A. Introduction
The Court of Appeal in Alliance Connext Sdn Bhd v Wangsa Budimas Sdn Bhd [2022] 1 CLJ 173 held that it is not mandatory for a person appearing for and on behalf of a company as its witness to be its current officers or expressly authorised by an officer of the company. It is also not a requirement under the law for an authorisation letter or a resolution from the company to be produced for such witness to testify on behalf of the company.
B. Background Facts
The plaintiff claimed for damages for breach of contract arising from a lease agreement. The defendants counterclaimed for overpayment of rental. The High Court allowed part of the plaintiff’s claim and dismissed the defendants’ counterclaim.
The defendants appealed against the whole of the judgment and the plaintiff filed a cross-appeal in respect of the portions of the claim that were dismissed by the High Court.
C. High Court
One of the issues raised by the defendants on appeal was the High Court’s rejection of the defence witnesses’ testimonies. The High Court rejected the testimonies of the defendants’ witnessses on the grounds that when they testified, they were neither shareholders or directors of the first defendant company nor were they authorised by the company to testify on its behalf.
Applying the dicta in Sarawak Building Supplies Sdn Bhd v The Director Of Forests & Ors [1991] 1 CLJ 373 (“Sarawak Building“), the High Court held that:
"It is to be noted at the time of this hearing, DW1 and DW3 were no longer the Directors of the 1st Defendant. When the Plaintiff raised the challenge that they have no authority to act and offer evidence on behalf of the 1st Defendant, the onus lies on the 1st Defendant to show otherwise and a witness who is authorised by the 1st Defendant should come forward to state its position and rebut the Plaintiff's claim. The evidence of DW1 and DW3 in my view are just supportive evidence to support the 1st Defendant's case but the principal or main witness to defend the claim must be somebody that is authorised by the 1st Defendant's company. In this case despite the challenge, the 1st Defendant did not offer any reasons to show why it could not call somebody from the 1st Defendant to take the witness stand".
D. Court of Appeal
The Court of Appeal overturned the High Court’s ruling on this point for the following reasons.
First, the Court of Appeal held that the case of Sarawak Building is inapplicable as it concerns a challenge to the authority of a solicitor or counsel acting for a company and had nothing to do with the competency of a witness to testify on a company’s behalf.
Second, a party to an action is entitled to call witnesses to establish its defence either by procuring their voluntary attendance in court or by issuing a subpoena to compel attendance. There is no requirement in law, nor does it serve any useful or practical purpose for a person testifying on a company’s behalf to be expressly authorised to do so by the company. When a witness is testifying on a company’s behalf, that person is in court because the company had asked him to appear as its witness. It would be superfluous to require a letter of authorisation or a resolution from the company.
Third, when DW1 was challenged on his authority to appear as a witness for the first defendant, he had expressly stated that he was authorised by the general manager of the first defendant to testify. He was also giving evidence as the second defendant himself.
Fourth, all the defendant’s witnesses had direct and personal knowledge on the matters in dispute and were relevant and competent witnesses.
The Court of Appeal held that the High Court’s rejection of the defence witnesses is a grave error that warrants appellate intervention.
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