Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2020 MarsdenLR 608

COURT OF APPEAL PUTRAJAYA
DATO AHMAD JOHARI TUN ABDUL RAZAK – Appellant
Versus
A SANTAMIL SELVI ALAU MALAY @ ANNA MALAY & ORS AND OTHER APPEAL.... – Respondent
[Civil Appeal Nos: W-02(IM)(NCVC)-237-02-2018 W-02(IM)(NCVC)-286-02-2018 W-02(IM)(NCVC)-287-02-2018 W-02(IM)(NCVC)-288-02-2018 W-02(IM)(NCVC)-289-02-2018 & W-02(IM)(NCVC)-348-02-2018]

Petitioner Advocates:Dinesh Bhaskaran,Serena Azizuddin ,Respondent Advocate: Gopal Sri Ram,Americk Sidhu,Chin Yan Leng,Damien Chan,Khairul Anwar

The Second Suit was dismissed due to res judicata and being time-barred, as it was a repetition of the First Suit which was previously struck out.

Headnote:(A) Courts of Judicature Act 1964 – Section 69 – Limitation Act 1953 – Section 6(1)(a) – Dismissal of striking out applications on grounds of res judicata and limitation – Court found that Second Suit is barred as it is a repetition of the First Suit and thus an abuse of process, with no new causes of action established – First Suit was dismissed due to lack of locus standi; appellants successfully argued that the claim was time-barred (Paras 30, 37-71).

(B)

Fresh Evidence – The court ruled that the evidence sought to be introduced was neither fresh nor relevant as it pertained to events prior to the striking out application – Plaintiffs failed to satisfy the conditions required to admit new evidence at the appellate stage (Paras 14-30).

(C)

Findings of Court – The Second Suit constitutes an abuse of process, being nearly identical to the previously dismissed First Suit; the claim was time-barred as it was filed after expiration of the limitation period (Paras 70-71).

(D)

Issues

: Whether the doctrine of res judicata applies to the Second Suit and if the claim is barred by limitation. (E)

Ratio Decidendi:

The court affirmed that the res judicata doctrine prevents a party from relitigating a cause of action which has already been determined, stressing the need for finality in litigation (Paras 38-50). (F)

Result:

Appeals allowed, Second Suit dismissed. (Paras 70-71).

JUDGMENT

Suraya Othman JCA:

Introduction

[1] The eight appellants/defendants herein are appealing against the decision of the learned High Court Judge, Hue Siew Kheng J made on 30 January 2018, dismissing the appellants Striking out Applications under O 18 r 19 of the Rules of 2012 [PU(A) 205/2012].

Background Facts

[2] The 1st respondent/1st plaintiff, (A Santamil Selvi Alau Malay @ Anna Malay) is the wife and the Administratrix of the Estate of Balasubramaniam Perumal ("the deceased").

[3] The deceased was at all materials times, a registered private investigator and had been engaged by one of the accused in the Altantuya murder trial, Abdul Razak Baginda in the months of July and October 2006, to provide protection services in respect of the alleged harassment Abdul Razak Baginda and his family were receiving from Altantuya. The deceased passed away on 15 March 2015.

[4] The plaintiffs filed a suit against the defendants in the Kuala Lumpur High Court on 23 June 2014 through Civil Suit No: 22NCVC-281-06-2014 ("First Suit"). In this First Suit, all the plaintiffs brought the suit on behalf of and for the benefit of the estate of the deceased for the harm and injury suffered by the deceased. In other words, the cause of action was grounded on the tort of conspiracy to injure wherein the plaintiffs alleged that the defendants, by unlawful means, acting individually and/or in concert with each other, had caused damage to the plaintiffs and the deceased Balasubramaniam Perumal, the late husband of the 1st plaintiff, in that the defendants had intentionally evict or remove, thereby uprooted the plaintiffs and the deceased from Malaysia, whereby they were put to loss and expense and mental anguish.

[5] The defendants in the First Suit then proceeded to file their respective O 18 r 19 applications to strike out the First Suit. On 11 December 2014, these applications were allowed (1st Order) by the High Court Judge (HCJ) on the ground that the 1st plaintiff has no locus standi to institute the suit since she has not extracted the Letters of Administration and has failed to plead that there was an agreement between the 8th defendant and the other defendants to injure the plaintiffs. On appeal by the plaintiffs, the Court of Appeal dismissed the plaintiffs appeals. The plaintiffs then filed a motion for leave to the Federal Court which was also dismissed on 2 December 2015.

[6] On 13 July 2017, the same plaintiffs filed the Writ and Statement of Claim ("SOC") premised on the same facts against the same defendants claiming the same relief ("Second Suit"). The 1st plaintiff, A Santamil Selvi brought the suit as the administratrix of the deceased estate as well as in her personal capacity. The other plaintiffs who are her children brought the suit in their personal capacities. The defendants, except for the 8th defendant (Deepak), once again proceeded to file their respective O 18 r 19 applications to strike out the Second Suit on the grounds that the Second Suit was res judicata and that limitation has set in.

[7] On 30 January 2018, a different HCJ heard the matter and dismissed the said O 18 r 19 applications (2nd Order). Aggrieved, the defendants appealed to us.

[8] On the date of hearing of the defendants appeals, the plaintiffs informed us that they had filed six notices of motion to adduce fresh/new evidence and these notices of motion have to be heard and disposed of first before the hearing of the striking out appeals. We heard the plaintiffs motion and after due consideration, dismissed the said motion. We then proceeded to hear the appeals by the defendants and after careful consideration of the written submissions and after hearing oral arguments, we unanimously allowed the appeals. We now provide our reasons for so doing and for convenience, the parties will be referred to as they were in the High Court or by their abbreviations.

Plaintiffs Notices Of Motion To Introduce Fresh/New Evidence

[9] The plaintiffs filed six identical Notices

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2020 MarsdenLR 608

The Second Suit was dismissed due to res judicata and being time-barred, as it was a repetition of the First Suit which was previously struck out.

Cases Referred (2)