{"id":8015,"date":"2020-11-23T17:20:07","date_gmt":"2020-11-23T09:20:07","guid":{"rendered":"http:\/\/alexchanglaw.com\/?p=8015"},"modified":"2025-09-10T17:11:57","modified_gmt":"2025-09-10T09:11:57","slug":"submission-of-no-case-to-answer-jaryn-lam-hui-jun","status":"publish","type":"post","link":"https:\/\/alexchanglaw.com\/index.php\/submission-of-no-case-to-answer-jaryn-lam-hui-jun\/","title":{"rendered":"Submission of No Case to Answer"},"content":{"rendered":"\n

Versi Bahasa<\/a><\/p>\n\n\n\n

\u4e2d\u6587\u7248<\/p>\n\n\n\n

1. Submission of No Case to Answer<\/p>\n\n\n\n

It is a principle of law that the Defendant may\nsubmit a no case to answer at the end of the Plaintiff\u2019s case if the Defendant\nis of the view that: 1) The Plaintiff had failed to establish a case in law; or\n2) The evidence that was led by the Plaintiff is so unsatisfactory or\nunreliable.<\/p>\n\n\n\n

In the case of Tan Kim Khuan v Tan Kee Kiat (M) Sdn Bhd [1998] 1 CLJ SUPP 147, p706<\/em><\/strong>, it was held that: \u201cIf the party on whom the burden lies fails to discharge it, the other party need not call any evidence. In that event, it will not avail him to turn round and say that the respondent has not established his.\u201d<\/p>\n\n\n\n

Besides, it is observed in the case of Raja Chandranath Roy v Ramjai Mazumdar 6 BLR 303<\/em><\/strong> as which the respondent can say: \u201cIt is wholly immaterial whether I prove my case or no. You have not proved yours\u201d.<\/p>\n\n\n\n

2. Brief Facts<\/p>\n\n\n\n

I was given the opportunity to write a short note on a matter which I have read in Alex Chang & Co. The Plaintiff (P) in this matter is claiming against the and Third Defendant (3rd<\/sup> D) as guarantors under the letter of guarantee for the outstanding sum of RM156,900.31 being the balance price for goods sold and delivered to the First Defendant (1st<\/sup> D).<\/p>\n\n\n\n

The first defendant who is the principal debtor was wound up and the Plaintiff continued its action against the second and third defendant as guarantors and principal debtors.<\/p>\n\n\n\n

3. My observation<\/p>\n\n\n\n

In this matter, I would like to briefly talk\nabout the brave decision that was being made by the second Defendant\u2019s counsel\non the submission of no case to answer at the end of the Plaintiff\u2019s matter,\nafter the examination-in-chief, cross-examination and re-examination of the\nonly witness that was being called by the Plaintiff, here we refer to as PW1.<\/p>\n\n\n\n

There are several powerful grounds that were being\nraised by the second defendant\u2019s counsel. However, the strongest argument so as\nto render the entire arguments of the Plaintiff\u2019s to collapse was, the issue on\nthe cause of action.<\/p>\n\n\n\n

3.1          Cause of\nAction<\/strong><\/p>\n\n\n\n

The cause of action is the preliminary matter\nthat should be considered before initiating a claim. Here, the 2nd<\/sup>\nD\u2019s counsel argue that P has no cause of action against the second defendant as\nno demand was made in the bundle of document, particularly B and C, when it was\nan on-demand guarantee. No letter of demand was found.<\/p>\n\n\n\n

The salient point in this instant matter is very\nstraightforward. The Plaintiff did not obtain a judgment against the first defendant\nin the first place and therefore the only nexus between the Plaintiff and the second\ndefendant is the guarantee. (on-demand guarantee). This simply means that even\nif the guarantee can be admitted as evidence, there was no demand tendered to\nstart the cause of action and therefore the P\u2019s claim shall fail. <\/p>\n\n\n\n

