1. ) Jahit Bin Rahmat v 1. ) Ng Kim Chooi (BA-23NCvC-22-06/2020)

ANTARA JAHIT BIN RAHMAT

YUSLI BIN ISMAIL (NO. K/P: 681227-10-5023) (Membawa tindakan ini dibawah Seksyen 8 Akta Undang-Undang Sivil 1956, sebagai waris yang sah kepada Nabiba binti Amam (NO. K.P: 390916-10-5424), si mati)

DAN NG KIM CHOOI

MOHAMAD BIN SIDIN (NO. K/P: 541001-06-5167) (Berniaga di bawah nama dan gaya MHS

PENTADBIR TANAH DAERAH KLANG DEFENDAN-DEFENDAN Introduction [1] This is an action by the plaintiffs against the defendants for, what they claim, was the wrongful and illegal partition by the Pentadbir Tanah Daerah Klang (“D4”) of the land held under title Geran Mukim 6048, Lot 2558, Mukim Kapar, 5th Mile Sungei Binjai Road, Daerah Klang, Selangor 01/12/2023 11:40:48 BA-23NCvC-22-06/2020 Kand. 136 Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 2 (the “Original Land”) into two portions held under the following separate titles:

Suratan Hakmilik HS(M) 39940, PT 66484, Mukim Kapar, 5th Mile Sungei Binjai Road, Daerah Klang, Selangor (the “1st Partitioned

(ii) Suratan Hakmilik HS(M) 39941, PT 66485, Mukim Kapar, 5th Mile, Sungei Binjai Road, Daerah Klang, Selangor (the “2nd Partitioned Portion”). [2] The plaintiffs’ case is that the application for the partition of the Original Land was made fraudulently and that the signatures of the first plaintiff (“P1”) and Nabiba bt Amam (“the Deceased”) on the documents relating to the application, including the pre-computation plan and the Borang 9B, were forged. It is an undisputed fact that the Deceased had passed away in 2003 — six years before the application for the partition was made by D2 to D4. [3] The plaintiffs sought a declaration that the partition of the Original Land into the 1st Partitioned Portion and the 2nd Partitioned Portion are null and void. They also sought for injunctions restraining the eviction of the plaintiffs and their extended families from the 2nd Partitioned Portion and the demolition of their homes located on the said 2nd Partitioned Portion. Additionally, they sought for orders that D4 cancel the titles for the 1st Partitioned Portion and the 2nd Partitioned Portion, and for D4 to reissue a new title for the said 2nd Partitioned Portion, where the position of the plaintiffs’ and their extended families’ homes on the 2nd Partitioned Portion remains the same as they were on the title for the Original Land prior to the partition. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 3 [4] After full trial, this Court made findings of fact based on the evidence produced that there were both fraud and forgery in the application for the partition of the Original Land, and that the first defendant (“D1”) and the second defendant (“D2”) were jointly and/or severally involved in the fraud and forgery of the documents in respect of the application for the partition of the Original Land. [5] This Court also found that D2 and D4 were negligent in discharging their respective responsibilities, duties of care and statutory duties in respect of the application for the partition of the Original Land and the issuance of the separate titles for the 1st Partitioned Portion and the 2nd Partitioned Portion. [6] This Court further found that D4, as the district land administrator who has jurisdiction over lands situated in the district of Klang, had caused injury to the plaintiffs by reason of its lackadaisical and arbitrary approach in discharging its statutory duties under the National Land Code 1965 (“NLC”), in the manner that it had processed and approved the application for the partition of the Original Land, and in issuing the separate titles for the 1st Partitioned Portion and the 2nd Partitioned Portion. This Court found that D4 had acted with contumelious disregard for the plaintiffs’ rights. [7] For this reason, this Court awarded exemplary damages in the sum of RM1,000,000.00 against D4 to signify this Court’s disapproval, condemnation, and denunciation of D4’s lackadaisical and arbitrary manner in which it had discharged its statutory duties under the NLC and for its contumelious disregard of the plaintiffs’ rights. [8] The full reasons for my decision are set out in this Judgment. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 4 Material Facts [9] The first plaintiff, Jahit bin Rahmat (“P1”), Nabiba binti Amam (“the Deceased”) and Mohd Mokhtar bin Zakarsi, Mohd Mosly bin Zakarsi, Nasrudin bin Zakarsi, Rihanah binti Zakarsi, Saada binti Zakarsi and Zohdi bin Haji Abdul Manan (the “Other Co-Owners”) were the co-proprietors of the Original Land in the portions listed next to their respective names in the table below. NAME PORTIONS Jahit bin Rahmat “P1” 1/6 Nabiba binti Amam “The Deceased” 1/12 Mohd Mokhtar bin Zakarsi “The Other Co-Owners” 1/10 Mohd Mosly bin Zakarsi 1/10 Nasrudin bin Zakarsi 1/10 Rihanah binti Zakarsi 1/10 Saada binti Zakarsi 1/10 Zohdi bin Haji Abdul Manan 1/4 [10] P1, the Deceased and their extended families have lived in houses built on the Original Land since 1965. [11] The second plaintiff, Yusli bin Ismail (“P2”) is the natural-born son and the legal heir of the Deceased. The Deceased had passed away on 14.06.2003. [12] The second defendant, Mohammad bin Sidin (“D2”) is a licensed land surveyor trading under the name and style of MHS Survey Consultant (Registration No: 002105460-H) (“MHS”). Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 5 [13] The third defendant, Majlis Perbandaran Klang (“D3”) is the city council under the Local Government Act 1976 (Act 171) (“LGA 1976”). It is the local authority for the area where the Original Land is situated under LGA 1976. It is also the local planning authority for the said area pursuant to section 5 of the Town and Country Planning Act 1976 (Act 172) (“TCPA 1976”). [14] D4 is the district land administrator with jurisdiction over the district of Klang where the Original Land is situated. It is empowered under the NLC to approve applications to partition by proprietors of alienated land. [15] On 17.09.2009, MHS submitted 17 copies of pre-computation plan (pelan pra hitungan) (Ruj: MHS/GMS/0965-PH(01)) dated 25.10.2009 (“the impugned plan)(exhibit “P1”) to D3 for approval for purposes of an application under sections 140 to 144 of the NLC for the partition of the Original Land into two separate portions to be held under separate titles. [16] D3 approved the impugned plan and registered it as a partition plan (pelan pecah bahagian) Majlis bil. MPK/KU/PBHG/26/2009. It returned 12 copies of the impugned plan to D2 under the cover of its letter dated 30.10.2009. [17] On 12.02.2010, D2 applied to D4 to partition the Original Land. Under the cover of its letter dated 12.02.2010 (exhibit “P2”), D2 submitted, among others:

