Image generated by ChatGPT
When the Plaintiff has closed its case, a Defendant might be tempted to elect “no case to answer”. 60% of the time, it doesn’t work anytime.
To elect “no case to answer” is a dangerous course to chart. I would suggest that no matter how bad the Plaintiff’s case, a Defendant ought to always open its defence and adduce evidence. The recent CA decision of PINS v Haji Ahmad (discussed below) exemplifies this circumspection.
The law
In Yui Chin Song v Lee Ming Chai [2019] MLJU 591, the FC collated the law with regard to the election of no case to answer. As put by the FC:
[46] The basic principles on the issue as adopted in those authorities cited above may be summarised as follows-
(i)where the defence submits no case to answer, the trial judge must put to the defence the election available as to whether he wishes to call evidence for the defence or not; the judge should generally refuse to make such a ruling on such submission of no case to answer unless the defence makes it clear that he does not intend to call evidence;
(ii)if the judge does not put the defendant to election whether to call evidence or not, then in such a situation the defence retains his right to call evidence if his submission fails; and
(iii)if the defendant or his counsel has so elected, he is bound by it and loses his right to call evidence in the defence case and accordingly must stand or fall on their submission.
If one opts to elect no case to answer, the trial Judge will put an election to the defence. The Judge will then make a ruling following the submission made (as to no case to answer).
If the Judge fails to put the election, the defendant will retain its right to call evidence if his submission (of no case to answer) should fail.
Why is an election of no case to answer in civil proceedings so dangerous?
Electing no case to answer is incredibly dangerous for a defendant in a civil claim. A civil claim is determined on a balance of probabilities (Sinnaiyah & Sons v Damai Setia [2015] 5 MLJ 1). As such, the Plaintiff need only satisfy the Court (sometimes with the barest of evidence) to prove its claim.
In Solsis v Kenny Woo [2019] MLJU 1717, Darryl Goon J (retired JCA) stated:
[7] Therefore, as is almost invariably the rule, the Defendants were put to the election that should their submission of no case to answer fail, they would elect to call no evidence. Through learned counsel, the Defendants so elected.
[8] There are clearly significant risks involved in seeking to submit no case to answer and electing not to call any evidence. The Defendants, for reasons best known to them and their legal advisors, had nevertheless agreed to submit themselves to the risks involved.
When a Defendant elects no case to answer, all evidence led by the Plaintiff is assumed to be true (Yoong Sze Fatt v Pengkalen Securities [2010] 1 MLJ 85).
An adverse inference will probably be drawn against the Defendant for his failure to call evidence (Takako Sakao v Ng Pek Yuen [2009] 6 MLJ 751, FC; KSK Sawmill v FW Solutions [2020] 2 MLJ 423, CA).
Is an election of no case always fatal?
An election of no case to answer is not automatically fatal to a Defendant. The Plaintiff is still required to discharge the burden of proof. In Tech Food Ingredients v Blue Seal [2024] MLJU 243, Amin Yahya J refused part of a claim notwithstanding an election of no case.
This is the exception, not the norm.
Recently, in Perak Integrated Network Services v Haji Ahmad Kamal [2024] MLJU 2181, the CA affirmed a large part of the findings made by the HC with regard to the election of no case to answer.
As observed by the CA:
[69] Under the circumstances, we find that the submission of no case to answer cannot be accepted and the inelegant silence of PINS in This Suit, due to their “less than stellar evidence” in Suit 154, to be a matter of immense serious consequences that it has to live with, as per Takako Sakao. It lent further support to the Respondents’ case.
Criminal law
One may then ask whether this position holds true in criminal law: it does not.
Submissions of no case to answer for criminal law are governed by statute. Pursuant to ss. 180-182 of the Criminal Procedure Code, the presiding Judge is obligated to consider whether the Prosecution has made out a prima facie case.
If the Judge believes that they have, then the accused will be called to enter his defence [PP v Muh Pirman [2017] MLJU 845; PP v. Mohd Radzi b. Abu Bakar [2006] 1 CLJ 457 (FC)].
Conclusion
In concluding, no civil litigator should ever opt for no case to answer. It is a dangerous election that could pan out very poorly for one’s client.
It is highly probable that one will certainly fail at the appellate Courts, even if one might scrape-by at the trial Court.
In the event the client is terrified of taking the stand, a solicitor is duty-bound to explain the consequences to the client. If the client remains steadfast despite having been advised, then a solicitor cannot be faulted.
GAVIN JAYAPAL
_______________________________________________________________________________
The information contained herein is for general information purposes only. The writer does not endeavour to keep the information up to date and correct, makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the article or the information, products, services, law, cases or related graphics contained herein for any purpose.
Any reliance you place on such information is therefore strictly at your own risk.
Consult your solicitor before you undertake any legal action whatsoever. In no event will the writer be held liable for any loss or damage including without limitation, indirect or consequential loss or damage, or any loss or damage whatsoever arising from loss of data or profits arising out of, or in connection with, the use of this article.
Comments