THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 217 ENGLISH

Suwaya Bte Buang and 2 Others v Yuh @ Abdul Salleh Bin Pompulu
Suit Number: Civil Appeal No. S-02(IM)(NCVC)-76-01/2017 

Litigation & court procedure – Application to strike out a claim under Order 18 rule 19(1)(b) and (d) and/or Order 92 rule 4 of the Rules of Court 2012 – Law of striking out – Whether there were triable issues

JUDGMENT

INTRODUCTION

[1] This is an appeal by the 1st, 2nd and 3rd Defendants (or “1st, 2nd and 3rd Appellants” or “the Appellants”) against the whole of the decision of the learned Judicial Commissioner (“JC”) in the High Court in Sabah and Sarawak (“High Court”) in dismissing the Appellants’ application to strike out the claim of the Plaintiff (or “Respondent”) under O.18 r. 19(1)(b) and (d) and/or O. 92 r. 4 of the Rules of Court 2012 (“ROC”).

BACKGROUND FACTS

[2] The Respondent and 32 others were the registered owners (collectively referred to as “the Land Owners”) of 33 parcels of lands in the district of Sandakan (collectively referred to as “the Lands”) [see the 5 sample Land Titles to the Lands at pg 89-113 of the Record of Appeal (“ROA”)].

[3] The Lands were transferred to the 1st Appellant on or about 18.8.1997 (see the 5 sample Land Titles to the Lands at pg 89-113 of the ROA).

[4] The 1st Appellant had subleased the Lands to the 2nd Appellant on or about 1.10.1999 (see the 5 sample Land Titles to the Lands at pg 89-113 of the ROA).

[5] The Plaintiff filed the action in the High Court on 9.6.2016 seeking to, inter alia, set aside the transfers and subleases of the Lands on the ground that they were forged/ fraudulent (see the Writ of Summons dated 9.6.2016 at pg 11-26 of the ROA).

[6] The Appellants filed a Defence denying the claim, explaining the transfers and subleases and had, inter alia, raised the defence of limitation (see the Defence dated 11.7.2016 at pg 27-31 of the ROA).

[7] The Plaintiff filed a Reply (see the Reply dated 25.7.2016 at pg 32-34 of the ROA).

THE RESPONDENT’S CASE

[8] The Respondent’s pleaded case is that in 1981, the Respondent, together with 32 other individuals named in the Statement of Claim (“SOC”) had applied for State Land situated at the District of Sekong, Sandakan, Sabah with a total area of approximately 500 acres and was granted with the Native titles.

[9] By a Power of Attorney (“PA”) dated 4.4.1995, all the Land Owners mentioned in the SOC had unanimously appointed the Respondent to be their lawful attorney.

[10] On or around early year 2016, the Respondent had visited the Sandakan Land Office for the purpose of collection of the original grant titles (“original titles”) in respect of the Lands. However, upon perusing the record of the Sandakan Land Office and photocopy of the original titles, to his intense surprise, the Respondent discovered the following facts:

(1) the Lands were unlawfully and/or fraudulently transferred in the name of the 1st Appellant and thereafter unlawfully sub-leased and/or charged by the 1st Appellant to the 2nd Appellant;

(2) the following two PAs were allegedly executed by the Respondent namely:

(a) Substitution Under PA allegedly from the Respondent to the 2nd Appellant dated 25.9.1995 (“1st fraudulent PA”) alleging that the several Land Owners had agreed to sell the Lands to the 2nd Appellant and that the 2nd Appellant is appointed as the attorney; and

(b) Substitution Under PA allegedly from the Respondent to the 1st Appellant dated 27.12.1996 (“2nd fraudulent PA”) alleging that several Land Owners had agreed to sell the Lands to the 1st Appellant and that the 1st Appellant is appointed as the attorney;

(3) both the 1st fraudulent PA and 2nd fraudulent PA were prepared and witnessed by the same solicitor who had prepared and witnessed the PA dated 4.4.1995 given to the Respondent by the Land Owners;

(4) it was further revealed that the 1st Appellant had collected all the 33 original titles in respect of the Lands in 1997 from the Sandakan Land Office; and

(5) upon collecting the original titles for all the 33 pieces of land, the 1st Appellant had subleased and/or charged the Lands to the 2nd Appellant on 1.10.1999.

