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Lee Ngan Fong & 3 Lagi V Gan Bo Tan & 3 Lagi - D-02(IM)-1183-2010 [2011] MYCA 69 (6 May 2011)

DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN)

RAYUAN SIVIL NO: D-02(IM)-1183-2010

ANTARA (1) LEE NGAN FONG
(2) LEE NGAN ENG (3) LEE GUN HWA
(4) WANG TENG TONG ------ PERAYU-PERAYU
DAN
(1) GAN BO TAN
(2) LEE TYNG TYNG (3) LEE YEN YEN
(4) LEE CHIN LOONG ------ RESPONDEN-RESPONDEN

Dalam perkara mengenai Guaman No: 22-69-2008

Di Mahkamah Tinggi Malaya di Kota Bharu
Dalam Perkara Harta Pesaka LEE NGAN FATT (“Simati”) dalam Mahkamah Tinggi Kota Bharu, Probet No: 32-18-2007
Antara
(1) Lim Ah Chai (P) (2) Lee Ngan Fong (3) Lee Ngan Eng (4) Lee Gun Hwa
(5) Wang Teng Tong ------ Plaintif-Plaintif
Dan

CORAM:

(1) ABDUL MALIK BIN ISHAK, JCA (2) KANG HWEE GEE, JCA

(3) AZHAR HJ MA’AH, JCA

ABDUL MALIK BIN ISHAK, JCA DELIVERING THE JUDGMENT OF THE COURT

Introduction

[1] The High Court allowed the respondents’ application to strike out the claim by the appellants on two separate grounds, viz, that it disclosed no reasonable cause of action (Order 18 rule 19(1)(a) of the Rules of the High Court 1980 (“RHC”)) or that it was an abuse of the process of the Court (Order 18 rule 19(1)(d) of the RHC).

[2] We must categorically state, at the outset, that the process of evaluation of the evidence by the High Court must withstand scrutiny of the Appellate Court and that the Appellate Court will not intervene and interfere unless the High Court was shown to be plainly wrong in arriving at its conclusion (Wee Lian Construction Sdn Bhd v. Ingersoll-Jati Malaysia Sdn Bhd [2010] 4 CLJ 203, CA). We have perused through the grounds of judgment of the High Court and it is our judgment that the High Court did not err in law and/or in fact in dismissing the appellants’ claim against the respondents pursuant to Order 18 rule 19(1)(a) or (d) of of the RHC.

Facts of the case

[3] Lee Ngan Fatt was a businessman in Kota Bharu and he died on

9.5.2007 (“the deceased”) and left a will (“the Will”). The Will was
executed on 3.4.2007 as seen at pages 161 to 167 of the appeal record at
Bahagian B-C.

[4] All the four respondents, namely, Gan Bo Tan, Lee Tyng Tyng, Lee Yen Yen and Lee Chin Loong are the beneficiaries under the Will. The first respondent, Gan Bo Tan, is the deceased’s wife while the other three respondents are the deceased’s children.

[5] The first respondent is the sole executrix of the estate of the deceased pursuant to and under the Will. She successfully applied for a Grant of Probate vis-a-vis the Will vide Kota Bharu Probate number 32-18-

2007. And the Grant of Probate appointing the first respondent as the executrix of the estate of the deceased was issued on 11.12.2007 as reflected at page 169 of the appeal record at Bahagian B-C. It must be emphasised that the Grant of Probate was issued strictly in accordance with the provisions of the Will of the deceased.

[6] The first to the third appellants, namely, Lee Ngan Fong, Lee Ngan Eng and Lee Gun Hwa are the deceased’s siblings. The fourth appellant by the name of Wang Teng Tong is the deceased’s friend.

The prayers sought for by the appellants

[7] Before the High Court, the main reliefs sought by the appellants were for a declaration that the Will is null and void and that the deceased died intestate. The appellants also sought for declarations in regard to

the existence of the “Lee Family Custom” and trusts associated with this “Custom” (“the purported trusts”) and sought for orders giving effect to the purported trusts.

[8] To support the appellants’ allegations, the appellants averred that the Will was forged and that the deceased did not have testamentary capacity. All these allegations were categorically denied by the respondents.

