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2011 MarsdenLR 2179
HIGH COURT BINTULU
LAYONG BUDIT & ORS – Appellant
Versus
TR GIRI TUNTONG & ORS – Respondent
[Civil Suit No: 21-02-2009 (Btu)]
An interlocutory dismissal for want of prosecution does not bar a new claim on the same facts, as it does not constitute a final judgment on the merits.
Headnote:(A) High Court Rules 1980 - Order 18 Rule 19 and Order 92 Rule 4 - Res Judicata - Plaintiffs' claim dismissed on the grounds of res judicata as Defendants argued Plaintiffs were barred from relitigating the same facts as in Suit No. 22-13-2007 (BTU) - Previous suit struck out on procedural grounds without consideration of the merits - Court emphasized that a dismissal for want of prosecution does not constitute a final judgment and does not bar a new claim on the same facts. (Paras 1-2)
(B) Estoppel - There was no contumelious conduct by Plaintiffs leading to the striking out of the 2007 Suit - The case remains distinguishable from res judicata principles due to absence of decision on merits. (Paras 1-2)
Facts of the case:
Defendants sought to strike out a suit claiming native customary rights over land, asserting the claim was barred by res judicata based on a previous suit. The 2007 Suit was dismissed for procedural reasons, leaving the merits unlitigated.
Findings of Court:
The Defendants' application was dismissed as the prior dismissal did not constitute a final judgment and did not bar the Plaintiffs from commencing a new suit.
Issues: The key issue was whether the Plaintiffs' current suit was barred by res judicata due to the previous dismissal of the 2007 Suit.
Ratio Decidendi: An interlocutory dismissal for want of prosecution does not prevent a party from commencing a new action. The Court recognized that procedural dismissals should not punish a litigant who has not had their cause heard.
Result: Application dismissed with costs to the Plaintiffs.
| Table of Content |
|---|
| 1. application details and plaintiff's claim. (Para 1 , 2 , 3 , 4 , 5) |
| 2. defendants' res judicata argument. (Para 6 , 7) |
RULING
This is an application by the 1st to 6th Defendants ("Defendants") to strike out the Plaintiffs' claim under O 18 rule 19 and O 92 rule 4 Rules of the High upon the ground of res judicata . Upon reading the following:-
1. Encl. 3 - Writ of Summons;
2. Encl. 42 - application (Prayers 2 and 3) by the 1st to 6th Defendants to strike out the Plaintiffs' suit under O 18 rule 19 and other reliefs with Affidavit in Support of Ting Khai Tung affirmed on 14th June 2010 ("Defendants' Affidavit");
3. Encl. 45 - Affidavit in Opposition affirmed by Baru Bian on 28th June 2009 ("Affidavit in Opposition");
4. Encl. 51 - Supplementary Affidavit in Opposition affirmed by Baru Bian on 28th June 2010 ("2nd Affidavit in Opposition"); and
5. Encl. Affidavit in Reply of Ting Khai Tung affirmed on 25th August 2010 ("Defendants' Reply");
Submissions & Bundles:-
1. Encl. 60A - Defendants' submission;
2. Encl. 60B - Defendants' Bundle of Authorities;
3. Encl. 60 - Plaintiffs' submission;
4. Encl. 63 - Plaintiffs' Bundle of Authorities;
5. Encl. 69 - Defendants' skeletal Reply;
6. Encl. 70 - Defendants' Supplementary Bundle of Authorities; and
7. Encl. 72 - Plaintiffs' Reply submission;
and hearing the submissions of learned Counsel for the Defendants and the Plaintiffs, I will dismiss the Defendants' application on the following grounds:-
1. O 18 rule 19 RHC 1980
A reading of the writ (Enc. 3) in this suit shows the Plaintiffs are seeking to establish native customary rights over land situate at Rh Giri, Sg. Kelabat, Pandan, 97100 Sabuah, Sarawak as described therein by the manner and on the facts stated therein and for reliefs which are in pari materia to the Suit No. 22-13-2007 (BTU).
In an application under O 18 rule 9(1)(b) to (d) RHC 1980 , affidavit evidence may be used and learned counsel for the Defendants had referred to paragraphs 5 and 6 of the Defendants' Affidavit setting out the basis for their striking out the Plaintiffs' present suit:-
1) The Plaintiffs had by Writ of Summons under Suit No. 22-13-2007 (BTU) ("2007 Suit") (see Exhibit "TKT 2" of Plaintiffs' Affidavit) previously sued the Defendants on the same facts;
2) 2007 Suit had been struck out by the High Court on 18th April 2008 (see Exhibit "TKT 3" of Plaintiffs' Affidavit); and
3) The Plaintiffs' application for reinstatement of 2007 Suit was dismissed by Order of the Court on 7th April 2009 (see Exhibit "TKT 4" of Plaintiffs' Affidavit); and
4) There was no appeal against the Judgement or the Order of the Court instead the Plaintiff started this 2009 Suit on the same facts against the Defendants.
In essence learned counsel for the Defendants is contending that the Plaintiffs are estopped by res judicata from starting this new action by citing the cases of Mokhtar Amin v. Mohamed Moktar Omar , ; Genesis World Sdn. Bhd. v. Mobikom Sdn. Bhd. , and Seruan Gemilang Makmur Sdn. Bhd. v. Badan Perhubungan UMNO Negri Pahang Darul Makmur (via his secretary Dato' Ahmad Tajudin bin Sulaiman) ; [2010] 8 MLJ 57.
Learned counsel for the Plaintiffs concedes that 2007 Suit was struck out but on a procedural and/or technicality of want of prosecution by the absence of counsel at the pre-trial case management without the benefit of a full trial. In the present suit there is the addition of a new defendant who is the Superintendent of Lands & Surveys, Bintulu as the 7th Defendant. (See paragraphs 9 to 12 and Exhibits "BB-6" and "BB-7" of the Affidavit in Opposition.) In other words this case is distinguishable from the three authorities on res judicata cited by learned counsel for the Defendants by the fact that there has been no default on a peremptory order nor was there a trial of the cause of action in the 2007 Suit as it was struck out by procedural and/or technicality through no show of the Plaintiffs' learned counsel.
The issue here for the Court to decide is actu
