[2019] 1 LNS 484
This is a civil action filed by the Plaintiff to recover monies due and payable under an Islamic financing facility granted to the 1st Defendant. The Plaintiff’s application for summary judgment was allowed by this court. The Plaintiff subsequently filed an application to strike out the Defendants’ counterclaim and the said application was also allowed. In the Striking Out Application, the Defendants raised again the same issues relating to its Counterclaim and submit that they have a reasonable cause of action against the Plaintiff. In this respect the court was not able to agree with the Defendants’ contentions that the issues relating to their Counterclaim is totally different from the claim made by the Plaintiff and the res judicata is not applicable. The relief sought in the Counterclaim may be different from the relief sought by the Plaintiff but the Counterclaim is premised on the same issues which in turn is premised on the same facts and evidence adduced before this court at the hearing of the Summary Judgment Application. As the same issues had been ventilated and adjudged, res judicata applies and the Defendants cannot reopen and reargue the same issues which had been determined previously to prevent duplicity of proceedings and abuse of the process of the court. Moreover the facts as pleaded in the Defendants’ pleadings shows there is no reasonable cause of action against the Plaintiff. A new ground forwarded by the Defendants for objecting the Striking Out Application is the fresh evidence in the form of Forensic Accounting Report. As such, the Defendants cannot be allowed to produce and rely on the said report for purpose of resisting the Striking Out Application. To allow the Defendants to do so would prejudice the Plaintiffs as they would not be in the position to properly challenge the Forensic Accounting Report. Even though the application to adduce the said report as fresh evidence is not before this court, this court cannot afford to ignore the complete silence on the part of the Defendants who failed to explain in their affidavits that the fresh evidence could not have been obtained with reasonable diligence at the hearing of the Summary Judgment Application.Â