GROUNDS OF DECISION (Enc. 29)

The Plaintiff's claim in contract for RM218 million. The original Defendant to the Plaintiff's claim was Dato' Seri Abdul Azim bin Dato' Mohd Zabidi, the, then treasurer of Pertubuhan Kebangsaan Melayu Bersatu (UMNO). Dato' Seri Abdul Azim took objection to being named the representative of UMNO in the claim as under action s. 9 (c) of the Societies Act 1966 , the registered Public Officer of UMNO ought to have been named as the representative of UMNO. The Plaintiff acknowledged its mistake and by Enc.27 sought to amend the description of the Defendant by replacing the name of Dato' Seri Abdul Azim bin Dato' Mohd Zabidi with Encik Ishak bin Abd. Rahman, the registered Public Officer of UMNO. Enc. 27 came on for hearing before me on 3^rd September 2009 and I allowed the amendment. I exercised my discretion in favour of allowing the amendment because disallowing the amendment would only have resulted in the filing of a fresh claim, bearing in mind, that, the claim is, as yet, not barred by limitation. I compensated Dato Seri Abdul Azim bin Dato' Mohd Zabidi by awarding him costs of RM5,000.

On the 12 February 2009, the Defendant filed this application under O. 18 r. 19 (a)(b)(c)(d) of the RHC 1980 (Enc. 29) . The application is grounded on all the four limbs of O. 18 r. 19 . A perusal of the affidavits filed by the Defendant in support of this application, including the affidavits filed in support of the setting aside of the default judgment application, disclose the basis to be two-fold. These other affidavits were admitted pursuant to a notice filed by the Defendant to read these affidavits in support of Enc. 29. First, that there is no privity of the contract between the Plaintiff and the Defendant. Secondly, that the pleaded cause of action is barred by the principle of res judicata .

I will deal with the second basis first. I accept the submission of Counsel for the Plaintiff that the Plaintiff's claim is not barred by the operation of the principle of res judicata since the Plaintiff was not a party in Kuala Lumpur High Court Civil Suit number S5-22-326-05. Res Judicata would only apply if the Plaintiff was a party to the previous litigation. Accordingly, I dismiss this ground as a basis to set aside the Plaintiff's claim under O. 18 r. 19 of the RHC .

Before dealing with the first basis, I would like to set out the law on the primary function of the statement of a claim; what facts need to be pleaded for a claim based on contract and the effect, in law, of pleading different causes of action in the indorsement and the body of a statement of claim.

"The primary function of a statement of claim is to plead a reasonable cause of action against the Defendant by setting out in summary form all the material facts upon which the Plaintiff relies to establish a viable legal right enforceable against the Defendant. In order, to achieve the purpose of establishing a cause of action (which has been defined as "simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person") a statement of claim should set out 'every fact which it would be necessary to prove, if traversed, in order to support (the Plaintiff's) right to the judgment of the Court". (Atkin's Court Forms (vol. 32) 2^nd Ed pg.23.

"The pleading should state the date of the alleged agreement, the names of all parties to it, and whether it was made orally or in writing. In the former case stating by whom it was made and in the latter case identifying the document, and, in all cases, setting out the relevant terms relied on (Turquand v. Fearon , 48 L.J.Q.B. 703). If the agreement be not under seal the consideration also must be stated. The precise words used in the making of an oral agreement need not be stated. Where a contract is alleged to be implied from a series of letters or conversations or otherwise from a number of circumstances, the contract should be alleged as a fact, and