12 copies of the impugned plan — purportedly signed by P1 and the Deceased; Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 6

3 copies of Borang 9B dated 10.03.2010 — Permohonan Untuk Memecahkan Bahagian Tanah purportedly signed by P1 and the

copies of P1, the Deceased and the Other Owners’ identity cards (“NRICs”) [18] D2’s letter to D4 is reproduced below. Rujukan Kami: MHS/GMS/0965(2) Rujukan Tuan: Tarikh: 12 Februari 2010 Tuan Pentadbir Tanah Daerah Klang, Pejabat Tanah/Daerah Klang, 41902 Klang Tuan, Permohonan Untuk Memecahkan Bahagian Tanah Dibawah Seksyen 140 Hingga 144, KTN, Bagi Hakmilik GM6048 Lot 2558, Mukim Kapar, Daerah Klang, Selangor Darul Ehsan Untuk Menjadi Dua Hakmilik Berasingan Perkara di atas adalah dengan hormatnya dirujuk. Kami telah dilantik oleh tuan tanah iaitu En Jahit Bin Rahmat & Rakan-rakan untuk mengemukakan permohonan seperti yang tersebut di atas untuk pertimbangan dan kelulusan pihak tuan. Untuk menyempurnakan tujuan tersebut disertakan bersama ini dokumen-dokumen berikut:-

12 salinan Pelan Pra hitungan ruj: MHS/GMS/0965-PH(01)

