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Rosinah bte Nasry & 1 other vs Salahudin bin Hasanah & 49 others [2011] MYSSHC 475 (16 December 2011)

Jurisdiction: MALAYSIA

IN THE HIGH COURT IN SABAH & SARAWAK AT KOTA KINABALU

Parties: ROSINAH BTE NASRY … 1st PLAINTIFF ASAINAR @ HASSNAR B HJ

M. P EBRAHIM … 2nd PLAINTIFF

SALAHUDIN HASANAH … 1st DEFENDANT SALAMAH BTE ZAILANI … 2nd DEFENDANT MARIAM BTE PINGKOI … 3rd DEFENDANT RUKRA @ MARIAH BINTI ASMAT… 4th DEFENDANT AMASUADA BINTI HASSAN … 5th DEFENDANT BAHARUN BIN BANSAAN … 6th DEFENDANT EJAH BINTI SANGGI … 7th DEFENDANT MAIMUNAH BTE BAHARUN … 8th DEFENDANT SABRANI BTE GUMOK … 9th DEFENDANT MD NOR BIN ZAMAN … 10th DEFENDANT ALIAH BTE PINGKOI … 11th DEFENDANT AMIMAH BTE MUALIP … 12th DEFENDANT ROHANI BTE SABRAN … 13th DEFENDANT AJIJAH BTE MIANG … 14th DEFENDANT WING BIN TAHA … 15th DEFENDANT MASDAN BIN ABDUL … 16th DEFENDANT HASSAN BIN BANSAAN … 17th DEFENDANT DAMSING BIN SABRAN … 18th DEFENDANT ABDUL BIN MANJA … 19th DEFENDANT ALI OMAR BIN HASSAN … 20th DEFENDANT

ARSAH BIN TAHA … 21th DEFENDANT ABDUL RAHIM BIN MATO … 22th DEFENDANT ABDUL RAHMAN BIN PINGKOI … 23th DEFENDANT MANSOR BIN MUHAMAD … 24th DEFENDANT AG SALLEH BIN MASBAT … 25th DEFENDANT APLEE BIN ABDUL RAHIM … 26th DEFENDANT DALKIAH BTE PANGKATAN … 27th DEFENDANT NORSIAH BTE MASBAT … 28th DEFENDANT SERIAH BTE ANGGARUN … 29th DEFENDANT KIMRANAH BTE JAPAL … 30th DEFENDANT FATIMAH BTE ASBAT … 31st DEFENDANT SAADAH BTE HASSAN … 32nd DEFENDANT MOHD DIA BTE ABDURAHIM … 33rd DEFENDANT AMIR HAMZA BIN PANGKATAN… 34th DEFENDANT SAIDAIN BIN KARIGI … 35th DEFENDANT RUBAMAH BINTI ARDIH … 36th DEFENDANT BANGSAANG BIN TAMAK … 37th DEFENDANT EBNU BIN ITIN … 38th DEFENDANT TERUNAH BINTI AYAD … 39th DEFENDANT ANDAT BTE TAMAH … 40th DEFENDANT RUKIAH BTE AYAD … 41st DEFENDANT EDOI BTE TAMAK … 42nd DEFENDANT ITIM BIN KARIM … 43rd DEFENDANT ANING BINTI TAMAK … 44th DEFENDANT OTOH BIN MOHAMAD … 45th DEFENDANT

KWAN NGEN WAH

(NRIC H0266233) … 46th DEFENDANT

KWAN NGEN CHUNG

(NRIC H0469507) … 47th DEFENDANT

KWANTAS LAND

DEVELOPMENT SDN BHD …48th DEFENDANT (COMPANY NO. 604799-U)

ASSISTANT COLLECTOR OF LAND REVENUE DISTRICT OF

KINABATANGAN … 49th DEFENDANT

HONG KONG AND SHANGHAI BANKING COPERATION

LIMITED … 50th DEFENDANT

File Number: S21-61- 2010

Issues: (1) Whether the Plaintiffs’ claim is barred by items

73 and 74 of Section 3 or otherwise under the

Limitation Ordinance (Sabah Cap. 72).

