Low Hop Bing JCA:

Appeal

[1] On 20 January 2000, the Ipoh High Court allowed the defendant's ("the association's") counterclaim with costs, and ordered the plaintiff ("the member") to deliver to the association vacant possession of the land held under LotNo: 12713 Siputeh Road (which upon subdivision was known as HS(D) Ka 617/74 Lot 191), in the district of Kinta, Tronoh town ("the land").

[2] The member's appeal is against the order for vacant possession made against him by the High Court.

Factual Background

[3] After a full trial, the factual background as found by the High Court may be unfolded below.

[4] The association, Persatuan Chung Loong, was registered under the Societies Act 1961 and is represented by its trustees.

[5] The association has been the owner of the land since May 1950.

[6] On 28 May 1950, the association passed a resolution authorizing the trustees to subdivide and lease the subdivided lots to members, including the member's father, to erect temporary buildings for a period of not more than five years, by paying a small monthly rental. In the 1960s, the member's father erected a temporary building thereon.

[7] In 1985, pursuant to another resolution of the association, solicitors for the association issued a notice to the member offering him an option to purchase the property at a fixed price. The member had never accepted the offer The member was meanwhile in arrears of rental.

[8] In 1986, the association filed Ipoh Magistrate's Court summons No: 82-154-1986 against the member seeking an order for vacant possession by reason of arrears of rental. Paragraph 2 of the association's statement of claim averred that the association as owner of the land had issued a notice to quit dated 28 November 1985 ("the notice") requiring the member to deliver vacant possession on or before 31 December 1985. It was duly served on the member.

[9] Paragraph 4 of the member's defence averred that the notice was bad in law and had no legal effect.

[10] The member's defence was upheld by the learned Magistrate. The association's claim for vacant possession based on the notice was dismissed with costs. There was an appeal which was subsequently withdrawn by the association.

[11] In 1991, the member filed a writ in the Ipoh High Court. His claim was founded on a contract, averring that he had bought the land from the association sometime in 1965 for RM1,000.

[12] Included in the association's defence is a counterclaim against the member, praying for vacant possession., paras 13 and 14 of the association's counterclaim aver that Vide the notice issued to the member, the association demanded vacant possession of the land from the member The notice, which appears at p C86 of the appeal record, is the same notice relied on by the association in the action against the member in the Magistrate's Court.

[13] Paragraph 4 of the member's reply and defence to the association's counterclaim avers to the effect that:-

(1) the notice is bad in law and has no legal effect; and

(2) the association's claim for vacant possession has been raised and decided in the Magistrate's Court action against the member, and so the association is by reason of the doctrine of res judicata estopped from raising it again in the High Court.

res judicata

[14] Learned counsel, Mr KL Choy submitted for the member that, in the High Court and the Magistrate's Court, the association has relied on the same notice to recover vacant possession of the land from the member Since the Magistrate's Court has dismissed the association's claim for vacant possession based on the notice and the association has withdrawn the appeal against that decision, the plea of res judicata applies, citing Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd, [1995] 3 MLJ 189 SC; [1995] 3 CLJ 783; [1995] 3 AMR 2559.

[15] Mr A Iruthaya Raj, learned counsel for the association, disagreed and supported the High Court decision, contending that the principle of res judicata does not apply, as the issues