3 Salinan Borang 9B

Wang Tunai sebanyak RM100.00 sebagai bayaran pendaftaran

Satu Salinan Sijil Carian Rasmi bagi Hakmilik GM 6048

Satu salinan penyata Cukai Tanah 2010

Satu salinan Hakmilik GM 6048

8 salinan Kad Pengenalan Pemilik Tanah

Surat Kelulusan daripada Majlis Perbandaran Klang (MPK) Kami berharap dokumen seperti yang terlampir di dalam keadaan teratur dan pohon kelulusan dari pihak tuan. Sekian, Terima kasih. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 7 Yang benar, MHS Survey Consultant tt Hi Jaafar Idris sk: Jahit bin Rahmat No. 76, batu 53/4 Jalan Meru 41050 Klang, Selangor [19] On 14.04.2010, D4 approved the application to partition the Original Land. In a letter dated 15.04.2010 signed by Sazatul Faeza Binti Alias (“DW4”), who at the material time was the Penolong Pegawai Daerah (Pembangunan Tanah), DW4 stated that D4 had approved the application for the partition of the Original Land and that two separate titles will be issued (“Approval Letter”). [20] D4’s Approval Letter was addressed to P1 at the address stated in D2’s application letter, which is not P1’s address. D4’s records show that the Approval Letter was not delivered to P1. Instead, it was given to D2’s representative, Hj. Jaafar bin Idris, on 20.04.2010. [21] Under the cover of a letter dated 10.06.2010 signed by Mohammad Ghazali bin Abu (“DW2”) (exhibit “P7”), D2 wrote to D4 asking for new PT Nos. for the partitioned portions of the Original Land to enable it to prepare the sketch plan (pelan lakar). [22] On 08.12.2010 to D4, a law firm Messrs. Salva & Co, informed D4 that it had authorised its representative, Mohd Janurudin bin Talib, to collect the issue of documents of title for the 1st Partitioned Portion and the 2nd Partitioned Portion. D4 delivered the issue documents of title to Messrs. Salva & Co’s representative, even though the law firm did not Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 8 state in its letter who it was representing and why it had the right to the said issue documents of title. [23] P1 said that he discovered the sale of the land in 2019 when he and his family asked Mohd. Mokhtar bin Zakarsi to borrow the issue document of title of the Original Land. He discovered that the Other Co-Owners of the Original Land had sold their share of the land to D1. P1’s sister, Ramlah binti Rahmat, then went to D4’s office to seek confirmation as to where the issue document of title for the Original Land is located. She was informed by D4 that the Owner Co-Owners had sold their share in the land to D1. [24] On 02.03.2019, P1, P2 and their family members went to see D1. They were informed by D1 that the Original Land had been partitioned into the 1st Partitioned Portion and the 2nd Partitioned Portion. And that the 2nd Partitioned Portion was located next to the main road, and the 1st Partitioned Portion was located behind the 2nd Partitioned Portion. The contemporaneous minutes of the meeting are reproduced below:

2.3.2019 (Sabtu) Masa: Lebih kurang 11.00 pagi hingga 12.00 tengahari Tempat: Ban Hooi Tayar S/B Batu 1, Jalan Kapar 41400 Klang. Tel: 03-3342314 H/P: 016-2627258 Hadir: En. Ng Kim Chooi (Pembeli) Jahit bin Rahmat (Penama di Grant) Yusli bin Ismail (Anak) (Nabiba binti Amam – deceased) Nor Izar bin Rahmat Supaat bin Sharif Zaidah bt Rahmat Rugayah bt Romlah bt Rahmat Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 9 Perkara: Berkenalan dengan Pembeli sebahagian Tanah Lot 2558 dari pemilik lama dan meminjam Grant Asal untuk Penukaran nama Hakmilik Setibanya kami di bilik Mr. Ng Kim Chooi, kami memperkenalkan diri dan mengatakan bahawa kami adalah penghuni tapak sebahagian hadapan Lot 2558 yang mana kami dapat tahu Mr. Ng sudah beli sebelah tapak yang kami duduki sekarang. Tujuan kami berjumpa Mr. Ng adalah hendak meminjam grant asal untuk menukar nama Hakmilik sekarang (Jahit & Nabiba (simati) kepada salah sa-orang dari adik beradik kami memandangkan Jahit sudah berpindah rumah lain dan Nabiba sudah meninggal dunia. Mr. Ng setuju untuk meminjamkan grant tersebut. Apabila Mr. Ng menghulurkan kepada kami, alangkah terkejutnya, kami dapati kedudukan tanah kami berpindah ke bahagian belakang lot 2558. Mr. Ng menerangkan kepada kami bahawa grant lama telah dipecahkan kepada dua grant, satu atas nama Jahit, Nabiba & Ng Kim Chooi dan yang satu lagi atas nama Ng Kim Chooi sahaja. Kami menyatakan kepada Mr. Ng bahawa perbuatan pemindahan kedudukan tanah kami tidak kami ketahui hingga hari itu. Mr. Ng juga menyatakan bahawa pemindahan itu pun ia tidak tahu, lebih lanjut boleh rujuk pada peguamnya, Puan Kamalia. Akhirnya tiada penyelesaian perbincangan kami dan Mr. Ng meminjamkan grant asal tersebut ditandatangani oleh Ramlah bt Rahmat untuk tindakan selanjutnya. Mr. Ng beri beberapa cadangan untuk kami berpindah, kami tidak setuju (eg. Duduk sementara dalam masa 4/5 tahun baru pindah ke bahagian belakang lot 2558 atau Mr Ng beli tanah bahagian kami atau ganti dengan tanahnya yang lain kepunyaan Mr. Ng) memandangkan Mr. Ng sudah banyak keluar duit atas pembelian tanah tersebut. [25] On 11.03.2019, P1 and P2 wrote to D3 asking for confirmation whether there was an application to partition the Original Land and a copy of the partition plan. [26] On 25.03.2019, D3 replied P1 and P2’s letter informing them there was an application for the partition of the Original Land on 17.02.2009. It Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 10 referred to D4’s letter bil. PDTK/T/PT/800-5/1/6/2010 (11) dated 15.04.2010 and asked the plaintiffs to check the matter with D4. [27] Upon receipt of D3’s confirmation, P1 on 27.03.2019 filed a police report (No. Repot: Bandar Baru Klang/003804/19) stating that ¾ of his land had been moved to the back and that he suspected that the title of the land had been amended without his approval as the registered landowner. [28] On 28.03.2019, P1 wrote to D4 stating that the position of land on the land title had been moved to the back without his knowledge and that he suspected that unscrupulous individuals had changed the position of the land for their interest. He informed D4 that he had filed a police report on the matter and asked D4 to check how the position of the land had been moved to the back. [29] On 08.04.2019, P1 and P1 filed a report to the Suruhanjaya Pencegahan Rasuah Malaysia (SPRM) that they suspected that the application for partition and change of name of the Original Land did not comply with established procedures, where there had been a breach of trust and use of forged documents. [30] On 10.04.2019, D4 replied P1’s letter of 28.03.2019. It informed P1 that upon reviewing the application for the partition of the Original Land, D4 found the application received was complete and complied with regulations as stipulated in the check list (senarai semak) and the application letter from MHS dated 12.02.2010. It went on to state that accordingly, pursuant to section 140 to 142 of the NLC, the District Land Administrator had considered and approved the application for the Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 11 partition of the land dated 14.04.2010. D4’s letter to P1 is reproduced below: Ruj. Kami: PDTK/PT/800-5/1/6/2010 (17) Tarikh: 10 April 2019 Encik Jahit bin Rahmat d/a Lot 2558, Batu 5 ¾, Jalan Meru 41050 Klang Selangor Tuan, MOHON SEMAK SEMULA KE ATAS PECAH BAHAGIAN YANG TELAH DI UBAH KE BELAKANG Dengan hormatnya saya diarah merujuk surat tuan bertarikh 28 Mac 2019 berhubung perkara di atas.

