The doctrine of res judicata requires precise determination of issues; lacking this, the defense fails.

Abdul Malik Ishak J:

This was an application by way of a summons in chambers filed by the defendant in encl. 8 for the plaintiff's action to be struck out on the grounds that the action filed by the plaintiff constituted an abuse of the process of the court and particularly that the subject matter of the action was said to be res judicata. Enclosure 8 was supported by an affidavit of Chiew Hon Keong that was affirmed on 14 July 1998 and which was filed on 17 July 1998 as seen in encl. 7. There was no affidavit in reply to encl. 7 and this was agreed by both parties. Tun Salleh Abas, learned senior counsel for the plaintiff, rightly pointed out that there was no necessity to file an affidavit in reply to that of encl. 7 as the whole matter revolved on a question of law.

Mr. Chin Yew Meng, learned senior counsel for the defendant, argued that the application to strike out in encl. 8 was made because it was related to a previous action filed before another branch of the High Court in Kuala Lumpur vide civil suit no: S1-22-141-1996 (hereinafter referred to as the "first action") which was struck out summarily by the senior assistant registrar ("SAR") on the ground that it was an abuse of the process of the court. The parties to the first action as can be seen in exh. "CHK 1" of encl. 7 were:

CIVIL SUIT NO: S1-22-141-1996

BETWEEN

(1) WONG SAI TACK @ ONG TEE DAKE

(2) CHAN TIAM BENG ... PLAINTIFFS

AND

(1) CHONG SHIH GUAN

(2) NGEOW SZE CHAN

(3) CHOW KIM LIN

(4) PERSATUAN CHHA YONG FAY KUAN SELANGOR DAN WILAYAH PERSEKUTUAN 205 DEFENDANTS

whereas in the present action, there are only one plaintiff and one defendant. The sole defendant in the present action is the public officer of the Association known as the Association of Chha Yong Fay Kuan Selangor and Wilayah Persekutuan. In the first action, there were two plaintiffs and four defendants. Of pertinence, would be the absence of the public officer of the Association being cited as a party in the first action.

Tun Salleh Abas, with vigour and vitality, summarised the law on res judicata in this way. It was his submission that there must be three pre-requisites before the doctrine of res judicata can come into play:

(1) there must be identity of parties;

(2) the issue must be the same; and

(3) the same issue was already finally determined with precision.

Obviously the parties to the first action and that of the present action are different because in the first action there was a second plaintiff while the sole plaintiff in the present action was the first plaintiff in the first action. Yet, ironically, both sides agreed that the identity of the parties are the same. The issue in the first action with that of the present action are at par with one another and the issue may be stated as follows:

Whether the properties in both the suits were held on trust for the Association of Chha Yong Fay Kuan Selangor Wilayah Persekutuan or for the descendants of the estate of Wong Chi Siu @ Ong Chee Siew.

In summarily striking out the first action, the SAR ruled that the public officer of the Association of Chha Yon Fay Kuan Selangor should be the right defendant and should be sued and for that reason the SAR struck out the first action. It was for this very reason that the present action was filed citing the right defendant. In short, the SAR struck off the first action without finally determining the issue with precision.

I have been supplied with the grounds of decision of the SAR when he decided to strike out the first action summarily. The SAR certainly erred when he went beyond the terms of the summons in chambers as reflected in exh. "CHK 3" of encl. 7. That summons in chambers for striking out the first action was under O. 18 r. 19(1)(b), (c) and (d) of the Rules of the High Court 1980 ("RHC"), namely, under category of bein