[11] Thus, after having knowledge of the unlawful, fraudulent, forged and/or illegal transactions on the Lands (“the alleged fraud”) by the 1st and 2nd Appellants, the Respondent had immediately lodged a police report on 16.3.2016 against both the 1st and 2nd Appellants regarding the alleged fraud, and the 1st fraudulent PA and 2nd fraudulent PA done by the 1st and 2nd Appellants. The Respondent also contended that he did not give any PA to the 1st Appellant and that the thumbprint allegedly placed by the Respondent on the 1st fraudulent PA and 2nd fraudulent PA was in fact forged.

[12] Upon further inquiry, it came to the Respondent’s knowledge that in 2011 a sale and purchase agreement had been entered into between the 1st Appellant and the 3rd Appellant and two other individuals known as Ouh Kim Fah and Chan Wai Chun in respect of the Lands.

[13] It is the Respondent’s case that at all material times, the Respondent had not executed the 1st fraudulent PA and 2nd fraudulent PA. Neither he nor the Land Owners had any knowledge on the 1st fraudulent PA and 2nd fraudulent PA until the time when the Respondent went to the Sandakan Land Office to collect the original titles in early 2016.

[14] It is Respondent’s further case that the Respondent and the Land Owners have no knowledge as to the identity of the 1st and 2nd Appellants, and had not given any consent to transfer and/or sublease or charge the Lands to the 1st and 2nd Appellants respectively. The Respondent pleaded conspiracy being committed among all the Appellants to defraud the Respondent and the Land Owners in respect of the Lands.

[15] The injury to the 33 Land Owners, including the Respondent, who are all natives of Sabah, is still continuing until today. They have been deprived of their rights to the Lands permanently by the acts of the Appellants.

OUR DECISION

[16] The Grounds of Judgment of the learned JC for his decision in dismissing the Appellants’ striking out Application were not made available to us.

[17] However, having perused the Record of Appeal, and after considering the submissions of respective learned counsels, on 17.11.2017 we gave our unanimous decision and dismissed the appeal with costs in the cause. We ordered that the deposit be refunded to the Appellants.

GROUNDS OF DECISION

The law

[18] The law on striking out a Writ of Summons (“Writ”) and SOC is trite. It is only in plain and obvious cases where it can be clearly seen that the claim is on the face of it obviously unsustainable that the Court would allow the claim to be struck out at the interlocutory stage without the necessity for a trial (see Supreme Court decision in Bandar Builder Sdn Bhd & 2 Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7, and Federal Court decision in CC Ng & Brothers Sdn Bhd v Government of State of Pahang [1985] CLJ Rep 45).

The Appellants’ Striking Out Application

[19] The Appellants had applied to strike out the Respondent’s action on the grounds that the Respondent’s action is frivolous or vexatious or is otherwise an abuse of the process of the Court as the action was filed out of time and statute-barred by limitation.

[20] The Appellants submitted that the relevant limitation period is 3 years as set out in s.3 read together with items 73, 74, 75 and 77 of the Schedule to the Limitation Ordinance (Sabah Cap. 72) (“LO”). The said items provide the following limitation period:

(1) Item 73-To cancel or set aside an instrument (limitation of 3 years from the date of knowledge of the facts);

(2) Items 74 and 75-To declare the forgery of an instrument (limitation of 3 years from the date of knowledge); and

(3) Item 77-For any relief on the ground of fraud (limitation of 3 years from the knowledge of the fraud).

[21] The pivotal question is when did the Respondent have knowledge of the alleged forgery or fraudulent acts of the Appellants for the above limitation period of 3 years to run.