Analysis

[9] It cannot be denied that before the High Court, the appellants vehemently argued that the Will was improperly executed and that it ought to be declared null and void.

[10] The appellants even argued that the Will was a forgery and that the deceased did not have testamentary capacity when the Will was executed. The appellants then made reference to the purported trusts. The fourth appellant further argued that the deceased apparently told him verbally that the deceased will leave some shares in a company – Midaco Sdn Bhd, to the fourth appellant upon the death of the deceased.

[11] It is crystal clear that the deceased’s siblings – the first to the third appellants, as well as the deceased’s friend – the fourth appellant, are not beneficiaries under the Will.

[12] The learned judge of the High Court was right when he held that the appellants did not have the standing or sufficient interest to challenge the Will. The locus classicus on the law of locus standi in Malaysia is the Supreme Court case of Government of Malaysia v. Lim Kit Siang, United Engineers (M) Berhad v. Lim Kit Siang [1988] 2 MLJ

12 S.C. (“UEM”). By way of a majority of three to two, the Supreme Court adopted a restricted approach in deciding whether or not a particular person has the standing or locus standi to initiate public law litigation. Salleh Abas L.P. at page 20 had this to say about locus standi:

“Every legal system has a built-in mechanism to protect its judicial process from abuse by busybodies, cranks and other mischief- makers by insisting that a plaintiff should have a special interest in the proceedings which he institutes. This special interest is a nexus between him and the party against whom he brings his complaints to court and is known as locus standi.”

[13] Abdul Hamid Omar CJ (Malaya) in the UEM’s case, concurring with Salleh Abas L.P., aptly said at page 27:

“This appeal raises an issue of considerable importance. The central issue revolves round the question of ‘locus standi’ of a private person seeking a declaration and an injunction in a case for the enforcement of a public right purportedly for public interest.

‘Locus standi’ is generally understood to mean the right of a party to appear and be heard by a tribunal. A litigant is said to have locus standi, in effect standing to sue in a court of law, if that court recognizes his or her ability to institute and maintain proceedings before it. The question of standing is thus separate and distinct from questions of the substantive merits and the legal capacity of the plaintiff. It follows, therefore, that a litigant may lack standing to bring a case which would succeed if brought by the right litigant.

Put in a nutshell, the law of standing to sue has two fundamental rules. First, apart from certain cases in which standing to sue is in the discretion of the court, the plaintiff must possess an interest in the issues raised in the proceedings. Second, where the private plaintiff relies on an interest in the enforcement of a public right and not of a private right, standing will be denied unless the Attorney- General consents to a relator action, or the plaintiff can demonstrate some special interest beyond that possessed by the public generally.”

[14] In any legal system, the obvious effect of the locus standi rule is to exclude some people from obtaining the assistance of the courts. Sir John Donaldson MR in an extra judicial remark in “The Corralling of the Decision Makers” [1988] 22 U of BCL Rev 107, 113 aptly said:

“Without it every crack pot would be free to occupy the time of the courts and to disrupt the administrative process, which irksome though they are, remain essential to the smooth running of any complex civilised country.”

[15] The same rationale was adopted by Kaplan J in Au Shui- Yuen, Alick v Sir David Ford, Deputy to the Governor and others [1991] 2 HKLR 79, 101.

[16] The House of Lords in Gouriet And Others v. H.M. Attorney- General, Gouriet v. Post Office Engineering Union, Gouriet v. Union of Post Office Workers, Gouriet v. Union of Post Office Workers And Others [1978] AC 435, 482 held that the doctrine of standing enabled “the court to prevent abuse by busy bodies, cranks or other mischief makers.”

[17] In the context of locus standi, the plaintiff in Abdul Razak

Ahmad v Majlis Bandaraya Johor Bahru [1995] 4 CLJ 339, 347; [1995]

2 AMR 1174, 1186; [1995] 2 MLJ 287, 298 was described by the Dato’ Bandar “as a busybody” and by the learned Judge “as a trouble shooter, a maverick of a sort out to stir trouble.”

