Abdul Hamid Mohamad FCJ:

The appellant in this court was also the appellant in the Court of Appeal and the plaintiff in the High Court.

In 1988, the appellant commenced Civil Suit No. D4-23-356-88. It was struck out on the ground that the writ had expired and its renewal was irregular. That suit does not concern us here.

On 1 December 1989, the appellant commenced Civil Suit D3-22-2531-89 in the High Court at Kuala Lumpur ("the first suit").

On 19 May 1990 the respondent filed a summons in chambers (encl. 8) for an order that:

(a) the plaintiff's claim herein be struck out and/or stayed;

The grounds of the application were:

1. This action had been commenced without the authority of the Plaintiff's board.

2. The Plaintiff's solicitors have failed, despite demands, to produce evidence of such authority.

On 6 September 1990, at the hearing of the summons in chambers (encl. 8), the notes recorded by the senior assistant registrar shows that the respondent's counsel applied for the minute book of the appellant to be produced for inspection by learned counsel for the respondent as he was of the view that the resolution was backdated. The learned senior assistant registrar adjourned the hearing of encl. 8 to 11 October 1990 for the appellant "to supply minutes book" to the respondent by 4 October 1990.

On 11 October 1990, the matter again came up before the senior assistant registrar. The learned counsel for the respondent complained that the appellant did not allow the respondent's counsel to see the minute book to check whether the resolution was backdated. Only the particular resolution was shown. As a result the respondent's counsel could not determine whether the resolution was backdated.

Learned counsel for the appellant replied: "We won't show any other thing."

The learned senior assistant registrar then recorded an order in terms.

The "order in terms" clearly refers to the prayers in encl. 8.

The appellant then filed a notice of appeal to the judge in chambers (encl. 10). The appeal came up before the judge in chambers on 25 October 1990. Both parties were absent and the learned judge struck out the appeal.

The matter ended there.

On 21 May 1992, the appellant filed a fresh action D3-22-723-92 ("the second suit"). The parties and the cause of action were the same as in the first suit. The writ and the statement of claim were served on the respondent and the respondent duly filed its appearance.

The statement of claim was amended on 2 September 1992 without leave of the court.

On 10 January 1994, the appellant applied to re amend the amended statement of claim.

On 11 January 1994, the respondent filed a summons in chambers pursuant to O. 18 r. 19 of the Rules of the High Court"(RHC 1980)",inter alia, for an order that "the amended statement of claim dated 20 October 1992 be struck out and set aside." The principal ground was that the appellant was "reagitating an action that was struck out for non-compliance with an order of court" and that this amounted to an abuse of the process of the court.

On 28 June 1995, the learned judge dismissed the application to strike out. He, however, allowed the setting aside of the amended statement of claim but made no order on the application to re-amend.

The appellant lodged two separate appeals to the Court of Appeal. The first appeal was in respect of the setting aside of the amended statement of claim (W-02-476-95). The second was in respect of the refusal to make an order on the application to re-amend (W-02-480-95).

The respondent cross-appealed in W-02-476-95 in relation to the refusal to strike out the second suit (D3-22-723-92).

On 17 September 1996, the Court of Appeal heard the cross-appeal first and allowed it. No grounds have been given. It is against that decision of the Court of Appeal that the appellant appealed to this court. And this judgment is in respect of that appeal.

(The Court of Appeal also dismissed both the appeals in W-02-476-95 and W-02-480-95. The appell