which might have been and which were not brought forward, either deliberately or due to
negligence or inadvertence, while another school of thought holds the contrary view that such
Issues which might have been and which were not brought forward as described, though not
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
actually decided by the court, are still covered by the doctrine of res judicata, ie doctrine of
estoppel per rem judicatum.
We are of the opinion that the aforesaid contrary view is to be preferred; it represents for one
thing, a correct even though broader approach to the scope of issue estoppel. It is warranted by
the weight of authorities to be illustrated later. It is completely in accord or resonant with the
rationales behind the doctrine of res judicata, in other words, with the doctrine of estoppel per
rem judicatum. It is particularly important to bear in mind the question of the public policy that
there should be finality in litigation in conjunction with the exploding population; the increasing
sophistication of the populace with the law and with the expanding resources of the courts being
found always one step behind the resulting increase in litigation.”
[21] On the question whether, an estoppel per rem judicatum has to be pleaded, in holding that it
need not, the Supreme Court said:
“Another source of small confusion is the rule that generally an estoppel, of which an estoppel
per rem judicatum is a kind, as the name implies, has to be pleaded. But in Superintendent of
Pudu Prison v Sim Kie Chong [1986] 1 MLJ 494 at p 498, Abdoolcader SCJ held to the effect
that the court has the inherent jurisdiction to dismiss an action by applying the doctrine of res
judicata against a party even if it has not been pleaded. We venture to think the reason for the
ratio is that an estoppel or exclusion of evidence based on a question of public policy, ie in this
case, the question of public policy that there should be finality in litigation, is more vigorous in
excluding evidence and need not be pleaded, unlike an ordinary estoppel which should be
pleaded.”
[22] The application of the principle of issue estoppel as explained in Asia Commercial Finance (M)
Bhd (supra) can be seen in many cases, including the Court of Appeal decision in Dato’ Sivanathan
a/l Shanmugam v Artisan Fokus Sdn Bhd [2016] 3 MLJ 122. The headnote of the case reveals the
following facts. Lembaga Pembangunan Perumahan dan Bandar Sabah (‘LPPB’) owned a piece of
land (‘the said land’). The appellant and one Dato’ Paduka Khairuddin Abu Hassan (‘KAH’)
negotiated with LPPB with a view to securing a joint venture agreement (‘the JV agreement’)
between LPPB and the respondent to develop the said land into a housing project (‘the project’). It
resulted in a shareholders’ agreement (‘the agreement’) entered into by the appellant, KAH, the
respondent, Datuk Hoe Tze Fook (‘HTF’) and Lee Fuei Siong (‘LFS’) both of whom were the
shareholders and directors of the respondent. The agreement was, expressed to be conditional upon
execution of the JV agreement between LPPB and the respondent. The agreement also contained a
stipulation that if the JV agreement was not executed in the stipulated manner, both the appellant and
KAH were required to refund to the respondent the refundable deposit forthwith. Following the
execution of the agreement, HTF paid Cosmotine Sdn Bhd (‘Cosmotine’) a sum of RM2.3m being the
refundable deposit. In return, Cosmotine deposited its CIMB Bank Bhd cheque in the same amount
(‘the said cheque’) with HTF. However, the appellant and KAH failed to secure the JV agreement
between LPPB and the respondent and HTF thereupon presented the said cheque to the bank for
payment but was dishonoured. The respondent demanded the refund of the sum of RM2.3m from the
appellant and KAH. The appellant and KAH failed to refund the amount. HTF thus commenced an
action against Cosmotine (‘the HTF suit’) for the recovery of the sum of RM2.3m and entered
summary judgment against Cosmotine. The respondent meanwhile, commenced the present action
against the appellant and KAH for the recovery of the sum of RM2.3m and obtained summary
judgment against KAH. With regard to the action against the appellant, the respondent applied for a
MALAYSIAN JUDGMENTS
Page: 9 of 39
question of law to be determined pursuant to O 14A of the Rules of Court 2012. The questions
proposed were in the following manner: whether in view of the HTF suit, the respondent’s cause of
action against the appellant was prohibited by the principle of estoppel, res judicata and doctrine of
merger of cause of action. The learned judge answered the questions posed in the negative and
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