/akn/my/judgment/court-of-appeal/2018/7e1bf3d6-a065-4e6d-809e-d1ba332bd249
Court of Appeal of Malaysia28 Aug 2018B-02(IM)(NCVC)-143-01/2018; B-02(IM)(NCVC)-396-02/2018
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“on or about March 2015, the 1st, 2nd, 3rd and 4th defendants were charged jointly on 23.3.2015 at the Sepang Sessions Court on 2 charges, namely under: i) section 379 read together with section 34 Penal Code for the offence of theft of sand belonging to the plaintiff; ii) section 477 read together with section 34 of th”
“to the attention of counsel during argument and in which there appears the following passage in the judgment of Sharma J (at p.76): In Satyadhyan Ghosel and orthers v Sint Deorajin Dobi & Another AIR [1960] SC 941, the statement of the law on the subject is given thus: “The principle of res judicata is based on the nee”
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1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: B-02(IM)(NCVC)-143-01/2018 (NO SYARIKAT: 147392-V) …PERAYU MUHAMMAD FADHIL BIN AB WAHID (NO K/P: 830106-01-5941) ...RESPONDEN (Di Dengar Bersama) DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: B-02(IM) (NCVC)-396-02/2018 (NO SYARIKAT 147392-V) …PERAYU LEE WAI SOON (NO K/P: 701203-10-5649) …RESPONDEN 2 [DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA (GUAMAN NO: BA-22NCVC-454-07/2017) (NO SYARIKAT 147392-V) …PLAINTIF (NO K/P: 560726-08-5011) (NO K/P: 701203-10-5649) (NO K/P: 830106-01-5941) (NO K/P: 810615-07-5741) …DEFENDAN-DEFENDAN] _________________________________________________________ CORAM: NALLINI PATHMANATHAN, JCA BADARIAH SAHAMID, JCA ZABARIAH MOHD YUSOF, JCA 3 JUDGMENT [1] There are two related appeals by the appellant (the plaintiff in the court below) against the decision of the learned High Court Judge which allowed striking out applications by the respondents (the 2nd and 3rd defendants in the court below), namely: i) Appeal B-02(IM) (NCVC)-143-01/2018 (Appeal 143); and ii) Appeal B-02(IM) (NCVC)-396-02/2018 (Appeal 396). [2] Appeal 143 is in respect of the decision of the learned High Court Judge on the 3rd defendant’s striking out application, whilst Appeal 396 is in respect of the decision of the learned High Court Judge on the 2nd defendant’s striking out application. Both appeals originated from a single suit in the High Court, namely BA-22NCVC-454-2017, wherein the 2nd and the 3rd defendants filed separate applications to strike out the plaintiff’s Writ and Statement of Claim. [3] Having perused the Appeal Records and having considered the submissions of both parties, unanimously, we allowed Appeal 396 with costs of RM10,000.00 here and below to be paid to the appellant subject to allocator and dismissed Appeal 143 with costs of RM10,000.00 to be paid to the respondent here and below subject to allocator. We ordered the matter in Appeal 396 to proceed with full trial in the High Court. Herein below are our reasons for deciding so. [4] Parties will be referred to as they were in the High Court. 4 A. BACKGROUND: [5] The plaintiff, Metreco Industries Sdn Bhd, owns a property known as Lot PT 36842, HSD 20256, at Mukim Dengkil, Daerah Sepang, Selangor (the land). [6] The 3rd defendant is the sole proprietor of Sri Gumut Enterprise. [7] It is the plaintiff’s case that it discovered some excavation works being carried out on the land and there were lorries and machineries on the land. There was a signboard erected on the adjacent plot of land beside the land of the plaintiff which named the 3rd defendant as the contractor responsible for the clearing of the land. The 1st Suit: [8] As a result, on 12.2.2015, the plaintiff instituted a suit against the 3rd defendant, namely Shah Alam High Court Suit 22NCVC-80-02/2015 (the 1st suit) for trespass on the land. [9] In this 1st suit, the 3rd defendant was the sole defendant. And it was pleaded by the plaintiff in its statement of claim that: i) On or about January 2015, the plaintiff discovered that the 3rd defendant, either by himself or through his workers, servants or agents and without the plaintiff’s knowledge/consent, had trespassed into the land. It was also alleged that the 3rd defendant, without the plaintiff’s consent/knowledge had 5 carried out digging work and removed sand out from the said land (paragraphs 4 and 5 of the Statement of Claim); ii) As a result, the plaintiff suffered losses arising from the removal/extraction of sand and alleged that the 3rd defendant’s conduct has caused depreciation in the market value of the land. The plaintiff sought to be compensated for the losses