[18] We categorically say that the appellants will not benefit under the deceased’s estate even if the Will is declared null and void. The deceased was survived by his spouse, his three children and his mother by the name of Lim Ah Chai (the first plaintiff before the High Court). We now invoke section 6(1)(g) of the Distribution Act 1958 (Act 300), and it reads as follows:

“Succession to intestate estates

6. (1) After the commencement of this Act, if any person shall die intestate as to any property to which he is beneficially entitled for an interest which does not cease on his death, such property or the proceeds thereof after payment thereout of the expenses of due administration shall, subject to the provisions of section 4, be distributed in the manner or be held on the trusts mentioned in this section, namely –

(g) if an intestate dies leaving a spouse, issue and parent or parents, the surviving spouse shall be entitled to one- quarter of the estate, the issue shall be entitled to one-half of the estate and the parent or parents the remaining one- quarter.”

[19] And what this amounts to is this. That even if the Will is declared null and void, the appellants will not benefit and stand to lose and, consequently, the appellants have no standing or interest to determine the

question of whether the Will was properly executed or otherwise. Of course, the appellants may have had some sufficient standing or locus standi to maintain this action if the appellants were beneficiaries of an intestate estate – in a situation where the deceased died intestate, or if the appellants were seeking a finding or orders from the court that the appellants were the beneficiaries to an intestate estate. But, unfortunately, this was not the case before us.
[20] On the facts of the present appeal, the deceased’s three siblings – referring to the first to the third appellants, would have benefitted if the deceased had died intestate and left no spouse, issue, parent or parents, then section 6(1)(i) of the Distribution Act 1958 (Act 300) would come into play and be of assistance to the deceased’s three siblings. That section 6(1)(i) of the Distribution Act 1958 (Act 300) reads as follows:

“(i) if an intestate dies leaving no spouse, issue, parent or parents, the whole of the estate of the intestate shall be held on trusts for the following persons living at the death of the intestate and in the following order and manner, namely:

Firstly, on the trusts set out in section 7 for the brothers and sisters of the intestate in equal shares; but if no person takes an absolutely vested interest under such trusts, then

Secondly, for the grandparents of the intestate, and if more than one survive the intestate in equal shares absolutely; but if there are no grandparents surviving, then

Thirdly, on the trusts set out in section 7 for the uncles and aunts of the intestate in equal shares; but if no person takes an absolutely vested interest under such trusts, then

Fourthly, for the great grandparents of the intestate and if more than one survive the intestate in equal shares absolutely; but if there are no such great grandparents surviving, then

Fifthly, on the trusts set out in section 7 for the great grand uncles and great grand aunts of the intestate in equal shares.”

[21] In our judgment, the deceased’s three siblings stood on a weak ground. We do not mince words when we say that they do not even have any claim as dependants of the deceased’s estate.

[22] As far as the fourth appellant – Wang Teng Tong was concerned, he as the friend of the deceased would not have benefitted even if the deceased had died intestate and was not survived by any of the respondents. With respect, the fourth appellant was mere excess baggage.

[23] In our judgment, since the appellants will not benefit even if the Will is declared null and void, they do not have any standing to challenge the Will.

[24] We must make it clear that in our view the question of locus standi goes to the jurisdiction of the court and the High Court had rightly ruled that the appellants had no standing in law to pursue the action. Without locus standi, no court can confer jurisdiction on the appellants.

[25] It is now ideal to refer to the case of O’Brien v Seagrave and another [2007] 3 All ER 633. In that case, Seagrave died in 2005. The second defendant was his former wife and the first defendant was her son,

Seagrave’s stepson. The claimant had lived with Seagrave for some 12 years before his death. The defendants produced a Will and obtained a grant of probate. The beneficiaries under the Will were the first defendant and his infant children. The beneficiary under his intestacy would have been Seagrave’s brother, who was well provided for. The claimant had a potential claim for provision under the Inheritance (Provision for Family and Dependants) Act 1975 and her claim would have been more valuable on the intestacy of Seagrave. She issued proceedings seeking a declaration that the Will was invalid, that the deceased had died intestate, and for revocation of the Will on the grounds that it had been forged by the first defendant or obtained by undue influence. Under CPR 57.7(1) the claim form in a probate action had to contain a statement of the nature of the “interest of the claimant ..... in the estate”. The defendants successfully argued before the master that the claimant’s right to bring a claim under the 1975 Act was not an interest sufficient to bring a probate claim. Her claim was struck out and she appealed. It was held that a potential claim under the 1975 Act could be an “interest ..... in the estate” within CPR 57.7. In the instant case, the claimant had a clear financial interest in the outcome of the dispute even though judgment in her favour would not, of itself, produce an immediate financial result. Moreover, if her action could not proceed, the judge considering her claim under the 1975