Adalah dimaklumkan, setelah semakan di buat berhubung dengan perkara di atas, pentadbiran ini mendapati permohonan yang diterima adalah lengkap dan telah mematuhi peraturan-peraturan seperti yang ditetapkan dalam senarai semak dan surat permohonan daripada Jurukur, Tetuan MHS Consultant bertarikh 12 Februari 2010.

Selaras dengan peruntukan di bawah Seksyen 140-142 Kanun Tanah Negara, Pentadbir Tanah Daerah telah menimbang dan meluluskan permohonan pecah bahagian tanah bertarikh 14 April 2010. Sekian, harap maklum. Terima kasih. Saya yang menjalankan amanah, t.t. (AHMAD FITRI BIN AHMAD) Penolong Pegawai Daerah (Pembangunan Tanah) b.p. Pegawai Daerah Klang [31] On 14.05.2019, the plaintiffs wrote to D3 asking for confirmation of the partition of the Original Land. They requested from D3 for copies of the pre-computation plan, MHS’ letter of application and D3’s approval letter to MHS and D4’s approval letter of 14.10.2010. D3 received the letter on 24.05.2019. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 12 [32] On 04.06.2019, D3 forwarded a copy of the pre-computation plan to P2. [33] On 09.07.2019, P1 and P2 filed separate police reports, where they reported to the police that P1’s and the Deceased’s signatures were forged on the application form for the partition of the Original Land. They then filed this writ action against the defendants in June 2020. The Issues [34] The issues for the Court’s determination are:

whether the P2 has the power to act on behalf of the Deceased in this action;

whether there was fraud and forgery in the application for the partition of the Original Land into the 1st Partitioned Portion and the 2nd Partitioned Portion;

whether the application for the partition of the Original Land was null and void at law because of the fraud and forgery in the application;

whether D1 and/or D2 separately and/or jointly were involved in the forgery of the application for the partition;

whether the registration of the names of P1, the Deceased and D1 on the title of the 1st Partitioned Portion, and D1 on the title of the 2nd Partitioned Portion are null and void at law;

whether D2 failed, refused and/or was negligent in discharging his responsibility and duty of care as a licensed land surveyor under Lembaga Jurukur Tanah Malaysia; Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 13

whether D3 failed and/or negligent in discharging its responsibility and duty of care in providing the pre-computation plan (plan pra-hitungan) for the application for the partition; and