suffered (paragraph 7 of the Statement of Claim); iii) There was at the material time a notice board and fence made of zinc plates erected on the land, however the notice board was erected on the land beside the plaintiff’s land. The notice board contains the Selangor state emblem with the following words: “Kerja-Kerja Mencuci Tanah Dan Tapak Semaian Bagi Tujuan Perladangan Dengan Kerjasama Kerajaan Negeri Selangor di kawasan Puchong, Daerah Dengkil, Selangor; Kontraktor: Sri Gumut Enterprise (00993472-X) No 15B, Jalan Pelabur B 23B, Seksyen 23, 40300 Shah Alam Selangor” (paragraph 10 of the Statement of Claim) [10] Paragraph 11 of the Statement of Claim further states: “Defendan iaitu kontraktor yang dinamakan di dalam papan tanda tersebut secara sendiri atau melalui pekerja, pengkhidmat, ejennya 6 atau sebaliknya telah menceroboh, menyalahi undang-undang tanah, tidak berkuasa atau tidak berhak untuk membuat kerja-kerja cadangan sedemikian di atas Tanah lot milik Plaintif.” [11] The 3rd defendant filed a striking out application in the 1st suit premised on the following grounds:
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(i) The plaintiff lodged a police report on 28.1.2015, naming other individuals, namely Kenneth and Fairus, as the persons who committed trespass on the land. The 3rd defendant was never mentioned in the police report as a person who was involved in the trespass;
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(ii) 4 persons were charged for trespass and theft of sand in the Sepang Sessions Court where 2 of them pleaded guilty to trespass whilst 2 other persons (of which the 3rd defendant was one of them) claimed trial;
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(iii) The signboard which named the 3rd defendant as contractor was erected on the adjacent plot of land (Lot PT 036841) which belongs to Plenitude Permai Sdn Bhd;
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(iv) The lorries and machineries on the plaintiff’s land did not belong to the 3rd defendant; Statement of Claim to show that the plaintiff has a cause of action in trespass against the 3rd defendant or that it was the 7 3rd defendant who committed the offence of theft of sand from the plaintiff’s land. [12] It was averred by the 3rd defendant in the striking out application in the 1st suit, that the suit by the plaintiff against the 3rd defendant was premised on the notice board which was erected on the land beside the plaintiff’s land, which named the 3rd defendant as the contractor responsible for clearing works on the land. [13] The striking out application by the 3rd defendant was allowed by the learned High Court Judge and the plaintiff’s Statement of Claim was effectively struck out on 5.8.2015. The plaintiff did not file any appeal against the 5.8.2015 decision. The 2nd defendant had no knowledge of the 1st suit. The 2nd Suit: [14] On 28.7.2017, the plaintiff filed another suit, BA-22NCVC-454- 2017 (the 2nd suit) against several defendants, including the 2nd and 3rd defendants, premised on the same cause of action. This is the suit which the present 2 appeals originated from. In this 2nd suit, the plaintiff pleaded in its statement of claim as follows: i) On 19.1.2015 the plaintiff found out that unidentified personnel, which was later identified as the 4th defendant, has without the plaintiff’s consent and/or permission, trespassed into the land. (paragraphs 7 and 8 of the Statement Of Claim); 8 ii) The plaintiff found out that there were machineries used for land digging and sand extraction activities on the said land (paragraph 10 of the Statement Of Claim); iii) On 4.2.2015, the plaintiff found out that: a) the land was fenced up by zinc plates and was placed between the border of the land and Lot PT 036841 owned by Plenitude Permai Sdn Bhd; the entrance gate to the land has been locked; a notice board was erected at the entrance of the land which has the Selangor state emblem with the following words: “Kerja-Kerja Mencuci Tanah Dan Tapak Semaian Bagi Tujuan Perladangan Dengan Kerjasama Kerajaan Negeri Selangor di kawasan Puchong Daerah Dengkil, Selangor; Kontraktor: Sri Gumut Enterprise (00993472-X) No 15B, Jalan Pelabur B 23B, Seksyen 23, 40300 Shah Alam Selangor” a police report was lodged by the plaintiff and a representative of the owner of Lot PT 036841; Sri Gumut Enterprise is the contractor named on the said Notice Board and the 3rd defendant is the sole 9 proprietor stated therein (paragraph 15 of the Statement Of Claim); the alleged trespass and the alleged extraction of sand caused the plaintiff