Gopal Sri Ram JCA:

This appeal is directed against the order of the High Court dismissing the appellant's application to strike out the respondent's originating summons.

Although this case has a very long history, the issue at stake in the present proceedings is a narrow one. The gist of the respondent's complaint against the appellant is that it took a charge over his land promising to advance him a general overdraft facility of up to RM1.4 million but failed to do so. On that basis, the respondent claimed the following relief in his originating summons:

(1) A declaration that upon the true construction of the Memorandum of Charge dated 9th August, 1965 (and registered as Memorial No. 92666 in the Central Land Registry, Sabah) and made between the Plaintiff as chargor of the one part and the Defendant as chargee of the other part:

(a) the Defendant had covenanted to grant the Plaintiff general overdraft facilities up to a maximum amount of M$1,400,000.00;

(b) that the Plaintiff had executed the Charge in consideration of the agreement on the part of the Defendant to grant the Plaintiff the said overdraft facilities;

(c) that the Memorandum of Charge as a Charge on the lands described in the said Memorandum of Charge is effective when the Defendant performs its obligation to grant the Plaintiff the said overdraft of M$1,400,000.00.

(2) A declaration that upon the true construction of the Charge registered as Memorial No. 92666 in the Central Land Registry, Sabah and in the events which have happened the Defendants have failed, refused and/or neglected to grant the Plaintiff; the overdraft facilities of M$1,400,000.00, thereby resulting in a total failure of consideration.

(3) A declaration that upon the true construction of the said Charge registered as Memorial No. 92666 in the Central Land Registry. Sabah, and in the events which have happened, the said Charge is null and void and inoperative

(4) A declaration that the Plaintiff is entitled to the lands comprised in the said Charge registered as memorial 92666 discharged from all claims by the Defendant as Chargee thereof under the Memorandum of Charge.

The appellant then applied to strike out the respondent's claim pursuant to RHC O. 18 r. 19. It relied on several grounds. These included a plea of res judicata and an assertion that the action constituted an abuse of the court's process. As a matter of law, the latter ground is much wider than the former. A party to any proceedings may be unable to establish the requirements of the doctrine of res judicata. Yet, he may succeed in demonstrating that the particular suit or other proceeding or a step taken in a proceeding is an abuse of process and successfully apply to have it struck out on that ground. This was made clear by the Supreme Court in Sim Kie Chon v. Superintendent of Pudu Prison & Ors [1986] 1 CLJ 548; [1986] CLJ (Rep) 256. Abdoolcader SCJ who delivered the judgment of the court said:

There is moreover the inherent jurisdiction of the court in cases where res judicata is not strictly established, and where estoppel per rem judicatam has not been sufficiently pleaded, or made out, but nevertheless the circumstances are such as to render any re-agitation of the questions formally adjudicated upon a scandal and an abuse, the court will not hesitate to dismiss the action, or stay proceedings therein, or strike out the defence thereto, as the case may require. It would suffice in this regard to refer to the judgment of the Privy Council delivered by Lord Wilberforce in Brisbane City Council and Myer Shopping Centres Pty Ltd v. Attorney-General for Queensland [1979] AC 411, 425.

The second defence is one of "res judicata". There has, of course, been no actual decision in litigation between these parties as to the issue involved in the present case, but the appellants invoke this defence in its wider sense, according to which a party may be shut out from raising in a subsequent action an issue which he could, an