Zulkefli Makinudin FCJ:

Introduction

[1] This is an appeal by the appellant against the decision of the Court of Appeal which dismissed the appellant's appeal against the decision of the Muar High Court Civil Suit No 22-49-2002. Before the High Court the appellant was the defendant and the respondent was the plaintiff. We shall refer to the parties as they were before the High Court.

Background Facts

[2] On 2 April 1996, the plaintiff filed an action against the defendant for breach of trust at the Muar High Court ("the first suit"). On 12 August 1999 the High Court gave directions as to the conduct of the suit. The plaintiff did not comply with these directions. On 9 March 2002 the High Court acting on a notice to show cause issued by it on 15 January 2002 made an Order striking out the first suit. The plaintiff did not appeal against this Order. Instead the plaintiff filed a second suit against the defendant. This second suit was filed on 3 April 2002. The defendant took part in the second suit by filing an appearance, statement of defence and amended statement of defence. Pursuant to O 34 of the Rules of High 1980 ("RHC 1980"), the plaintiff filed a notice of pre-trial case management on 8 November 2002, but until 19 April 2006 the notice was still not heard by the Muar High Court due to repeated adjournments made at the request of the plaintiff. There were also repeated changes of the plaintiff's solicitors and with each change of solicitors the plaintiff made an application to amend her writ of summons and statement of claim. On 19 April 2006 the defendant took out a summons to strike out the second suit on the ground that it amounted to an abuse of the Court's process. The High Court dismissed that application. The defendant appealed to the Court of Appeal against the decision of the High Court but her appeal was again dismissed.

The Appeal

[3] On 30 July 2008 this Court granted leave to the defendant to appeal against the decision of the Court of Appeal on the following question:

Where a defendant to a suit which is an abuse of process has taken part in the suit, is he estopped, by virtue of such participation from subsequently having it struck out?

Decision

[5] We would like to state here that estoppel is an equitable doctrine. Whatever description, whether estoppel by election, estoppel in pais, or promissory estoppels or quasi estoppels, it could only be invoked by a party who comes to Court with clean hands. The plaintiff when relying on the equity of estopel by election, must show that she has an equity to enforce against the defendant. (See the case of Cheng Chuan Development Sdn Bhd v. Ng Ah Hock, [1982] 2 MLJ 222). In the present case there is no basis upon which an equity could arise in favour of the plaintiff having noted that the plaintiff in fact elected to end her litigation by not appealing against the High Court Order dated 9 March 2002 striking out the plaintiff's first suit. The plaintiff is estopped from filing the second suit. With respect, on this issue w