to suffer losses due to depreciation in value of the land and costs incurred to repair and restore the condition of the said land; the plaintiff sought, as its relief, a declaration that the defendants, jointly and severally, whether by themselves or through employees and agents, had committed trespass on the plaintiff’s land and orders for general damages, compensatory damages, aggravated and exemplary damages, interest and costs; on or about March 2015, the 1st, 2nd, 3rd and 4th defendants were charged jointly on 23.3.2015 at the Sepang Sessions Court on 2 charges, namely under: i) section 379 read together with section 34 Penal Code for the offence of theft of sand belonging to the plaintiff; ii) section 477 read together with section 34 of the Penal Code for the offence of trespass committed between 19.1.2015 until 18.3.2015 on the land. 10 The 1st and the 2nd defendants pleaded guilty and were sentenced.
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Whereas the 3rd and the 4th defendants claimed trial and the trial proceeded on 27.6.2016 until 17.8.2016. However on 30.7.2016, the 3rd and the 4th defendants pleaded guilty and were sentenced accordingly. [15] In the 2nd suit, the 2nd and 3rd defendants filed separate striking out applications which were heard by different High Court Judges on different dates. [16] The 3rd defendant premised his striking out application on the basis that the 2nd suit arose from the same cause of action as per the 1st suit. The 3rd defendant’s main contention is that since the 1st suit was struck out and there has been no appeal against that decision, the plaintiff is barred by res judicata from filing the 2nd suit. On 18.12.2017, the High Court allowed the striking out application by the 3rd defendant and held that the 2nd suit is caught by the principle of res judicata. [17] The 2nd defendant premised his striking out application on grounds of no reasonable cause of action, res judicata and that the plaintiff’s claim was scandalous, frivolous, vexatious and abuse of court process. The 2nd defendant’s striking out application was allowed on 7.2.2018. [18] The plaintiff appealed against both decisions of the High Court, which are the appeals before us. 11 B. FINDINGS OF THE HIGH COURT Against the 2nd defendant: [19] The learned High Court Judge found that the plaintiff had admitted that the 2nd suit against the 2nd defendant is premised on the same factual matrix and the same cause of action as the 1st suit. Vide the affidavit filed by Lim Chin Tong, director of the plaintiff dated 15.1.2018, at paragraph 5, the plaintiff admitted that when he filed the 1st action, the plaintiff did not have any evidence nor proof of the 2nd defendant’s involvement in the trespass. The only evidence the plaintiff had, was based on the information derived from the notice board erected on the land beside the plaintiff’s land. The relevant paragraph of the affidavit reads: “5. Oleh yang demikian, saya mengatakan bahawa pada waktu yang material, kecuali melalui keterangan papan cadangan tersebut, Plaintiff memang tidak mempunyai sebarang keterangan atau bukti mengenai penglibatan Defendan Kedua (Lee Wai Soon) atau sesiapa lain, sebagai pekerja, pengkhidmat atau ejen Defendan Ketiga. Lagipun, Defendan Ketiga didalam guaman Tuntutan Pertama menafikan langsung penglibatan dirinya samada secara sendiri atau melalui pekerja, pengkhidmat atau agennya dan telah memplid satu bentuk pembelaan sahaja terhadap tuntutan Plaintiff iaitu pada dasarnya “Defendan sama sekali tidak pernah, samada atau sebaliknya menceroboh mana-mana tanah milik Plaintiff dan melakukan kerja-kerja seperti mana yang didakwa Plaintiff….”” [20] The plaintiff had also admitted that at the time of filing the 1st suit, he had no claim against the 2nd defendant (paragraph 11 of the grounds of judgment). 12 [21] It is the finding of the learned High Court Judge that the plaintiff should have filed the claim against the 2nd defendant earlier in the 1st suit. The learned High Court Judge was of the view that the plaintiff knew of the 2nd defendant’s involvement at least by the time the 2nd defendant was brought to the Sepang Criminal Sessions Court on 23.3.2015. Given that the 1st suit was struck out on 5.8.2015, the plaintiff had at least 5 months to include the 2nd defendant as a party to the 1st action but he failed to do so. [22] The learned High Court Judge viewed the reason as to why the plaintiff did not include the 2nd defendant nor claimed for any compensation against the 2nd defendant in the 1st suit was because his losses were caused by