S Nantha Balan JCA:

Introduction

[1] This is an appeal against the decision of the learned Judicial Commissioner ("the JC") (as she then was) dated 18 February 2019 to strike out Kota Kinabalu High Court Suit No: BKI-22NCvC-123/12-2018 ("Suit 123") pursuant to O 18 rr 19(1)(a) and/or (b) and/or (d) and/or O 92 r 4 of the Rules of 2012 (" ROC ").

[2] The appellant (plaintiff) is Frankey Leong Pit Fui ("Frankey"). Frankey filed Suit 123 on 12 December 2018 in his capacity as the administrator of the estate of Louis Leong Kui Yung ("the Deceased"). Frankey is the son of the Deceased. According to Frankey, he became the lawful administrator of the estate of the Deceased pursuant to a letter of administration described as Jadual Tiga which was issued on 18 October 2018. The sole defendant in Suit 123 is Foong Da Realty Sdn Bhd ("FDR").

[3] There was a previous litigation involving Frankey and FDR via Kota Kinabalu High Court Suit No: BKI-22-92/8-2013 ("Suit 92"). The dispute which precipitated Suit 92 is over a parcel of land situated in the district of Penampang, Sabah. The land was the subject of three agreements between its owners and FDR (see: para 17 below).

[4] The Deceased was a co-owner of the land. FDR and a co-palintiff filed Suit 92 and claimed that the owners and the administrators or successors-in-title of the estate of the Deceased had breached the three agreements. Essentially, in Suit 92, FDR sought declarations to assert its beneficial ownership of the whole of the land and for various consequential orders, including an order for transfer of the land to FDR.

[5] The parties in Suit 92 are as follows.

[6] FDR was the 1st plaintiff.

[7] The 2nd plaintiff was March Advantage Sdn Bhd ("March Advantage").

[8] The 1st defendant was Albert Leong (sued as the Administrator of the Estate of the Deceased and in his personal capacity) ("Albert"). Albert is one of the sons of the Deceased. After the death of the Deceased, Albert took out a letter of administration at the Penampang Native Court (Jadual Tiga) to administer the estate. Albert discharged himself as administrator and his brother, Frankey took over as administrator under a fresh Jadual Tiga issued on 22 December2011.

[9] The 2nd defendant was Teo Ann Su @ Christopher Teo.

[10] Frankey was the 3rd defendant in Suit 92. He was sued as the administrator of the estate of the Deceased and in his personal capacity as well. Frankey did not file any Counterclaim in Suit 92.

[11] At that time Frankey relied on the Jadual Tiga granted on 22 December 2011 by the Penampang Native Court. In Suit 92 Frankey held himself out as an administrator of the estate of the Deceased.

[12] Jeff Leong ("Jeff") was the 4th defendant. Jeff filed a Counterclaim in Suit 92. Jeff is a nephew of the Deceased.

[13] The Registrar of Titles, Department of Lands & Surveys, Sabah was the 5th defendant. They were a nominal defendant and agreed to abide by the High Court's final judgment.

[14] The trial in respect of Suit 92 took almost 3 years to complete. The trial started on 21 October 2013. The final trial date was 7 October 2016. The decision of the learned Judge in Suit 92 was handed down on 10 October 2016. The decision of the High Court in Suit 92 is reported as Foong Da Realty Sdn Bhd & Anor v. Albert Leong & 4 Ors [2018] 8 BLR 545 HC. The decision was in favour of FDR and March Advantage.

[15] Frankey appealed to the Court of appeal via Civil Appeal No: S-02(W)-2046-11/2016. Jeff also appealed to the Court of Appeal via Civil appeal No: S-02(W)-2141-11/2016. Jeff withdrew his appeal on 25 July 2017.

[16] The Court of Appeal dismissed Frankey's appeal on 28 July 2017. Frankey did not take the matter up to the Federal Court.

[17] By a Notice of Application dated 21 December 2018 (Enclosure 6), FDR applied to strike out Suit 123 and sought for an order that the Statement of Claim dated 12 December 2018 ("the SOC") and the action be struck out pursuant to O 18 rr 19(1)(a) and/or (b) and/or (d) and/or O 92