JUDGMENT

RULING

This is an application by the 1^st to 6^th Defendants ("Defendants") to strike out the Plaintiffs' claim under O 18 rule 19 and 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 1^st to 6^th 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 14^th June 2010 ("Defendants' Affidavit");

3. Encl. 45 - Affidavit in Opposition affirmed by Baru Bian on 28^th June 2009 ("Affidavit in Opposition");

4. Encl. 51 - Supplementary Affidavit in Opposition affirmed by Baru Bian on 28^th June 2010 ("2^nd Affidavit in Opposition"); and

5. Encl. Affidavit in Reply of Ting Khai Tung affirmed on 25^th 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 18^th 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 7^th 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 ; [2001] 4 MLJ 329; [2001] 4 CLJ 489; [2001] 4 AMR 4612 ; ; [2003] 4 MLJ 263; [2003] 7 CLJ 100; [2003] 6 AMR 67 and ; [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 7^th 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 actually was there facts in the making of the order and in the order of the 2007 Suit that may bar this action by res judicata or is there an estoppel per rem judicatum or cause of action estoppel arisen from the striking out of the 2007 Suit.

The order striking out 2007 Suit by t