Act might well invoke the jurisdiction under the Supreme Court Act 1981, under which, where it appeared to the court that a grant either ought not to have been made or contained an error, it could call in the grant and revoke it, if satisfied that it would be revoked at the instance of a party interested. Accordingly, the claimant had a sufficient interest to permit her to proceed as a claimant under CPR Pt 57. The appeal was allowed.

[26] By parity of reasoning, the appellants here who have no interest in the deceased’s estate such as a statutory right to claim as a dependant of the deceased, do not have sufficient standing to maintain this probate action.

[27] In our judgment, the appellants inclusion as parties in this action is to say the least premature. We say that any action for any orders or declarations in their favour ought to be brought against the administrator of the estate in the event the Will is set aside, if at all. We also say that the allegations of the existence of a purported Lee Family Custom and other trusts for the benefit of the appellants are not relevant to this action. Even if the High Court were to set aside the Will, we say that the appellants do not have any immediate claim whatsoever over the estate of the deceased and the deceased’s assets will be distributed according to the provisions of the Distribution Act 1958 (Act 300) or in accordance with an Order of the

Court pursuant to any action against the administrator of the estate of the deceased, if at all.

[28] It is our judgment that even if the deceased’s three siblings have a claim in respect of the alleged Lee Family Custom, such a claim may be instituted against the administrator of the deceased’s estate for that portion of the property which does not fall under the deceased’s estate and not an action against the beneficiaries of the deceased’s estate in respect of which the deceased’s three siblings do not have any claim.

[29] The conclusion is predictable. We categorically say that the appellants’ inclusion as plaintiffs before the High Court vide Civil Suit No:

22-69-2008 is misconceived and any action brought by them to recognise the purported trusts ought to be brought against an administrator of the deceased’s estate and that also in the event the High Court declares the Will to be null and void.

[30] Having perused through the grounds of judgment of the learned Judge of the High Court, it is undeniable that he had considered all that needed to be considered and he had reached a sound finding of fact and law in that the appellants have no locus standi to challenge the Will or seek any right over the deceased’s estate. The learned Judge of the High Court also found that the appellants have no reasonable cause of action

against the respondents and that the appellants’ claim was an abuse of the process of the Court.

[31] Lest we be accused of an oversight, there was a preliminary objection by the appellants that was raised before the High Court and also before us. It pertained to the argument that the respondents having filed an unconditional appearance should be deemed in law to have waived any irregularity in regard to the writ and the statement of claim filed by the appellants before the High Court. The learned Judge of the High Court dismissed the preliminary objection and we agreed wholeheartedly with it.

[32] It must be borne in mind that an unconditional appearance does not preclude the respondents from advancing an application under Order 18 rule 19 of the RHC bearing in mind that there is nothing in the RHC that provides either explicitly or impliedly to that effect. In fact Order

18 rule 19 of the RHC expressly provides that such an application may be made “at any stage of the proceedings”. The respondents’ application under Order 18 rule 19 of the RHC does not attack the writ. Rather what is under siege is the statement of claim of the appellants. That being the case, the filing of a conditional appearance or an unconditional appearance has no relevance in the context of an application under Order 18 rule 19 of the RHC.

