Claims based on the same facts in prior litigation are barred by doctrines of res judicata and abuse of process; torts of malicious prosecution and fraud do not apply in this context.

JUDGMENT

Mohd Arief Emran Arifin JC:

A. Introduction

[1] The plaintiff's claims against the defendants are based on the following torts:

1.1 The defendants had committed fraud and perjured themselves at the earlier trial in the civil suit no: S5-22-1333- 2007 (1333 suit) at the expense of the plaintiff and to cause damage and loss to the plaintiff concerning his claim under the said 1333 suit.

1.2 The defendants had conspired by fabricating evidence, creating false facts and evidence presented at the 1333 suit to cause damage and loss to the plaintiff concerning his claim under the said 1333 suit.

1.3 The defendants had committed the tort of abuse of process based on the same acts of alleged fraud, perjury, fabrication of evidence and creating false evidence to prevent the Plaintiff from exercising his rights and obtaining redress from the Courts.

1.4 The 1st defendant had committed the tort of malicious prosecution based on the same acts of alleged fraud, perjury, fabrication of evidence and creating false evidence to prevent the plaintiff from exercising his rights and obtaining redress from the Courts.

[2] Particulars of the claim by the plaintiff against the defendants can be seen in the following paragraphs of the plaintiff's Statement of Claim:

2.1 Fraud based on the alleged perjury by the defendants - paragraphs 35 to 63 of the Statement of Claim

2.2 Conspiracy - paragraphs 63 to 64 of the Statement of Claim

2.3 The tort of Abuse of Process - paragraphs 65 to 65.5 of the Statement of Claim

2.4 The tort of Malicious Falsehood - paragraphs 66 to 70.1 of the Statement of Claim

[3] The 1st, 2nd, 3rd, 4th, and 5th defendants have applied to strike out the suit (Enclosures 13, 16, 34 and 36) under O 18 r 19 of the Rules of 2012 on the following grounds:

3.1 That the claim is subject to the doctrine of Res Judicata in the narrow and the wider sense.

3.2 That the claim is an abuse of process.

3.3 The plaintiff has not pleaded a valid cause of action against the defendants.

3.4 The defendants are entitled to rely on Witness Privilege.

3.5 The plaintiff has been fully compensated for his alleged damages in the previous suit.

I note however the 2nd defendant has relied solely on the ground of Witness Immunity and relies on O 18 r 19(1)(a) of the Rules of 2012.

[4] It is important that I also state a brief history of the litigation between parties:

4.1 On or about 19 November 2007, the plaintiff had commenced a civil suit against the 1st defendant based on an acknowledgement of a debt dated 6 November 2006 in respect of the sum of RM8, 018, 225.0 (1333 Suit) for the sale of the shares in the company known as Euroceramic Technologies Company Ltd ("ECT").

4.2 The 1st defendant had also faced a second suit filed by one Roger Yue via the Civil Suit No: D-22-NCC-1530-2010 (1530 Suit) in relation to an alleged breach of a sale and purchase agreement of the same ECT shares. Roger Yue alleges that the sum of RM3.8 million is due.

4.3 In both suits, the 1st defendant had filed a defence and counterclaim to the claims filed by the plaintiff and Roger Yue.

4.4 The 1st defendant and the defendants joined in this suit had given evidence in the 1333 suit which is summarized as follows:

(i) Plaintiff's case - 2nd defendant.

(ii) First defendant's case - 1st defendant, 3rd, 4th and 5th defendants.

B. Law On Striking Out

[5] The applicable law on striking out a Statement of Claim or any pleading under O 18 r 19 of the Rules of 2012 is trite and is summarised as follows:

(i) The Court must consider whether an applicant could show that it is a plain and obvious case that recourse should be had to the said process under the above-referred rule and that the claim on the face of the document is "obviously unsustainable";

(ii) A striking out is not a trial on affidavits and the Court should not conduct a minute examination of the documents through the affidavit. As long as there is a valid claim on the face of the pleadings or raises some questions fit to be tried it should not be