(2) Whether the exclusive jurisdiction to determine and declare whether the 46th and 47th Defendants are Natives of Sabah lies with the Native Courts of Sabah under Section 3(2) of the Interpretation (Definition of Native) Ordinance, Cap. 64.

Hearing Dates: 20th – 21st September 2011

3rd – 4th November 2011

Date of Decision: 16th December 2011

Judge: HONOURABLE JUSTICE DAVID WONG DAK WAH

Representation: For Plaintiff: Mr. Ansari Abdullah Messrs Ansari & Co. Kota Kinabalu, Sabah.

For 1st Defendant: Mr. Rizwandean Bukhari M. Borhan

Messrs Rahim Abdullah & Co. Kota Kinabalu, Sabah.

For 2nd, 38th and Mr. Jonathan Yasin

39th Defendant: Messrs John-Lynn Advocates

Kota Kinabalu, Sabah.

For 46th, 47th and Mr. Frederick Chang

48th Defendant: Messrs Chang & Kamaruddin

Lahad Datu, Sabah.

For 50th Defendant: Mr. Christopher Chang

Messrs Lind Willie Wong & Chin

Kota Kinabalu, Sabah.

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JUDGMENT

Proceeding:

3

The plaintiffs’ claims in short are these:
1. That the 2nd plaintiff is the beneficial and legal owner of 44 parcels of

6 land as from July 1976;

2. The Power of Attorney given to the 1st defendant by the land
9 applicants (2nd to 45th defendants) of the 44 parcels of lands (PA) and
Substitute PA, all consequential acts made or purported to be made or
carried out in pursuant to the PA and Substitute PA, the acceptance

12 and registration of the draft titles, the transfer of ownership and

sublease of the said Land, are null and void and of no legal effect; and
15 3. That the 46th and 47th Defendants are not natives of the State of
Sabah.

Background Facts:

18

The dispute between the parties here concerns the ownership of 44 parcels of lands situated at Latangon in the district of Kinabatangan (the Lands). The 2nd
21 to 45th defendants were the successful applicants of the Lands and they had
purportedly given a full power of attorney to the 1st defendant to deal with them
including disposing of the same. The 46th to 47th defendants were approached by the 1st defendant acting as the authorized agent or attorney of the land
3 applicants as to whether they wish to purchase the Lands. The 46th and 47th
defendants decided and agreed to buy the Lands in 1995 pursuant to a set of
power of attorney (PA), substitution under a power of attorney (Substitute PA)
6 and a sale and purchase agreement (SNP) all dated 06.09.1995. The Lands were transferred to the 46th and 47th defendants between 17.09.1996 and 07.03.1997. On 13.12.2000 the Lands were subleased to the 48th defendant.
9 As for the plaintiffs, their case is that between 1978 and 1985 the land applicants had sold the Lands to the 2nd plaintiff at the price of RM2,000 per lot (15 acres per lot) and the land applicants had received full payment of the
12 purchase price. The plaintiffs also claim that the PA was never signed by the land applicants and the Substitute PA and SNP were never signed by 1st defendant. In essence they are alleging that those documents are forged.
15 After the oral evidence of the 2nd plaintiff, the 46th, 47th and 48th defendants took
out enclosure 132 pursuant to Order 14A requesting the Court to determine the
following two issues:

18 (1) Whether the exclusive jurisdiction to determine and declare whether the 46th and 47th Defendants are Natives of Sabah lies with the Native Courts of Sabah under Section 3(2) of the

21 Interpretation (Definition of Native) Ordinance, Cap. 64.

(2) Whether the Plaintiffs’ claim is barred by items 73 and 74 of

3 Section 3 or otherwise under the Limitation Ordinance (Sabah

Cap. 72)?