the 3rd defendant and not by the 2nd defendant. His Lordship arrived at these findings premised on the evidence given by the plaintiff at the Sepang Criminal Sessions Court where the plaintiff admitted that his loss was caused by the 3rd defendant and/or Sri Gumut only. The relevant paragraph 12 of the grounds reads: “12…….Melalui Afidavit Sokongan Defendan Kedua yang diikrarkan pada 3 Januari 2018 dan merujuk kepada Eksibit “D6”, adalah didapati bahawa Plaintif hanya membawa tuntutan kerugian terhadap Defendan Ketiga sahaja melalui Guaman Pertama tersebut dan tiada tuntutan pampasan lanjutan terhadap Defendan kedua, memandangkan kerugian yang dialami oleh Plaintif hanya disebabkan oleh Defendan Ketiga sahaja. Dalam keadaan yang sedemikian, adakah tindakan Plaintif ini merupakan suatu tindakan berdasarkan kepada princip Res Judicata?.....” D6 is the notes of proceedings of the Criminal Sessions Court. 13 [23] After referring to the Federal Court case of Manoharan a/l Malayalam v Menteri Dalam Negeri Malaysia & Another [2009] 2 MLJ 660, the learned High Court Judge found that based on the principle of res judicata, since the court in the 1st suit had dismissed the claim premised on the same issues and claim, the 2nd defendant’s application to strike out the 2nd action should be allowed. [24] The plaintiff submitted that the 1st suit involved different parties from the 2nd suit and that the decision in the 1st suit was not a final decision but a decision on an interlocutory application. The learned High Court Judge found no merits in such arguments. As a result the application by the 2nd defendant to strike out the plaintiff’s claim was allowed by the High Court. Against the 3rd defendant: [25] The learned High Court Judge found that the cause of action in the 1st and the 2nd suits are the same. The plaintiff did not appeal against the decision in the 1st suit. Therefore the 2nd suit is caught by res judicata. [26] Similarly, as in the striking out application by the 2nd defendant, the plaintiff raised the issue that the 1st suit involved different parties as opposed to the 2nd suit and that the decision in the 1st suit was not a final decision but a decision on an interlocutory application. The reasons given by the 3rd defendant to strike out the claim against him are not procedural in nature. [27] The learned High Court Judge found that the order which struck out the plaintiff’s 1st suit against the 3rd defendant is a final order. By 14 naming the other defendants in the 2nd suit, the plaintiff cannot avoid the applicability of the doctrine of res judicata. Therefore the High Court allowed the 3rd defendant’s application to strike out the Writ and the Statement of Claim. C. GROUNDS OF APPEAL BY THE PLAINTIFF: [28] The plaintiff’s memorandum of appeal raised the following as grounds of appeal: i) The 2nd suit is not a plain and obvious case to be struck out; ii) The principle of res judicata is not applicable; iii) The learned High Court Judge had taken irrelevant considerations when deciding on the application to strike out the Writ and Statement of Claim under O 18 r 19 (1) (a) of the ROC 2012; iv) The plaintiff has a right to have the matter adjudicated at full trial to explain the factual matrix of their claim, inter alia: a) What the plaintiff meant by its admission that it has no evidence against the 2nd defendant; b) Why was the 2nd defendant not named as a defendant in the 1st action; c) What the plaintiff’s witness meant in his evidence in the Sepang Sessions Criminal Court; and 15 d) Why did the plaintiff not appeal against the 1st action’s decision. D. OUR DECISION: [29] It is trite law that a Court in exercising its power of striking out suits under any of the limbs under O 18 r 19 (1) ROC 2012 will only invoke the summary process in plain and obvious cases, where the claim is obviously unsustainable on the face of it. The burden to prove that it is plain and obviously unsustainable on the face of it, rests with the defendants. The Court will not conduct a minute examination of the documents and facts of the case to decide whether the party has a cause of action or defence. The fact that the case is weak and not likely to succeed is not a ground to strike out the case. So long as the pleadings disclose some cause of action or raised some issues fit to be tried, it is enough to sustain the case for trial, and it ought not be struck out (Refer to Bandar Builder Sdn Bhd & 2 Ors v United Malayan Banking Corporation [1993] 3 MLJ 36; Sim Kie Chon v Superintendent of Pudu Prison & Ors [1985] CLJ Rep 293). [30] The main issue