[33] In Alor Janggus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd & Ors [1995] 1 MLJ 241, the Supreme Court with a strong coram of Jemuri Serjan CJ (Borneo), Edgar Joseph Jr and Eusoff Chin SCJJ and through Jemuri Serjan CJ (Borneo) at page 258 held that the defendants by filing an unconditional appearance, had deprived themselves of the right to invoke Order 18 rule 19 of the RHC. It was a decision of the Apex Court in Malaysia and all the Courts in the country are bound to dutifully follow by virtue of the doctrine of stare decisis. It was followed by Pet Far Eastern (M) Sdn Bhd v Tay Young Huat & Ors [1999] 5 MLJ

558, HC; Brickwood Consolidated Sdn Bhd v Kenneth Teh Ah Kiam & Anor [2000] 4 AMR 4853, HC; Anchorage Mall Sdn Bhd v Irama Team (M) Sdn Bhd & Anor [2001] 2 MLJ 520 and Lim Seak Huat v. Malayan United Realty Sdn Bhd [1997] 5 CLJ 336, HC.

[34] The latin maxim stare decisis et non quieta movere literally means “to stand by the decision, and not to disturb the settled manners i.e. to stick with what has been decided or the like cases should be decided alike”. To ignore the doctrine of stare decisis would put Judges of the Courts below “in an embarrassing position, as driving them to take sides” (per Lord Hailsham of St. Marylebone L.C. in Cassel

& Co. Ltd. V. Broome And Another [1972] AC 1027, at page 1054, HL).

The House of Lords in The London Street Tramways Company, Limited

v. The London County Council [1898] AC 375 held that its decision binds the Courts below. It further held that it was bound by its own previous decision in the interest of finality and certainty of the law. It also held that if its previous decision conflicts with another of its own decision or when the previous decision was made per incuriam, then the correction of such an error was dependent on the legislative process.

[35] The English Court of Appeal in Young v. Bristol Aeroplane Company, Limited [1944] 1 KB 718 held that the House of Lords decision shall bind the Court of Appeal. That the Court of Appeal is bound by its own earlier decisions except in three situations, namely:

(a) that the Court of Appeal is entitled and bound to decide which of the two conflicting decisions of its own it will follow;

(b) that the Court of Appeal is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords; and

(c) that the Court of Appeal is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.

[36] Some diehards would say that adherence to precedent must be the rule rather than the exception so that litigants will have faith in the even-handed administration of justice. It is appropriate to say that stare decisis is the fundamental principle on which judicial making process is

supposed to hinge on. Others still speak reverently of the need to respect precedent.

[37] Abdul Malik Ishak J (now JCA) in Pengurusan Danaharta

Nasional Berhad v Yong Wan Hoi & Anor [2007] 6 MLJ 709, at page

744 aptly said:

“...... although the lower courts are bound in theory by the superior or higher court precedents, in practice judges may sometimes attempt to evade precedents, by distinguishing them on spurious grounds. It is, however, advisable to follow the doctrine of stare decisis because it is a wise policy. It is important that the applicable law be settled. There must be certainty in the law.”

[38] Over the years Alor Janggus lost its lustre notwithstanding the fact that it was a decision of our Apex Court – the Supreme Court. Bright and intelligent Judges said that Alor Janggus decision on that point was merely an obiter dicta – as opinion given incidentally. And that such an opinion cannot be considered as authoritative nor would they be received as such. But the importance of the obiter dicta in Alor Janggus spring to life and is commensurate with the reputation of the Judge that delivers it. Here, the solid reputation of Jemuri Serjan CJ (Borneo) cannot be doubted.

[39] Be that as it may, attempts at distinguishing the facts in Alor Janggus have been made in order to depart from the obiter dicta of the learned Chief Judge of Borneo (previously styled as the Chief Justice of Borneo). Thus, it was emphasised that whether or not the respondents

could file an application under Order 18 rule 19 of the RHC was not an issue before the Supreme Court in Alor Janggus. And that being the case, it was safe to depart from that obiter dicta. It would be ideal to refer to the following authorities:

(a) N Carrupaiya v MBf Property Services Sdn Bhd & Anor

[2000] 4 MLJ 389;

(b) William Singam a/l Raja Singam (suing as the Public Officer of Pertubuhan Persaudaraan Kristian Thaveethin Kudaram, Ipoh Perak) v Meeriam Rosaline a/p Edward Paul & Ors [2009] 7 MLJ 888;

(c) Trengganu Forest Products Sdn Bhd v Cosco Container

Lines & Anor [2007] 5 MLJ 486;

(d) Norwest Holdings Sdn Bhd v Muhibbah Engineering (M) Bhd

[2004] 4 MLJ 481; and

(e) Akitek Bersatu v Sempurna Cekap Sdn Bhd [2004] 7 MLJ 45.