6 After hearing submissions from counsel I allow the application of the 46th , 47th
and 48th defendants and directed counsel to submit on the two issues.
Having heard those submissions, I now give my grounds of decision in respect

9 of the two issues.

Issue 1:

Whether the exclusive jurisdiction to determine and declare whether the

12 46th and 47th Defendants are Natives of Sabah lies with the Native Courts of Sabah under Section 3(2) of the Interpretation (Definition of Native) Ordinance, Cap. 64?

15

Mr Ansari, to his credit, in his oral submission conceded that, in view of the recent Court of Appeal decision in Hon Chung Lip v Kwan Ngen Wah & 6

18 others – case appeal number 02-99-2009, the jurisdiction in so far as native

certificates are concerned belongs exclusively to the Native Court and not this
Court. In my view the intention of the legislature is clear and this can be seen in

21 the following piece of legislation:-

Section 3 of the Interpretation (Definition of Native) Ordinance (Cap 64):

3 “3(1) Any person claiming to be a native may apply to a Native Court established under the Native Court Enactment 1992 and having jurisdiction in the area in which such person resides to declare:-

6 (a) that such person is recognized by native law and custom as the parent or child, as the case maybe, of any person; or

(b) that such a person is a member of a native community, has so lived during any state

9 period, and while so living has borne a good character; or

(c) that such person is a member of a people named in paragraphs (c) or (d) of subsection (1) of section (2); or

12 (d) that a parent of such person is or was a member of a people named in paragraph (c) of subsection (1) of section (2) and living, or if deceased is buried or reputed to be buried in Sabah.

15 (2) Subject to provision of subsection (3) of this section, any Native Court referred to in subsection (1) to whom an application is properly made under such subsection shall have exclusive jurisdiction to entertain and determine any such application and to

18 make such declaration as the case requires.

(3)Any declaration of any Native Court made in the exercise of the jurisdiction conferred upon it by subsection (2) shall be subject to review and scrutiny by, and

21 appeal to the Native Court.

(4) The final decision on any application made under subsection (1) shall be conclusive evidence for all purposes in respect of matter or matters to which it relates.

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Native Courts Enactment, 1992, Part IV Revision and Appeal

The conduct of the 2nd plaintiff in filing an application at the Native Court of
15 Appeal, Kota Kinabalu seeking for a review of the native certificates of the 46th and 47th Defendants on 30.08.2007 speaks for itself. As pointed out by counsel for the 46th and 47th defendants, their native certificates issued by the Native

18 Court is conclusive evidence that they are natives of Sabah in this proceeding.

Case law on this issue is also crystal clear. In fact more than a decade ago, the
present Chief Judge of Sabah and Sarawak, then as a High Court Judge Richard

21 Malanjum J in Hassnar B. MP Ebrahim @ Asainar v Tapah Bin Utong & Ors

[Suit No S-22-07 of 1999] made this observation on the challenge of the status
of a native certificate:

24 ‘With respect I do not think that this Court is the proper forum to check on the matter.

To do so would entail the hearing of evidence pertaining to the issuance of the certificate. This present suit was not tailored in that direction. Moreover I am of the

27 view that section 114(e) of the Evidence Act 1950 is applicable.’

That observation, in my view, should and has remained the correct approach in

3 dealing with challenges to the validity of native certificates.

Native Certificates’ rights – common law or statutory rights:

6 There is another reason for my decision and it relates to the nature of the rights

in a Native certificate issued by the Native Court.

