Ramly Ali J:

[1] Enclosure 117 is an application by contributory of the respondent company ie, Mr. Chin Cheen Foh (the applicant) to remove the liquidator of the respondent (Mr. Ong Tee Chow) pursuant to s. 232 of the Companies Act 1965.

[2] In addition to being a contributory, the applicant is also interested in the affairs of the respondent as a creditor vis a vis Messrs TH Jaya Marketing, a business wholly owned by Mr. Chin Cheen Foh

[3] The applicant has raised five grounds in his application ie,:

(a) Failure to prepare accounts as required;

(b) Selected payment to one of the creditors namely the 2nd intervener;

(c) Bias by the liquidator against the applicant in rejecting a proof of debt filed by Messrs TH Jaya Marketing (which is wholly owned by the applicant);

(d) The liquidator does not have the confidence of the majority of the creditors and contributories;

(e) There is an appeal by the interveners against the refusal of their application to remove the liquidator.

Res Judicata/Issue Estoppel

[4] The intervenes had previously filed an application to remove the same liquidator (encl. 95).

[5] During the hearing of encl. 95, the applicant appeared by counsel and supported the application for the liquidator's removal.

[6] This court on 11 September 2002 dismissed encl. 95. This is the decision that is now under appeal referred to in ground para. 3(e) above.

[7] Two of the three intervenes who filed encl. 95, are now supporting the present application. They have even filed affidavits.

[8] These intervenes are bound by the decision of the court in encl. 95 and are now prevented based on the principle of res judicata from filing/supporting a similar application and hence re-litigating the same issues.

[9] The object of the rules of res judicata as set out in the case of Lockyer v. Ferryman [1877] AC 519 at 530 is put upon 2 grounds:

(a) Public policy, that it is the interest of the State that there should be an end to litigation, and

(b) The hardship on the individual, that he should be vexed twice for the same cause.

[10] The fact that the applicant actively supported encl. 95, makes him equally bound by the earlier decision in encl. 95. This principle as stated in the case of Nana Ofori Atta II v. Nana Abu Bonsra II [1957] AC at 101 where the Privy Council stated:

The general rule of law undoubtedly is that no person is to be advesely affected by a judgment in an action to which he was not a party, because of the injustice of deciding an issue against him in his absence. But this general rule admits two exceptions: one is that a person who is in privity with the parties, a 'privy' as he is called, is bound equally with the parties, in which case he is estopped by res judicata: the other is that a person may have so acted as to preclude himself from challenging the judgment, in which case he is estopped by his conduct ... This conduct sometimes consists of active participation in the previous proceedings ...

[11] This decision of Nana Ofori was followed by the Malaysia Court of Appeal in the case of Tradium Sdn. Bhd. v. Zain Azahari bin Zainal Abidin & Anor. [1996] 2 CLJ 270 at pp. 273, 276.

[12] Whilst issue estoppel refers to issues which were actually decided,res judicata in its wider sense applies to issues/matters which could have been raised in the earlier proceedings but which were not, and which properly belong to the subject matter of that earlier litigation. This principle was first enunciated in the very old case of Henderson v. Henderson [1843] 3 Hare 100 where it was stated that:

... where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was no