Hutang dan Akibatnya

Berikut satu artikel berkaitan HUTANG yang ditulis pada tahun 1997 oleh Hj Abdul Hamid bin Hj. Mustapha, Penolong Pegawai Pembangunan Sosial, Lembaga Kemajuan Kelantan Selatan:

Res Judicata

Here are some digest from cases relating to RES JUDICATA:

IN THE FEDERAL COURT OF MALAYSIA AT PUTRAJAYA

(APPELLATE JURISDICTION)

CIVIL APPEAL NO.: 02(i)-8-03/2012(J)

Joseph Bin Paulus Lantip & Ors v. Unilever Plc

Res Judicata

What is meant by res judicata was well explained in Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn. Bhd. [1995] 3 CLJ 783, where Peh Swee Chin FCJ in delivering the judgment of the Court stated: “What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicature. When a matter between two parties has been adjudicated by a Court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that it is in the public interest that there should be finality in litigation -interest rei publicae ut sit finis litium . It is only just that no one ought to be vexed twice for the same cause of action -nemo debet bis vexari

pro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy.” See also the case of Kandiah Peter A/L Kandiah v. Public Bank Bhd. [1993]  4 CLJ 332.

Thus, for the doctrine of res judicata to apply, the same issue must have been raised and decided in an earlier proceeding or action in which the parties are represented. And for that reason, it is not open for the same issue to be litigated afresh between the same parties. This doctrine is based on the public policy that there must be finality and conclusiveness in judicial decisions and the right of the individual from being vexed by multiplicity of suits at the instance of an opponent. In Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another 1960 AIR S.C. 941, the Indian Supreme Court stated the principle as follows:  “(7) The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter –whether on a question of fact or a question of law –has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again.”

In Henderson v. Henderson [1843] 3 Hare 100, 67 ER 313, Vigram VC expressed the view that “The plea of res judicata applies not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligent, might have brought forward at the time.” This statement came to be known as the rule in Henderson v. Henderson.

In Hartecon JV Sdn Bhd & Anor v. Hartela Contractors Ltd [1996] 2 MLJ 57, Gopal Sri Ram JCA (later FCJ) observed that:

“We cannot over emphasize the proposition that once a judge makes a ruling, substantive or procedural, final or interlocutory, it must be adhered to and may not be reopened willy-nilly.”

The parties are bound by the rulings of the court under the principle of res judicata. It is also important to observe that a decision given by a court at one stage on a particular issue is binding on it at a later stage in the same or subsequent suit.

As observed above, for res judicata to apply, the issue in the second or subsequent application must be the same with the issue decided earlier by the court.

IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA

APPELLATE JURISDICTION

CIVIL APPEAL NO: W-02(IM)(NCVC)(W)-1400-08/2014

Residence Hotels And Resorts Sdn Bhd v.

Seri Pacific Corporation Sdn Bhd

Whether res judicata/estoppel applicable:

a) res judicata is a substantive rule of law. It means a decision on the “merits” which disposes once and for all of the matters decided and the same becomes the truth between the parties, so that, except on appeal or other exceptional circumstances such as fraud, it cannot be re-litigated between persons bound by the judgment. The doctrine of res judicata has developed over the years to extend to issue estoppel as well, the requirements of which are (i) that the same question has been decided; (ii) that the judicial decision which is said to create the estoppel was final; and

(iii) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised. We are also mindful of the fact that it must be shown that the earlier judgment necessarily and with precision determined the point in issues to constitute res judicata;

See:

i) Hoystead v Taxation Commissioner [1926] AC 155

ii) Carl-Zeiss-Stiftung v Rayner & Keeler Ltd & Ors [1966] 2 All ER 536 @ p.565

iii) Tong Lee Hwa & Anor v Lee Yoke San [1976] MLJ 24 (FC)

iv) Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 (SC)

b) the parties cannot raise a second time in the same suit issues that have already been determined earlier expressly or by necessary implication. Additionally, where res judicata is not strictly established or where estoppel res judicatum is not made out but nevertheless, the circumstances are such as to render any re-agitation of the questions formerly adjudicated upon, a scandal and an abuse, the court would not hesitate to dismiss the action;

See:

i) Superintendent of Pudu Prison & Ors v Sim Kie Chon [1986] 1 MLJ 494 (SC)

ii) Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57 (COA)