HASAN JC:

This is an application by the defendant underO 18 r 19Rules of High Court 1980 for an order that the plaintiff's action be dismissed. This application is supported by the affidavit of Tan Sri Datuk Paduka (Dr) Ting Pek Khing affirmed on 5 December 1998. The plaintiff is opposing the defendant'sapplication and he has filed an affidavit in opposition which was affirmed on 6 January 1999.

In this action the plaintiff is claiming for the refund and return of the sum of RM8.5m from the defendant and interest on the amount from 12 December1995 and costs. The plaintiff claims that the said amount was paid to the defendant by him between 4 August 1991 and 23 September 1991 in reliance on the promise and representation given by the defendant that the defendant could procure to appoint the plaintiffas the main logging contractor for a timber concession area for a fee of RM8.5m and the defendant's promise and undertaking to refund the amount in the event that the defendant failed or was unable to do so. The plaintiff states that the defendant informedhim subsequently that the defendant was unable to carry out his promise and representation. Therefore by a letter dated 6 December 1995 the plaintiff formally requested the defendant to refund and return the said amount of RM8.5m but the defendant failedand refused to do so.

In his submission the learned counsel for the defendant raised three main issues which are as follows:

(1)multiplicity of actions;

(2)privilege documents; and

(3)action is barred by the Sarawak Limitation Ordinance.

Multiplicity of actions

It was submitted by the learned counsel for the defendant that there is multiplicity of actions made by the plaintiff as the subject matter in the present suit is also the very same subject matter in another proceeding known as suit No 22-18-96 (MR)and as such the plaintiff's action should be dismissed because it is an abuse of the process of the court. In support of that, the learned counsel cited the case of Lai Kim Loi v Dato Lai Fook Kim & Anor [1989] 2 MLJ 290Ng Yik Seng & Anor v Perwira Habib Bank (M) Bhd [1980] 2 MLJ 83[1999] 3 MLJ 402 at 406

The learned counsel for the plaintiff on the other hand submitted that there is no multiplicity of suits as the plaintiff in suit No 22-18-96 (MR) is a different party.

The case of Lai Kim Loi v Dato Lai Fook Kim & Anor and Ng Yik Seng & Anor v Perwira Habib Bank Malaysia Bhd clearly show that the court is given the discretion to strike out cases on the ground of duplication of issues andrelief sought. However that discretion must be exercised correctly so as not to produce manifest injustice to the parties. In order to do that the court must give due consideration to the peculiar facts of each case. In the present case the plaintiff has statedin his affidavit that he is claiming for judgment for RM8.5m in his personal capacity whereas in Suit No 22-18-96 (MR) the plaintiff is lnterhill Enterprise Sdn Bhd, a separate legal entity. In Suit No 22-18-96 (MR) the defendant had taken the stand that thesaid sum of RM8.5m was advanced by the plaintiff personally and not by the said Interhill Enterprise Sdn Bhd. As such the plaintiff has to bring this action personally so that this court can finally and effectually resolve the matter in issue as to who is entitledto claim the said sum so that justice is done. Since this claim is filed against the defendant as a result of the admission made by the defendant that the money was advanced by the plaintiff personally, I do not think the plaintiff, by filing this action, hasabused the process of the court. It is to be noted that in Lai Kim Loi's case it was the same person who presented the petition for the winding-up of the second respondent company and who filed a writ of summons and statementof claim against the first respondent. Under the circumstances the petitioner was supposed to make his election as to which case he had to proceed with. As he had not made his election the court in that case had