against the defendant, given by the claimant’s witness, which was not disputed at all
In short all the statements of Gopala Krishnan, the key witness for Westingmont against the key witness for NLFCS Tan Sri Somasudran, the executive chairman of NLFCS went unchallenged simply because the latter did not come to court to defence himself.
Though there were other witnesses not listed in the defence witness list came to the rescue of Somasundram but these witnesses’ evidence were not corroborated.
If the defence had a solid case they would have not hesitated to produce Somasundram. Not that he was away fighting a war or cannot be contacted. He was there at anyone’s disposal, in his cozy office in Tun Sambantan Building
Facing a daunting task the defence threw a red herring when they listed Somasundran as a witness in the witness list and deliberately or otherwise failed to produce him, thus denying the claimant a chance at putting him on the stand.
Some say the claimant could have tried a different approach by hauling Somasundran to court by way of subpoena.
But inorder to do this the defence counsel must notify the court and the plaintiff’s counsel that they would not be calling Somasundran who was listed in their witness list.
It is learnt from the plaintiff’s lawyers that the defence neither notified the court or the plaintiff’s counsel.
Now it should be asked if it was utterly necessary for the plaintiff to subpeona a defence key witness when the latter could turn hostile?
Thus it is common sense that an evidence under oath be accepted and its authenticity remains until proven otherwise, shifting the evidential burden from the plaintiff to the defendant.
It is surprising that during the submission the appeal court asked the respondent’s counsel why they did not call Somasundran. The court should have known better that the burden is on the appellant to call their witnesses who were listed in the witness list at the start the trial in the high court.
Besides, any evidence made in court must be taken seriously by the judges as the person giving the evidence is under oath and dismissing evidence without solid reasons can be taken as not honouring court proceeding.
The appeal court also contended that the respondent had not requested “enough” for a piece of document which was supposedly in the possession of the appellant.
There are two points to consider here. One is the word “enough” which is very subjective. So to tell one that he or she has not done enough one ought to define what “enough” in that context is.
The other is the appellant’s claim that the respondent did not request for the title to a piece of land which the respondent was supposed to develop.
That claim is ambiguous and steeped in half truth as the one making the claim must first have that piece of document in their possession.
By making such a claim they imply that the title was in their possession and that the respondent had not asked for it.
Now for argument sake say the respondent had asked for it. Were the appellant in a position to handover the document? This was a clever way of misleading the appeal court which probably did not go through thoroughly the notes of evidence.