[40] Again, we do not mince words when we say that it is plain and obvious that the appellants do not have any or sufficient standing to mount their action by seeking a declaration that the Will is null and void (Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, SC). Even the existence of the purported Lee Family Custom does not mean that the appellants have an interest in the

deceased’s estate. In our judgment, the appellants cannot commence a probate action to set aside a Will where they will not benefit under the deceased’s estate even if the Will is set aside.

[41] For the varied reasons alluded to above, we dismissed the appellants’ appeal with costs of RM10,000.00. We affirmed the decision of the learned Judge of the High Court. The deposit should rightly go to the respondents as part of the costs.

[42] My learned brother Azhar Hj Ma’ah, JCA has expressed his concurrence with this judgment. The other panel member, Kang Hwee Gee, JCA has since retired.

6.5.2011 Dato’ Abdul Malik bin Ishak
Judge, Court of Appeal,
Malaysia

Counsel

Cases referred to in this judgment:

(1) Wee Lian Construction Sdn Bhd v. Ingersoll-Jati Malaysia Sdn

Bhd [2010] 4 CLJ 203, CA.

(2) Government of Malaysia v Lim Kit Siang, United Engineers (M) Berhad v Lim Kit Siang [1988] 2 MLJ 12 S.C.

(3) “The Corralling of the Decision Makers” [1988] 22 U of BCL Rev

107, 113.

(4) Au Shui-Yuen, Alick v Sir David Ford, Deputy to the Governor and others [1991] 2 HKLR 79, 101.

(5) Gouriet And Others v. H.M. Attorney-General, Gouriet v. Post Office Engineering Union, Gouriet v. Union of Post Office Workers, Gouriet v. Union of Post Office Workers And Others [1978] AC 435, 482, HL.

(6) Abdul Razak Ahmad v Majlis Bandaraya Johor Bahru [1995] 4

CLJ 339, 347; [1995] 2 AMR 1174, 1186; [1995] 2 MLJ 287, 298. (7) O’Brien v Seagrave and another [2007] 3 All ER 633.

(8) Alor Janggus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn

Bhd & Ors [1995] 1 MLJ 241, SC.

(9) Pet Far Eastern (M) Sdn Bhd v Tay Young Huat & Ors [1999] 5

MLJ 558, HC.

(10) Brickwood Consolidated Sdn Bhd v Kenneth Teh Ah Kiam & Anor [2000] 4 AMR 4853, HC.

(11) Anchorage Mall Sdn Bhd v Irama Team (M) Sdn Bhd & Anor

[2001] 2 MLJ 520.

(12) Lim Seak Huat v Malayan United Realty Sdn Bhd [1997] 5 CLJ

336, HC.

(13) Cassel & Co Ltd v Broome & Anor [1972] AC 1027, at page 1054. (14) The London Tramways Company Limited v London County

Council [1898] AC 375, HL.

(15) Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718, HL.

(16) Pengurusan Danaharta Nasional Berhad v Yong Wan Hoi & Anor

[2007] 6 MLJ 709, 744.

(17) N Carrupaiya v MBf Property Services Sdn Bhd & Anor [2000] 4

MLJ 389.

(18) William Singam a/l Raja Singam (suing as the Public Officer of Pertubuhan Persaudaraan Kristian Thaveethin Kudaram, Ipoh Perak) v Meeriam Rosaline a/p Edward Paul & Ors [2009] 7 MLJ

888.

(19) Trengganu Forest Products Sdn Bhd v Cosco Container Lines & Anor [2007] 5 MLJ 486.

(20) Norwest Holdings Sdn Bhd v Muhibbah Engineering (M) Bhd

[2004] 4 MLJ 481.

(21) Akitek Bersatu v Sempurna Cekap Sdn Bhd [2004] 7 MLJ 45. (22) Bandar Builder Sdn Bhd & Ors v United Malayan Banking

Corporation Bhd [1993] 3 MLJ 36, SC.

Context