whether D4 failed, refused and/or was negligent in discharging its responsibility and duty of care as Land Administrator in the application for the partition and/or the registration of the 1st Partitioned Portion and the 2nd Partitioned Portion? Issue (a): Does P2 have the power to act on behalf of the Deceased’s estate in this action? [35] P2 is the natural-born son and the legal heir of the deceased. D1, D2 and D4 contend that P2 does not have locus standi to act on behalf of the Deceased’s estate because it is still unadministered — no letters of administration or grant of probate have been issued in respect the estate. [36] In Ooi Jim & Anor v. Ai Eit & Ors. [1974] 1 LNS 108; [1977] 2 MLJ 105 (“Ooi Jim”), the Federal Court held that the question of taking out letters of administration would only arise when it became necessary for the beneficiary to claim her share in the estate of the intestate. It held that it was not necessary for the first appellant, in that case, to take out letters of administration to bring the action, as it was primarily an action for a declaration as to the status of her husband. [37] The Federal Court in Al Rashidy bin Kassim & Ors v Rosman bin Roslan [2007] 4 MLJ 297; [2007] 3 CLJ 361; [2007] 3 AMR 341 (“Al Rashidy”) had to decide on the following question of law:

whether the beneficiaries of the deceased person without first obtaining the Letters of Administration have a locus standi to commence an action to protect and to regain the land which has been fraudulently obtained by an outsider? Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 14 [38] Following its earlier decision in Ooi Jim, the Federal Court in Al-Rashidy held that the beneficiaries of a deceased person, without first obtaining a letter of administration of the deceased’s estate, do have locus standi to commence an action to protect and regain the estate’s land that had been fraudulently obtained by an outsider. It held that the beneficiaries of a deceased person have locus standi to protect and preserve the assets of the deceased’s estate even though they have yet to obtain the grant of a letter of administration of the deceased’s estate. The Court cited with approval the Singapore case of Omar Ali bin Mohd. & Ors v Syed Jajaral Sadeq bin Abdulkadir Alhadad & Ors [1995] 3 SLR 388, where the Singapore High Court held that the plaintiffs were suing in their own capacity as beneficiaries of the estate for a declaration to protect the property of the estate, which they had locus standi to do as they had at least equity in the estate of the intestate. It also cited with approval the decision of the Singapore Court of Appeal in Wong Moy (Administratrix of the Estate of Theng Chee Khim, (deceased) v Soo Ah Choy [1996] 3 SLR 398, where the Court held, inter alia, that (i) a beneficiary of an estate which was unadministered may institute an action to recover the assets of the estate where special circumstances could be shown to exist, and (ii) special circumstances were not confined solely to cases where the personal representative had defaulted in acting to recover the property; that all circumstances of the case should be considered. [39] Arifin Zakaria FCJ (as he then was) delivering the Federal Court’s judgment in Al-Rashidy held: [18] We agree with the view expressed by the Singapore Court of Appeal in that the special circumstances should not be confined solely to cases where the personal representative had defaulted in recovering the property of the estate. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 15 We are of the view that all the circumstances of the case ought to be considered by the court in arriving at a just result. Secondly, following Re Atkinson and Omar Ali bin Mohd., we think the beneficiary has at least an equity in the estate of the deceased to entitle the beneficiary to seek on behalf of the estate the remedy of a declaratory judgment. …………….. [20] Thus, the appellants have had to act fast in order to protect and preserve the estate of the deceased. Therefore, on the facts of this case, we find, there exist special circumstances for the beneficiaries to commence legal action against the respondent qua beneficiaries for the purpose of protecting and preserving the asset of the estate. Quite apart from that we also hold that the beneficiaries in the present case have at least an equity in the estate of the deceased to entitle them to seek a declaratory judgment. Thus, on the above grounds are agree with the learned counsel for the appellants that the appellants in this case had the locus standi to commence this action at least for the limited purpose of protecting and preserving the asset of the estate. [Emphasis added] Findings on issue (a) [40] In this instant case, P2 is a beneficiary of the Deceased’s estate has equity in the estate. [41] Following the Federal Court’s decision in Ooi Jim, the question of P2 taking out letters of administration would only arise when P2 and the other beneficiaries of the Deceased’s claim their share in the estate. P2, in this action, is seeking a declaratory order that the partition of the Original Land to the 1st Partitioned Portion and 2nd Partitioned Portion is null and void, and injunctions to preserve and protect the houses situated on the lands from being demolished, and from him and his family from being evicted from the lands. He is not claiming a share in the Deceased’s estate in this action. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 16 [42] The Federal Court in Al Rashidy held that where there exist special circumstances for a beneficiary of an estate to act to preserve and protect the asset of an estate, the beneficiary is entitled to commence legal action against the respondent qua beneficiary for the purpose of protecting and preserving the asset of the estate. [43] It is evident from the facts of this case that P2 had to act in filing this action against the defendants to protect and preserve the estate of the Deceased and to restrain D1 and/or D3 from demolishing the Deceased’s home and that of her extended family on the 2nd Partitioned Portion. [44] Accordingly, for these reasons, I find that there exist special circumstances for P2 as a beneficiary of the Deceased’s estate to bring this action against the defendants qua beneficiary for the purpose of protecting and preserving the assets of the estate. As held by the Federal Court in Al Rashidy, it is not necessary for a beneficiary to take out letters of administration to preserve and protect a deceased’s estate. [45] Therefore, I find that P2 has locus standi to commence this action on behalf of the estate for the limited purpose of protecting and preserving the asset of the Deceased’s estate and to seek declaratory orders and injunctions against the defendants. Issue (b): whether there was fraud and forgery in the application for the partition of the Original Land into the 1st Partitioned Portion and the 2nd Partitioned Portion? [46] The instruments which are in dispute in respect of the partition of the Original Land into the 1st Partitioned Portion and the 2nd Partitioned Portion are (i) the impugned plan; and (ii) the Borang 9B. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 17 [47] D2’s application letter to D4 for the partition of the Original Land was purportedly copied to P1. However, as the evidence shows, the address in the “sk” on the letter was not P1’s. During the trial, P1 confirmed that the address on D2’s application letter was not his and that he had never received a copy of the said letter. [48] Both the impugned plan and the Borang 9B were purportedly signed by P1 and the Deceased. P1 denied that he had appointed D2 to apply for the partition of the Original Land. He also denied signing either the impugned plan or the Borang 9B. [49] The plaintiffs’ case is that as the Deceased had died on 14.06.2003, it would have been impossible for the Deceased to have appointed D2 to apply to partition the Original Land, or for her to have signed the impugned plan on 25.10.2009 and the Borang 9B on 10.03.2010. [50] It is D1 and D2’s case that D2 was appointed to make the application for the partition of the Original Land into the 1st Partitioned Portion and the 2nd Partitioned Portion; and that the impugned plan and the Borang 9B were signed by P1, the Deceased and the Other Co-Owners of the Original Land. In his written submission, learned counsel for D1 and D2 submitted:

Defendan Kedua berhujah bahawa selaku perunding jurukur tanah yang telah dilantik untuk membuat permohonan pecah bahagian bagi Hartanah Terdahulu kepada Hartanah Pertama dan Hartanah Kedua telah menyempurnakan proses pecah bahagian tersebut dengan baik dan teratur.

Defendan Kedua juga berhujah bahawa setiap proses yang dilakukan oleh Defendan Kedua adalah di dalam pengetahuan dan persetujuan pemilik-pemilik berdaftar Hartanah Terdahulu berdasarkan pelan P1 dan Borang 9B yang telah ditandatangani oleh kesemua pemilik-pemilik berdaftar Hartanah Terdahulu. [Emphasis added] Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 18 [51] The standard of proof for fraud in civil actions is on a balance of probabilities. The Federal Court in Sinnaiyah v Damai Setia [2015] 5 MLJ 1; [2015] 7 CLJ 584; [2015] 5 AMR 497 held that there are only two standards of proof, namely (i) beyond a reasonable doubt in criminal cases, and (ii) on a balance of probabilities in civil cases. It held that the standard of proof of fraud in a civil case is on a balance of probabilities. [52] The plaintiffs desire that this Court give judgment to them and declare that the partition of the Original Land into the 1st Partitioned Portion and the 2nd Partitioned Portion is null and void because of the fraud and forgery in the application for the partition. Thus, pursuant to section 101 of the Evidence Act 1950 (“EA”), the legal burden of proof is on the plaintiffs to establish their case that there was fraud and forgery in the application for the partition of the Original Land. [53] Nonetheless, the legal burden of proof (the burden of establishing a case) should not be confused with the evidential burden of proof (the burden of introducing evidence). The Federal Court in International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86; [1980] 1 LNS 31, explained the distinction between the legal burden of proof and evidential burden of proof, per Salleh Abas FCJ (as he then was) as follows: “For the purpose of this appeal it is necessary to bear in mind the distinction between the two senses in which the expressions burden of proof and onus of proof are used ( Nanji & Co v Jatashankar Dossa & Ors AIR 1961 SC 1474 1478 and Raghavamma v Chenchamma AIR 1964 SC 136 143). The first sense, signified by the expression burden of proof such as referred to in section 101 of the Evidence Act is the burden of establishing a case and this rests throughout the trial on the party who asserts the affirmative of the issue. …………….. The second sense referred to as onus of proof, on the other hand, relates to the responsibility of adducing evidence in order to discharge the burden of proof. The onus as opposed to burden is not stable Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 19 and constantly shifts during the trial from one side to the other according to the scale of evidence and other preponderates. Such shifting is one continuous process in the evaluation of evidence. According to section 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail. It is this onus that we are concerned with in the present appeal. [Emphasis added] [54] The Federal Court held that whilst the legal burden of proof lies with the party seeking judgment throughout the trial, the evidential burden of proof shifts from one side to the other during the trial. [55] Section 103 of the EA states that the burden of proof of a particular fact lies with the person who wishes the Court to believe in its existence. Section 103 reads:

Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove the admission.