It is my view that rights flowing from Native Certificates are purely statutory

9 rights as their existence stems from a statute and not from common law like

native customary rights. That statute is the Interpretation (Definition of Native)

Ordinance (Cap 64). The significance of this distinction can be gathered from

12 the case of Pyx Granite Co Ltd v Ministry of Housing and Local Government

and Others (1960) AC 260. In that case, the plaintiff company had claimed for

a declaration that the development which they proposed to carry out on their

15 freehold and licensed land was authorized by a certain Act and hence two

ministerial decisions in 1947 and 1953 refusing them permission to develop

were of no effect. The defendant/local council raised a preliminary objection

18 that in view of the existence of provisions in the 1947 Act providing that if any

person proposes to carry out any development of its land and wishes to have it

determined, it may apply to the local planning authority to have it determined,

21 the plaintiff is barred from seeking remedy in Court. The House of Lords in

dealing with the preliminary objection discuss the significance of a common

law right and a statutory right. Lord Jenkins puts it as thus:

3 “Where a statute creates a new right which has no existence apart from the statute creating it, and the statute creating the right at the same time prescribes a particular method of enforcing it, then, in the words of Lord Watson in Barraclough v Brown, ‘the

6 right and the remedy are given uno flatu, and the one cannot be disassociated from the other’. As Lord Herschell put it in the same case, the party asserting the right cannot

‘claim to recover by virtue of the statute, and at the same time insist upon doing so by

9 means other than those prescribed by the statute which alone confers the right’….. if A has a right founded entirely upon particular statute to recover a sum of money from B, and the statute goes to provide that the sum in question may be recovered in

12 proceedings of a particular kind, then it is wholly reasonable to impute to the legislature an intention that the sum in question, recoverable solely by virtue of the statute, should be recoverable in proceedings of the kind provided by the statute and

15 not otherwise.”

The principle distilled from the law Lords is this. If the right sought to be

18 enforced is a right created by statute (statutory right) and when there is a

statutory remedy provided for its enforcement, the court’s original jurisdiction

is ousted. If however the right sought to be enforced is a common law right and

21 even though there is a statutory remedy provided for its enforcement, the court’s

original jurisdiction remains intact.

Reverting to rights emanating from a Native Certificate and as held by me

24 earlier, these rights not existing at common law owed their existence to a statute

and as such where there is a statutory remedy for their enforcement in the

Native Court, this court’s jurisdiction is ousted.

This interpretation by me is nothing more or less than a mere implementation of

the intention of Parliament. To restate the obvious, Courts only apply the law

3 and when there is clear intention of Parliament as there is here, I must apply the

law.

Accordingly I order that no evidence on the status of the native certificates of
6 the 46th and 47th defendants is to be adduced in this trial.

Issue 2:

Whether the Plaintiffs’ claim is barred by items 73 and 74 of Section 3 or

9 otherwise under the Limitation Ordinance (Sabah Cap. 72)?

In my view, it is undisputed that the plaintiffs’ claim is premised on the
12 allegation of forgery in that the PA, Substitute PA and SNP were not signed by the land applicants and/or the 1st defendant. It is also undisputed that the time starts to run from the date when the alleged forgeries become known to the

15 plaintiffs and the period of limitation is 3 years, the applicable items are Items

73 and 74 of the Sabah Limitation Ordinance (Cap. 72) which state as
follows:-

18 Item 73 To cancel or set aside an instrument not otherwise provided for, time (3 years), beings to run when the facts entitling the plaintiff to have the instrument cancelled or set aside becomes known to him.

Item 74 To declare the forgery of an instrument issued or registered, time (3 years),

begins to run when the issue or registration becomes known to the plaintiff.

3 Counsel for the 46th, 47th and 48th defendants premised their submission on the police report made on 30 November 2006 by the 1st defendant. For clarity, I produce the report herein:

It is undisputed that the police report was drafted by the 2nd plaintiff. Hence it is
the submission of the 46th, 47th and 48th defendants that the plaintiffs had

3 knowledge of the alleged forgeries on 30.11.2006 or latest on 30.8.2007. The

former date is the date of the police report while the latter date refers to an
affidavit sworn by the 2nd plaintiff on 30.8.2007 and for completeness I
6 reproduce paragraph 3 and 4 of the same (at page 51 and 52 of exhibit B) as translated into English by counsel for the 46th 47th and 48th defendants:-

3. My investigations show that Kwan Ngen Chung and Kwan Ngen Wah, the

9 accused in this action, had created, prepared thereof and used one Power of Attorney that they had forged with the intention to cheat me as well as the original land owners.