The authority on point that support this ground\nis the case of Malayan Banking Bhd v Saujana Pesona Sdn Bhd [2016] 10 CLJ 92 (COA),<\/em><\/strong>\nwhich it held that, \u201cin the case of demand guarantee, a cause of action against\na guarantor would only accrue after the demand was made against a guarantor\u201d.<\/p>\n\n\n\n

My thoughts

It is important to refer to the principle of \u2018no case to answer\u2019 as once the election of not adducing evidence is made by the Defendant\u2019s counsel, is then irrevocable.  This is simply because the defendant will end the proceedings without being able to further adduce evidence to defend his matter. Hence, the defendant\u2019s counsel would have to be confident as to whether the Plaintiff had not established a prima facie case. This is a very serious decision and is to to be made with caution.<\/p>\n\n\n\n

Before I laid eyes on the submission prepared by\nthe second defendant\u2019s counsel, I was constantly searching for the reason as to\nwhy the \u201csubmission of no case to answer\u201d decision had to be made. I had\nalready finished reading the examination of witness in the notes of proceeding\nbut all I could find from the said document is just the minor argument that is\nnot as important as the \u201ccause of action\u201d. <\/p>\n\n\n\n

For example, in my contention, I thought that\nthe main reason of the \u201csubmission of no case to answer\u201d is due to the fact\nthat during the cross-examination, the PW1 said he could not identify whether\nthe signature belongs to the 1st<\/sup> D\u2019s representative and he was\nunable to recognize all the persons who signed the delivery order. Therefore,\nPW1 has no personal knowledge as he was not at the site, monitoring the staff\ntaking the signature and chop while delivering process at site. <\/p>\n\n\n\n

Conclusion

In my humble opinion, I think this is a very interesting matter and I am glad that I was taught on how correctly apply the \u2018submission of no case to answer\u2019 instead of just learning about it theoretically. It is worth mentioning that this brave decision should be made, if and only if, the counsel is confident enough to strike out the Plaintiff\u2019s matter, otherwise, no defence can be made further to \u201crescue\u201d your matter after the end of the Plaintiff\u2019s matter. <\/p>\n\n\n\n

Expert Witness- O40A<\/p>\n\n\n\n

On a side note, I observed that the Plaintiff\u2019s witness PW1 had expressed\nhis own opinion on the delivery and received manner of which has been carried\nout at the site and why some of the delivery orders were not signed or stamped.<\/p>\n\n\n\n

However, the evidence was struck out for the reason being that, according\nto O40A ROC, the PW1 is not an expert and his opinion is therefore not\nsustainable. He is the national credit manager, not a project manager, nor a\nlorry driver.<\/p>\n\n\n\n

The evidence was inadmissible and the judgment was granted in favor of the Defendant. The Plaintiff\u2019s matter was then dismissed with cost.  <\/p>\n\n\n\n

Jaryn Lam Hui Jun<\/p>\n\n\n\n

Read also: 6 Tips To Trial Procedures In Malaysian Courts<\/a><\/p>\n\n\n\n

\"\"<\/a>
Jaryne Lam Hui Jun<\/figcaption><\/figure>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

Versi Bahasa \u4e2d\u6587\u7248 1. Submission of No Case to Answer It is a principle of law that the Defendant may submit a no case to answer at the end of the Plaintiff\u2019s case if the Defendant is of the view that: 1) The Plaintiff had failed to establish a case in law; or 2) The […]<\/p>\n","protected":false},"author":1805,"featured_media":8273,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[69],"tags":[106],"_links":{"self":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts\/8015"}],"collection":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/users\/1805"}],"replies":[{"embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/comments?post=8015"}],"version-history":[{"count":7,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts\/8015\/revisions"}],"predecessor-version":[{"id":12260,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts\/8015\/revisions\/12260"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/media\/8273"}],"wp:attachment":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/media?parent=8015"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/categories?post=8015"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/tags?post=8015"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}