for our determination in these appeals is whether the 2nd suit against the 2nd and the 3rd defendants is barred by res judicata. The parties referred to the Supreme Court decision in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 and affirmed by a later decision by the Federal Court in Scot & English (M) Sdn Bhd v Yung Chen Wood Sdn Bhd [2018] 6 CLJ 271. The plaintiff referred to the Court of Appeal decision of Letchumanan a/l Gopal v Pacific Orient & Co Sdn Bhd [2011] 6 MLJ 788, where it had been held that the doctrine of res judicata is applicable although the parties are different (also refer to 16 the Court of Appeal decision in Dato’ Sivananthan a/l Shanmugam v Artisan Fokus Sdn Bhd [2016] 3 MLJ 122). [31] It is not in dispute that both the 1st suit and the 2nd suit are in respect of the same cause of action involving the same subject matter, namely, trespass on the land belonging to the plaintiff. The relief prayed for is also for the alleged loss as a result of the alleged trespass of the land attributable to the extraction of sand in both the 1st and the 2nd suits. The learned High Court Judge made the same findings that both the 1st and the 2nd suits involve the very same issues arising from the same factual matrix. In fact the plaintiff in item 2 of its Memorandum of Appeal admitted that both the suits involved the same cause of action and/or the same facts. As against the 3rd defendant: [32] The 3rd defendant premised his striking out application on the basis that the 2nd action arises from the same cause of action as per the 1st action, namely the 2nd action is barred by res judicata. [33] We agree with the submission of the plaintiff above as far as the 3rd defendant is concerned. The facts pleaded in the Statement of Claim in the 1st suit and the 2nd suit as against the 3rd defendant are the same. The cause of action is the same, namely trespass to the land. However, the plaintiff submitted that the relief prayed for in the 1st suit and the 2nd suit is different in that, the remedy sought for in the 1st suit was for an injunctive relief against the trespass on the land, which according to the plaintiff was never determined in the 1st suit. Whilst the 2nd suit was for a declaration that the act of trespass was committed. 17 [34] We found the arguments of the plaintiff have no merits as the relief for an injunction as sought for in the 1st action is already academic as the plaintiff had withdrawn the application for the injunction. This is evidenced by the Order dated 30.4.2015 (page 142 of RA 143). [35] In any event (in respect of the 2nd suit against the 3rd defendant), it is also trite law that even though, as alleged by the plaintiff that the reliefs sought in the 1st suit is purportedly different from the 2nd suit, res judicata still bites, as the factual matrices are the same, the cause of action is the same and the parties are the same namely the plaintiff and the 3rd defendant. Res judicata also applies to issues or facts which are part of the subject matter of litigation which might have been and which were not brought forward, though not actually decided by the court. The relief prayed for, is premised on the same cause of action of trespass to the same land. The declaration sought in the 2nd suit could have been brought up earlier in the 1st suit. This cannot be made clearer than what had been held in Asia Commercial Finance (M) Bhd (above) whereby the Supreme Court held in its judgment at page 197: “………When a matter between two parties has been adjudicated by a Court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata proveritate accipitur. The public policy of the law is that it is in the public interest that there should be finality in litigation-interest rei publicae ut sit finis litium. It is only just no one ought to be vexed twice for the same cause of action-nemo debet bis vexari pro eadem causa…..” 18 Page 198 of the same case reads: “The starting point ought to be the celebrated passage by Wigram VC in the case of Henderson v Henderson [1843] 3 Hare 100 at p. which is: “The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time.” At page 200 of the judgment: “…….It is further necessary at this stage to understand the import of the words in the said famous statement i.e. ”….every point which properly belonged to the subject of litigation….”