PARTICULARS OF FRAUD

12 Kwan Ngen Chung together with Kwan Ngen Wah, without the knowledge of several land applicants which have been approved to have the ownership of a piece of land situated at Latangon, in the district of Kinabatangan, have prepared, did and or

15 created a fake power of attorney by using the name of the said land applicants

(Landowners).

The content of the fake power of attorney is that the landowners have appointed and

18 authorized one of my family members namely SALAHUDIN BIN HASANAH to be the representative of the Landowners to sell their approved land.

Further, Kwan Ngen Chung and Kwan Ngen Wah have prepared, did and or created

21 another fake power of attorney where SALAHUDIN BIN HASANAH has appointed both of them to be the representative of the landowners to sell and transfer their approved land.

24 After the fraud was exposed and detected in November 2006, Ebnu Bin Etin as the representative of the Landowners and SALAHUDIN BIN HASANAH, the two victims of deceit by Kwan Ngen Chung and Kwan Ngen Wah claiming that their names had been

27 misused without their knowledge had lodged a police report at the Sandakan Police

Station so that criminal prosecution is taken against Kwan Ngen Chung and Kwan

Ngen Wah for forging their signatures.

A copy of the police report regarding the use of the forged power of attorney by Mr

Ebnu Bin Etin and Mr Salahudin Bin Hasana are hereby exhibited marked as “HAS-1”

3 and “HAS-2”.

4. My investigations reveal that Kwan Ngen Chung and Kwan Ngen Wah have successfully transferred my land under the terms of Native Title (NT) using the Native

6 Certificates purportedly issued by the Native Court at Kota Kinabalu via orders to Suit

No. 243/79 (B) and (D).

Photocopy of the native certificate purportedly issued to the names Kwan Ngen Chung

9 and Kwan Ngen Wah by the Native Court at Kota Kinabalu are hereby exhibited marked as “HAS-3” and “HAS-4”.

12 Relying on those two dates, it is submitted that the plaintiffs’ claim is time

barred because the Writ in this suit was filed on 23.9.2010 which is outside the
three year limitation period whether one takes the knowledge date to be either

15 30.11.2006 or 30.8.2007.

Those pivotal dates are not disputed by the plaintiffs as can be seen from their
opening speech and pleadings. What is disputed and contended by the plaintiffs

18 is twofold and they are these. First when the police report was made, it was a

mere suspicion by the plaintiffs or in the words of counsel, knowledge of the
alleged forgeries had not been perfected. Second there has been concealment by
21 the 46th and 47th defendants of the alleged forgeries and it was only recently that
these alleged forgeries had been discovered. As such the limitation period did
not start on the two dates mentioned above.

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Concealment of the forgeries:

With respect, I agree with counsel for the 46th, 47th and 48th defendants that this

3 allegation was never pleaded and should be ignored by the Court. Be that as it

may, I shall deal with it. Firstly let me say that there is no evidence of any
active concealment by the 46th and 47th defendants, in fact I can’t see how there

6 could be any concealment where dealings of the Lands are public records of the

Lands and Surveys Department. In any event, if the plaintiffs had a problem
with the Lands and Surveys Department, they could have sought remedy from

9 the Courts. Let me say here that from his very own testimony in Court the 2nd

plaintiff is a well educated person with a wealth of knowledge of politics
deriving from his active participation in politics during his university days and

12 his foray into state politics as a member of local political party. His knowledge

and friendship with many ministers of yesteryears also gave him intimate
knowledge of the workings of government departments. Hence with that wealth

