requirement, section 3(3) of the Sedition Act deems intention to be irrelevant. According to learned
counsel it is on this basis that the respondent contends that section 3(3) of the Sedition Act is
unconstitutional.
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
[17] Hence, learned counsel submitted that the Originating Summons is not vexatious or an abuse of
the court process, nor is it governed by res judicata. On the elements of res judicata, learned counsel
relied on Chua Wee Seng v Fazal Mohamed [1971] 1 MLJ 106, where Sharma J held:
“To constitute a matter res judicata the following conditions must be fulfilled:
1. The matter directly and substantially in issue in the subsequent suit or issue must be the
same matter which was directly and substantially in issue either actually or constructively in
the former suit.
2. The former suit must have been a suit between the same parties or between parties under
whom they or any of them claim.
3. The parties as aforesaid must have litigated under the same title in the former suit.
4. The court which decided the former suit must have been a court competent to try the
subsequent suit or the suit in which such issue is subsequently raised.
5. The matter directly and substantially in issue in the subsequent suit must have been heard
and finally decided by the court in the first suit.”
[18] In this regard, learned counsel argued that except for the fourth condition, the other conditions
for res judicata were not fulfilled.
OUR DECISION
[19] The Latin term “res judicata” literally translated means ‘a matter adjudged’. The full maxim is
res judicata pro veritate accipitur which means ‘a matter adjudged is taken as truth’. In explaining
what is res judicata, in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ
189, the Supreme Court said:
“What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of
creating an estoppel per rem judicatum. 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 litigationinterest rei publicae ut sit finis litium. It is only just that no one ought to be
vexed twice for the same cause of actionnemo 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.
Since a res judicata creates an estoppel per rem judicatum, the doctrine of res judicata is really
the doctrine of estoppel per rem judicatum, the latter being described sometimes in a rather
archaic way as estoppel by record. Since the two doctrines are the same, it is no longer of any
practical importance to say the res judicata is a rule of procedure and that an estoppel per rem
judicatum is that of evidence. Such dichotomy is apt to give rise to confusion.
The starting point ought to be the celebrated passage by Wigram VC in the case of Henderson v
Henderson (1843) 3 Hare 100 at page 115 which is:
MALAYSIAN JUDGMENTS
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The plea of res judicata applies, except in special cases, 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,