. Which Somervell LJ explained in Greenhalgh v Mallard [1947] 2 AER 255, 257 as follows: “…res judicata for this purpose is not confined to the issues which the Court is actually asked to decide, but it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them.” Wigram VC referred to “points” which according to Peh Swee Chin SCJ in Asia Commercial Finance (M) Bhd means the “points should actually include causes of action, or all causes of action which one of the two parties has against the other, based on, or substantially on the same facts or issues, and not just all issues of law or of fact that are in dispute between the parties.” 19 [36] It is clear that premised upon the principle as enunciated in the aforesaid cases, the plaintiff is estopped from bringing a similar cause of action on the same subject matter against the 3rd defendant. [37] The plaintiff alleged that the Order dated 5.8.2015 is not a final order as it is a decision based on an interlocutory proceedings and that there has been a serious misdirection by the learned High Court Judge. In this respect, we refer to the case of Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1997] 2 CLJ 104 where the Court of Appeal in its judgment addressed this issue of whether a decision made on an interlocutory proceedings is a final order. The Court was of the view that it does not matter whether the order in question was final or interlocutory and that the principle contended for applied to both types of orders: “[1] The learned Judge was faced with an objection as to the form of proceedings which had been adopted by the appellants. He came to the conclusion that the form chosen by the appellants was not irregular. Although that was a decision made on an interlocutory matter which was purely procedural in nature, it was, nevertheless, binding on the Court and on all parties to the lis until its reversal on appeal. Consequently, the decision of the learned Judge in overruling the respondent’s preliminary objection had rendered the point taken res judicata. [2] It cannot be over-emphasized that once a Judge makes a ruling, substantive or procedural, final or interlocutory, it must be adhered to and may not be re-opened willy-nilly. Certainty and finality are the two pillars on which the judicial process rests.” 20 At page 113 of the case, the Court of Appeal in its judgment stated: “If authority is needed for the proposition which has commended itself to us, it is to be found in Government of Malaysia v Dato’ Chong Kok Lim [1973] 2 MLJ 74 which was drawn to the attention of counsel during argument and in which there appears the following passage in the judgment of Sharma J (at p.76): In Satyadhyan Ghosel and orthers v Sint Deorajin Dobi & Another AIR [1960] SC 941, the statement of the law on the subject is given thus: “The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter-whether on a question of fact or a question of law-has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in s. 11 of the Code of Civil Procedure; but even where s. 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original Court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was correct. The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. 21 A decision given by a Court at one stage on a particular matter or issue is binding on it at a later stage in the same suit or in a subsequent suit (see Peareth v Marriot) [1883] 22 Ch. D 182, ….Parties cannot raise a second time in the same suit an issue that has already been determined either expressly or by necessary implication . (see Louis Dreyfus v Aruna Chalayya LR 58 IA. (Emphasis added)” Further in the case of Serac Asia Berhad v Sepakat Insurance Sdn Bhd [2013] 5 MLJ 1 the Federal Court held that: “[3] Once a regularly obtained order or judgment had been perfected, the court was functus officio. The matter, as decided vide enclosure 6, was thus res judicata and could not be re-litigated. The order made under enclosure 6 was appealed and affirmed right up to the Federal Court. It could not now be revisited or re-asserted under any guise in a subsequent proceeding. The issues raised by the respondent in enclosure 29 could have been brought up during the appeal process. The law does not allow the respondent to have a second bite of the cherry and in the manner as it did. [4] The relitigation of a regularly and properly concluded matter as determined by the court is prohibited by the wide doctrine of res judicata. The judicial process rests on the twin pillars of certainty and finality. A final order or a judgment must therefore be vigorously protected by this doctrine.” [38] The decision given by the learned High Court Judge in the 1st suit was based on the same subject matter and issue is binding on the court at a later stage in the same suit or in the 2nd subsequent suit. An issue