15 of knowledge, this Court can safely presume he is fully aware of his rights. In

any event, in the case of Abdul Manaf Ahmad v. Mohd Kamil Datuk Hj Mohd

Kassim [2009] 2 CLJ 121, the Court through the judgment of Gopal Sri Ram

18 JCA (as he then was) held that there is a duty to exercise due diligence in

ascertaining the alleged breach in the context of the limitation statute. This is
how his Lordship puts it:

21

“The plaintiff’s argument that he was unaware of the identity of the person who had defamed him and could not therefore institute proceedings within the 3 limitation

3 period is equally without merit. Upon his arrest he could have applied for and obtained from the police a copy of the first information report in the case. From it he could have quite readily ascertained that it was the defendant who had libelled him. The instant

6 plaintiff did not therefore act with reasonable diligence in ascertaining the defendant’s identity within the prescribed limitation period. It may be added that, absent fraud on the part of the defendant, it is no answer to a plea of limitation for a plaintiff to say that

9 he was unaware that he had a cause of action during the relevant period prescribed by the statute. See, Ardikappa v. Kadappa [1916] 36 IC 418; Lalta Singh v. Muthur Upadhia ILR 6 Luck 374. That principle, in my judgment, applies

12 with full force to the facts of the present instance.”

There is no reason that a man of the 2nd plaintiff’s stature through due diligence
15 could not have uncovered whatever forgeries which the 46th and 47th defendants
were concealing.
For reasons stated above, I reject this contention.

18 Knowledge of alleged forgeries not perfected:

This contention to say the least is novel. But be that as it may, I will examine it
in the context of the pleadings and evidence tendered in Court thus far. I start
21 off with the police report dated 30.11.2006 which by his admission was drafted by the 2nd plaintiff. Even at a casual glance of the report, it is full in details. It talks of the PA by the land applicants to the 1st defendant, the substitute PA and
24 the allegation that the signatures therein are forged. More importantly, the report refers to the 46th and 47th defendants by their names and refers to ‘surat
kuasa palsu bertarikh 16.9.1995’ (translated false power of attorney). With
respect, what is stated in the police report is more than ‘suspicion’. What is

3 contained in the police report is replicated in paragraph 3 and 4 of the 2nd

plaintiff on 30.8.2007 which has been reproduced earlier. There is also the
second police report made by the 38th defendant on 22.6.2007 [page 55 of
6 Exhibit B] also alleging that the he had never donated any power of attorney to the 1st Defendant and that the 46th and 47th Defendants as the mastermind behind the alleged forgeries. The 2nd plaintiff had also requested for a collector’s

9 caveat on Lands as evidenced in his solicitors’ letter dated 9.7.2007 (p.30-33

Exhibit B).
Finally I refer to the plaintiffs’ own pleading at page 60 of the bundle of
12 pleading which is reply to the defence of the 46th – 48th defendants and this is
what it states:

“10.2 that Police report were only made on the 30th day of November 2006 because

15 the transfer of the said land through utilization of forged documents was only discovered in November 2006. Prior to this action an application to the Native Court of Appeal has been filed on the 30th day of August 2007. The allegation that this

18 action was time barred as it was filed on the 23rd of November 2009 is

misconceived.”(emphasis added)

21 This paragraph speaks volume and it is this. This is a clear admission by the

plaintiffs that they knew of the forgery in November 2006. It is also a clear admission that they knew the importance of the filing of the suit within the
limitation period. What has happened is that the plaintiffs did not file this suit
on the 23.11.2009 as contained in paragraph 10.2 but had filed only on

3 23.9.2010.

With what I have set out above, it would be repugnant to common sense to
sustain the contention that the knowledge of the alleged forgeries has not been

6 perfected.

Accordingly the plaintiffs’ claims are statute barred.
In view of my conclusion and pursuant to Section 3 of the Sabah Limitation
9 Ordinance, the plaintiffs’ claim against the 46th to 48th defendants are dismissed
with costs in the sum of RM70,000.00.

12 (DAVID WONG DAK WAH) Judge

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Notice: This copy of the Court's Reasons for Judgment is subject to formal

27 revision.

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