B wishes the court to believe that at the time in question he was elsewhere. He must prove it. [56] Pursuant to section 106 of the EA, the burden of proving a fact within the knowledge of a person, is with that person. Section 106 reads:

Burden of Proving fact especially within knowledge When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. ILLUSTRATIONS Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 20

When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. [57] D2 wishes this Court to believe that D2 was appointed by the registered owners of the Original Land, including P1 and the Deceased, to apply for the partition of the Original Land into the 1st Partitioned Portion and the 2nd Partitioned Portion. He also wishes this Court to believe that P1 and the Deceased had signed the impugned plan and the Borang 9B. [58] Accordingly, pursuant to sections 103 and 106 of the EA, the burden of proof is on D2 to prove on a balance of probabilities that:

D2 was appointed by P1 and the Deceased to make the application for the partition of the Original Land; and

P1 and the Deceased had signed the impugned plan and the Borang 9B. This is because both these particular facts are within D2’s knowledge.

Did D2 prove that he was appointed by P1 and the Deceased to make the application for the partition? [59] D1 and D2 plead in para. 14 of their statement of defence that D2 was appointed by the registered owners of the Original Land to make the application for the partition of the land into the 1st Partitioned Portion and the 2nd Partitioned Portion. Para. 14 of the defence is reproduced below:

……….. Defendan Kedua menyatakan bahawa Defendan Kedua telah dilantik oleh pemilik-pemilik berdaftar asal bagi Hakmilik terdahulu untuk Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 21 membuat permohonan pecah bahagian tanah kepada Hartanah Pertama dan Hartanah Kedua. [60] Encik Mohammad Ghazali Bin Abu, a manager at MHS Survey Consultant (“DW2”) was called as a witness by the defendants at the trial. Under cross-examination, DW2 admitted that D2 was not appointed by registered owners of the Original Land to make the application for the subdivision and partition. DW2 said that D2 was instructed to make the application by an unknown Malay man whose name DW2 claims he cannot remember. Additionally, DW2 confirmed that the Malay man who instructed him was not P1. DW2’s testimony on this issue is reproduced below: Plaintiffs’ Counsel: Boleh En. Ghazali beritahu kepada Mahkamah siapa yang mengarahkan Defendan ke-2 untuk P1 ini, Pelan Tapak ini disediakan? Siapa yang beri arahan? Saya …. tentang arahan ini saya tak ingat daripada saya tapi seorang Melayu. Saya dihubungi melalui telefon dan first appointment saya di Pejabat Tanah. Plaintiffs’ Counsel: Sekali lagi? Tak jelas, tak dengar. Saya tak dapat menjelaskan ini particular siapa yang ….. cuma saya boleh ingat masa itu saya buka fail ini atas nama Jahit. Tapi ….. Judge: Encik apa? Jahit. Yang ada nama penama ni. Sebab urusan tanah ini selalunya …. Plaintiffs’ Counsel: Sekejap. Sekejap. Encik kata Encik dapat arahan melalui telepon oleh seorang lelaki Melayu? Ya, betul. Plaintiffs’ Counsel Lelaki Melayu itu bukan Jahit? Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 22 Bukan Jahit tapi saya tak boleh ingat siapa. Plaintiffs’ Counsel: Tak ingat siapa tetapi Encik letakkan nama orang itu yang memohon ini untuk pecah bahagian seorang …. Encik letakkan nama Jahit. Betul? Betul. Saya namakan kes ini, kes yang saya ambil sebagai Jahit. Plaintiffs’ Counsel: Apa? Fail saya, saya namakan sebagai Jahit. Plaintiffs’ Counsel: Okay. Saya katakan En. Jahit tidak pernah melantik Defendan Ke-2 untuk membuat pecah bahagin pada geran asal ini, Lot 2558. Setuju dengan saya. Ulang balik? Plaintiffs’ Counsel: Encik kata Encik letak nama fail ini fail Jahait Mmm. Plaintiffs’ Counsel: Saya kata En. Jahit tidak pernah melantik Defendan ke-2 ini atau Mohamad bin Sidin atau pun Encik ke untuk buat pelan pecah bahagian ini, tanah Lot 2558 ini. Dia tidak pernah lantik. Setuju dengan saya? Setuju. [Emphasis added] [61] By reason of DW2’s admission that D2 was not appointed by P1 to make the application for the partition and the fact that the Deceased had died more than six years before the date of the application, I find that D2 had failed to prove that he was appointed by P1 and the Deceased to make the application to partition the Original Land. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 23