that has already been determined either expressly or by necessary 22 implication cannot be raised by parties a second time in a subsequent suit. [39] Therefore, the plaintiff’s argument that the Order dated 5.8.2015 was not a final order has no merits. [40] The fact that the 2nd suit involves other defendants is not a basis to say that the 2nd suit against the 3rd defendant is different from the 1st suit. Regardless, the principle of res judicata is not affected by the absence of the other parties in the 1st suit. What is clear is that the 2nd suit without doubt, involves the same facts, the fact that the parties are different from the 1st suit does not disentitle the 3rd defendant from invoking the doctrine of issue estoppel to bar the plaintiff from relitigating a specific issue that had been litigated in the 1st suit. Here, the 3rd defendant was a party in the 1st suit and also a party in the 2nd suit, except that he is being sued with other defendants. The doctrine seeks to prevent abuse of the process of court by attempting to take a second bite of the cherry by relitigating the same issues and reliefs based on the same subject matter for which judgment had been given. [41] The plaintiff seeks to distinguish the 1st suit and the 2nd suit by stating that the capacity in which the 3rd defendant was sued was different in that the 1st suit was brought through himself and/or his agent trading under the name and style of “Sri Gumut Enterprise”, is misleading the court. The 3rd defendant is the sole proprietor of Sri Gumut Enterprise and not a separate entity that was sued in his individual capacity. In any event, the 3rd defendant was sued in his individual capacity in the 1st suit and also in the 2nd suit. The 3rd defendant retains the same liabilities as if he is 23 the sole proprietor. In the case of Wong Yoon Yar v Lin Yin Thai & Ors [1987] 2 MLJ 714 where the Court held that: “The same situation applies to a sole proprietor . He may not wish to carry on business in his own name but prefer to choose something more colourful or meaningful to bring luck and prosperity to his business. So, he chooses a “chop” name and trades under that. But he does not by so doing create an entity separate from himself. He retains just the same liabilities and obligations in regard to his business…” [42] Another issue raised is the fact that the 3rd defendant pleaded guilty on the charges under section 379 and 447 in the Sepang Sessions Court on 26.7.2016 which was one year after the decision on 5.8.2015. We are of the view that the plea in the Sepang Sessions Court cannot be a basis to override the principle of res judicata. [43] It is to be noted that there has been no appeal by the plaintiff against the decision of the High Court dated 5.8.2015, but instead the plaintiff chose to file the 2nd suit against the 3rd defendant premised on the same set of facts and same issues. We view this as: i) a concession that the decision of the learned Judge in the 1st suit was correct and therefore the plaintiff would be precluded from canvassing the same argument in the 2nd suit; ii) a deliberate attempt to circumvent the necessary appeal procedure and therefore amounts to an abuse of court process. 24 (refer to the Federal Court case of Lim Oh & Ors v Allen & Gledhill [2001] 3 MLJ 481). [44] Therefore, with regards to the 3rd defendant, inevitably the 2nd suit filed by the plaintiff is caught by the principle of res judicata and hence the learned High Court Judge did not err when he allowed the application of striking out of the 2nd action by the 3rd defendant. As against the 2nd defendant: [45] The 2nd defendant premised his striking out application on the grounds of no reasonable cause of action, res judicata and that the plaintiff’s claim was scandalous, frivolous and vexatious and an abuse of court process. [46] On whether the plaintiff has a reasonable cause of action, premised on the pleadings, it is clear that the plaintiff’s cause of action is trespass to property where it was alleged that the defendants had encroached on the property and extracted sand therefrom. Therefore this basis of striking out cannot hold. [47] The main issue is whether the 2nd suit is caught by res judicata. [48] The learned High Court Judge had referred to and applied the averments in paragraph 5 of the affidavit in reply by the plaintiff which was affirmed on 15.1.2018, to make a finding that the plaintiff has no basis to institute a claim against the 2nd defendant. The relevant paragraph of the said affidavit in reply is reproduced here when the plaintiff states: 25 “Oleh yang demikian, saya mengatakan bahawa pada waktu material, kecuali melalui keterangan papan cadangan tersebut, plaintif memang tidak mempunyai sebarang keterangan atau bukti mengenai penglibatan Defendan Kedua (Lee Wai Soon atau sesiapa lain sebagai pekerja, perkhidmatan atau agennya….” (Refer to RRT at pages 15-16) [49] However, the learned High Court Judge failed to consider the averment of the 3rd defendant in the 1st suit where he states: “Begitu juga dengan pekerja seramai 6 orang tersebut, selain tiada sebarang pengetahuan mengenainya, Defendan tidak pernah menggajikan mana-mana individu untuk membuat perbuatan kelakuan menceroboh tanah milik Plaintif..” Since the 3rd defendant had denied that the 6 individuals/workers who were allegedly carrying the act of trespass on plaintiff’s land were his employees/workers, then the question arose as to who are these individuals. These are matters that should be sent for trial of the 2nd suit for the determination of who are these individuals, whether they were employed by the 2nd defendant. The 2nd defendant was not named in the 1st suit as the plaintiff did not have any idea of the involvement of the 2nd defendant then. It was held by the learned judge that the plaintiff could have included the 2nd defendant, 5 months before the 1st suit was struck out as the 2nd defendant had pleaded guilty on trespass in the criminal Sessions Court. However, we are of the view that the plea of guilt by the 2nd defendant in the Sepang Sessions Court and the pleadings by the 2nd defendant in his Amended Statement of Defence that his involvement in the trespass is premised upon the representation of the other defendants that they have 26 the authority to enter onto the land, are issues that need to go for trial. This was never an issue in the 1st suit as the 1st suit only concerned the 3rd defendant. The 2nd defendant was never in the picture when the 1st suit was filed. In fact from the pleadings in the 1st suit, the plaintiff did not know of the existence of the 2nd defendant at that point in time. [50] At this stage, as far as the 2nd suit against the 2nd defendant is concerned, it is not clear whether res judicata applies unlike the situation as against the 3rd defendant. The 2nd defendant was not sued in the 1st suit unlike the 3rd defendant, who was sued in both the suits. Hence, we are of the view that, the 2nd suit against the 2nd defendant should go for trial. [51] Whether the plaintiff would succeed in his claim against the 2nd defendant is not the concern of the Court at this stage. The plaintiff must be given his day in Court to prove that the trespass was/was not committed by the 2nd defendant and/or the other defendants (excluding the 3rd defendant). [52] The 2nd defendant is not precluded from raising and arguing the defence of res judicata again at the trial. There will be no prejudice to parties, if the matter is to proceed with full trial. However, the plaintiff would be seriously prejudiced, if the matter is to be struck out at this stage, as the plaintiff would be deprived of the opportunity to prove his case. This would cause grave injustice to the plaintiff. We are minded of the position in law that the doctrine of res judicata was “designed to achieve justice, a court should decline to apply it, if its application would lead to an unjust result”. (refer to Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1). It is also to be borne in 27 mind that this is a striking out application by the 2nd defendant. All the plaintiff needs to show is that there are issues fit for trial, which we found that there are. So long that there is a cause of action and there are disputed issues, the case ought to go for trial, no matter how weak the case may be. The plaintiff should be given his day in court against the 2nd defendant. Conclusion: [53] Therefore premised on the aforementioned reasons, we found that Appeal 143 is caught by res judicata. With respect to Appeal 396, it is not clear to us that it is caught by res judicata. There will be no prejudice if the suit against the 2nd defendant is to go for trial. Appeal 143 is dismissed with costs and Appeal 396 is allowed with costs. Signed by: Zabariah Mohd Yusof Judge of Court of Appeal Putrajaya Date: 13.3.2019 28 COUNSEL: Normaslina Abdul Fuad, Mohd Azzamauddin Shah Yaakup for the Appellant [Messrs B.H. Gan, Nor & Kim] Nur Sazila Abd Halim for the Respondent (Appeal 143) [Messrs Iza Ng Yeoh & Kit] Hasmaliza Othman for the Respondent (Appeal 396) [Messrs Fairuz Adiba & Partners]
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