[22] The Appellants contended that they had tendered undisputed evidence that the Respondent had knowledge of the alleged forged/ fraudulent transfer and subleases of the Lands as far back as 2006 as can be seen as follows:

(1) The Respondent freely admitted that he and some of the Land Owners had lodged a complaint in respect of the alleged forged/ fraudulent transfers and subleases of the Lands with the Mahkamah Anak Negeri, Sandakan in August 2006 which can be seen in paragraph 12.5 of the Plaintiff’s Affidavit and the Complaint Form dated 29.8.2006 lodged in the Mahkamah Anak Negeri (see pg 48 and 116-117 of the ROA);

(2) A police report, drafted by the Respondent himself, was lodged by the Respondent on 30.8.2006 (see pg 127 of the ROA) where the Respondent stated, inter alia, as follows:

“Saya difahamkan geran-geran tersebut sudah pun ditukar milik kepada Puan Suwaya Binti Buang ... dan seterusnya telah di sublease kepada Syarikat Suara Baru Sdn Bhd ... Ini adalah penyelewengan untuk mengelirukan terhadap saya. Saya akan mengambil tindakan Mahkamah sivil terhadap orang yang tidak bertanggungjawab ...”;

(3) Police reports, which were drafted by the 9 Land Owners themselves, were also lodged by 9 other Land Owners between 14.8.2006 to 19.8.2006 (see pg 118-126 of the ROA) where the 9 Land Owners stated, inter alia, as follows:

“... saya difahamkan geran tanah yang saya miliki itu telah pun ditukar milik kepada Puan Suwaya Binti Buang ... saya difahamkan juga geran tanah yang saya miliki itu telah pun disublease kepada Syarikat Suara Baru Sdn Bhd ... tanpa pengetahuan saya ini adalah satu penipuan terhadap saya oleh Puan Suwaya Binti Buang ... dan saya akan mengambil tindakan polis dengan sewajarnya dan seterusnya saya membuat pembatalan melalui (Mahkamah Sivil) ...” (emphasis added).

(Note: Puan Suwaya Binti Buang and Syarikat Suara Baru Sdn Bhd in the above refer to the 1st and 2nd Appellants respectively).

[23] Notwithstanding the Appellants’ contention that the Respondent had knowledge of the alleged fraud in August 2006, we note from paragraphs 6 and 7 of the SOC that it was only in early 2016 that the Respondent discovered the fact regarding the fraud when the Respondent visited the Sandakan Land Office to collect the original titles of the Lands. After having knowledge of the said unlawful, fraudulent, forged and/or illegal transactions on the Lands by the 1st and 2nd Appellants, the Respondent then immediately lodged a police report on 16.3.2016 on the same.

[24] We agree with the submissions of learned Counsel for the Respondent that there is a serious dispute as to when the limitation period should run. According to the Respondent, when some of the Land Owners and the Respondent lodged a complaint with Mahkamah Anak Negeri, no action was taken by the said Mahkamah and no decision was made. The Respondent alleged that the Appellants’ solicitors had on 8.8.2016 contacted one Hj Amir Bin Hj Ismail (“Hj Amir”) who had efficiently and amazingly responded within 24 hours and supplied all relevant documents for this Application. On 9.8.2016, four days before the date of first mention of the case, Hj Amir had contacted the Respondent and uttered “Apa lagi masalah dengan tanah tu?” and demanded the Respondent to come and meet him at his office, which the Respondent refused to adhere to (see paragraphs 12.6 and 12.7 of the Respondent’s Affidavit in opposition in ROA pg 48 and 49).

[25] In view of the alleged “mystery surrounding this case”, it is in the interest of justice that these issues be determined at a trial by calling all relevant witnesses, including Hj Amir, to determine what actually happened in 2006.

