Gopal Sri Ram JCA (majority):

[1] This appeal concerns the application of the doctrine of res judicata. It is a point of some importance. It gives rise to difficulty in particular cases from time to time. This is one such case. That is why we decided to reserve judgment at the close of argument.

[2] The facts relevant to this appeal are not in dispute and may be shortly stated.

[3] On 4 October 1988, the appellant (which I will refer to as 'the bank') commenced an action for the recovery of monies owed it. It was Civil Suit No:23-209-88. For convenience I shall call it "the first action". There were six defendants. The instant respondent was one of them. He was the third defendant. He was sued as guarantor. The guarantee he gave was enforceable on demand. In accordance with high authority a valid demand was essential before the bank could sue upon the guarantee. See, Mok Hin Wah & Ors v. United Malayan Banking Corp Bhd, [1987] 2 MLJ 610; [1987] CLJ 219.

[4] The bank obtained judgment against all the other defendants in the first action. The respondent however applied to strike out the bank's statement of claim. He moved on the ground that no proper demand had been made of him.