[26] We are therefore of the considered opinion that despite the limitation period of 3 years under s.3, in particular under items 73, 74, 75 and 77 of the Schedule to the LO, the serious disputes on fact and law as to when the statutory limitation period should start running, i.e. whether from 2006 or from 2016, can only be determined at the trial with viva voce evidence (see Court of Appeal decision in CB Land Sdn Bhd v Perunding Hashim & Neh Sdn Bhd [2016] MLJ 230, and Metroplex Holdings Sdn Bhd v Commerce International Merchant Bankers Bhd [2013] MLJU 285).

[27] Furthermore, there is also a triable issue of whether the following s.18 of the LO, and also item 112 of the Schedule to the same LO would apply in this case for the purpose of computing the limitation period:

“Effect of fraud.

18. When any person having a right to institute a suit has by means of fraud been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit-

(a) against the person guilty of the fraud or accessory thereto; or

(b) against any person claiming through him otherwise than in good faith and for a valuable consideration,

shall be computed from the time when the fraud first became known to the person injuriously affected thereby or, in the case of the concealed document, when he first had the means of producing it or compelling its production.”;

“112.

For possession of immovable property or any interest therein not hereby otherwise specially provided for

Twelve years

When the possession of the defendant becomes adverse to the plaintiff.”


[28] If it can be established during the trial that the Respondent and the Land Owners had only discovered the alleged fraud in 2016 when the Respondent went to the Sandakan Land Office to collect the original titles to the Lands and to peruse the records there, then the limitation period of 3 years would run from the time when the alleged fraud first became known to the Respondent and the Land Owners in 2016, in which case, this action filed on 9.6.2016 is not time-barred under the LO.

[29] Moreover, even if the cause of action accrued in 2006 as alleged by the Appellants, it is only upon a trial that the High Court would be able to determine whether, in this action which is also for the recovery of land, the limitation period of 12 years under item 112 of the Schedule to the LO would apply to this action due to possession by the 1st and 2nd Appellants of the Lands which is adverse to the Respondent. Should that be found to be the case, then the Respondent’s action is also not time-barred pursuant to the limitation period of 12 years which is provided under the said item 112 (see High Court decision in Pawa Ajah v Chung Kok Chiang & Anor [2002] 8 CLJ 751, which was referred to by the Court of Appeal in Boustead Plantations Berhad & Anor v Kadam Embuyang & Ors & Another Appeal [2014] 1 LNS 697).

[30] In view of the serious triable issues of whether this action was filed within or outside the various applicable time limits as set out in the LO, and whether there is fraud perpetrated by the Appellants against the Respondent in respect of the Lands, we are of the firm opinion that this action should not be struck out and summarily disposed of. As such, it should proceed to trial.

[31] Based on the above considerations, we are satisfied that the Respondent’s claim is one which is not obviously unsustainable for it to be struck out under O. 18 r. 19(1) (b) and (d) and/or O. 92 r. 4 of the ROC. We therefore ordered accordingly.

Dated: 1 June 2018

Sgd

YEOH WEE SIAM
Judge
Court of Appeal Malaysia
Putrajaya

COUNSEL

For the Appellants: Roderic Fernandez, Chung Kai Lun with him, Messrs Shelley Yap

For the Respondent: Hamida Binti Ambo, Messrs Ambo & Co

Legislation referred to:

Rules of Court 2012, Order 18 Rule 19(1)(b), Order 18 Rule 19(1)(d), Order 92 Rule 4

Limitation Ordinance (Sabah Cap. 72), Schedule Items 73, 74, 75, 77, 112; Sections 3, 18

 

Judgments referred to:

Bandar Builder Sdn Bhd & 2 Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7

Boustead Plantations Berhad & Anor v Kadam Embuyang & Ors & Another Appeal [2014] 1 LNS 697

CB Land Sdn Bhd v Perunding Hashim & Neh Sdn Bhd [2016] MLJ 230

CC Ng & Brothers Sdn Bhd v Government of State of Pahang [1985] CLJ Rep 45

Metroplex Holdings Sdn Bhd v Commerce International Merchant Bankers Bhd [2013] MLJU 285

Pawa Ajah v Chung Kok Chiang & Anor [2002] 8 CLJ 751

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