(ii) Did D2 prove that the impugned plan and the Borang 9B were signed by P1 and the Deceased? [62] How is a signature on a document proved? Section 67 of the EA states that if a document is alleged to be signed by a person, the signature of that person must be proved. Section 67 reads:

Proof of signature and handwriting of person alleged to have signed or written document produced If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting shall be proved to be in his handwriting. [63] Pursuant to section 103 and 106 of the EA, D2 must prove that the signatures on the impugned plan and Borang 9B were those of P1, the Deceased and the Other Co-Owners. [64] Augustine Paul FCJ in Evidence: Practice and Procedure (4th Ed, LexisNexis) at p 667, citing Sarkaria J's judgment in State (Delhi Administration) v. Pali Ram AIR [1979] SC 14, stated that similar to the Indian Evidence Act and English Law, our EA recognises two direct methods of proving a person's signature or handwriting, which are:

the admission of the person who wrote the signature or writing; or

the evidence of a witness who saw the person sign or write the document. [65] His Lordship went on to state that a person’s signature or handwriting may also be proved by:

by the evidence of a handwriting expert: section 45 of the EA; Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 24

by the evidence of a witness acquainted with the handwriting of the person with the handwriting of the person by whom it is supposed to have been written or signed: section 47 of the EA;

opinion formed by the court on the comparison made by itself: section 73 of the EA; and

by circumstantial evidence: per Abdoolcader FJ in Dato Mokhtar bin Hashim & Anor v. Public Prosecutor [1983] CLJ Rep 101; [1983] 2 CLJ 10; [1983] 2 MLJ 232, FC. [66] In this instant case, did D2 prove P1’s and the Deceased’s signatures on the impugned plan and the Borang 9B? Going through all the six methods of proving a person’s signature as stated by Augustine Paul FCJ, I find that the answer is in the negative. My reasons for this finding are as follows:

D2 did not obtain the admission of P1 or the Deceased that they had signed both the impugned plan and the Borang PB. P1 did not admit that he had signed both documents. And D2 could not procure an admission from the Deceased since she had died more than six years prior to the date of her purported signatures on both documents;

D2 did not adduce any evidence of a witness who saw P1 or the Deceased signing either document;

D2 did not adduce the evidence of a handwriting expert that the signatures on the impugned plan and the Borang 9B are P1’s and the Deceased’s. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 25 i. The handwriting expert, Encik Muhammad Rafiuddin bin Jailani, who is a Document Examiner with the Jabatan Kimia Malaysia (“PW3”) examined P1’s purported signature on the impugned plan by comparing it against P1’s specimen signatures. ii. In his report dated 18.10.2019, PW3 concluded that upon comparing P1’s specimen signatures, P1’s purported signature on the impugned plan was most probably not written by P1. iii. Learned counsel for D4, during her cross-examination of PW3 suggested to him that there is a probability that the signature on the impugned plan could be P1’s. Although PW3 agreed with the suggestion, he said that the probability that the signature on the impugned plan was P1’s was less than fifty percent (50%);

D2 did not adduce any evidence of any witness who is acquainted with P1 and the Deceased’s signatures;

this Court did not form an opinion on a comparison of P1’s and the Deceased’s signatures on the impugned plan and the Borang 9B, with any other signatures of theirs; and

D2 did not adduce any circumstantial evidence to prove that the signatures on the impugned plan and the Borang 9B were P1’s and the Deceased’s. [67] Moreover, DW2 affirmatively stated under cross-examination that he had never met with any of the registered owners of Original Land and that Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 26 he did not witness any of the signatures on the impugned plan. He said that he had, instead, given the impugned plan to the same Malay man whose name he cannot remember to procure the signatures of the co-owners of the Original Land. He also confirmed that the Malay man to whom he gave the impugned plan was not P1. [68] DW2 further confirmed that he did not know when the purported signatures were made on the impugned plan, or that the Deceased had died. DW2’s testimony on this issue is reproduced below: Plaintiffs’ Counsel: Siapa yang dapatkan tandatangan 8 orang ini? Apabila persetujuan untuk plot A, plot B …… Plaintiffs’ Counsel: Tak. Soalan saya senang saja. Siapa yang dapatkan tandatangan? Sebab tadi En. Ghazali setuju dengan saya ada 8 tandatangan. Betul, saya serah …… Judge: Soalan saya, siapa yang dapatkan tandatangan ini? Saya serahkan kepada orang yang sama, orang yang pertama saya jumpa itu. Plaintiffs’ Counsel: Kepada siapa? Orang yang saya berjumpa kali pertama untuk kes ini? Plaintiffs’ Counsel “Orang yang saya jumpa kali pertama”. Dan orang kali pertama itu bukan En. Jahit. Setuju dengan saya? Setuju Plaintiffs’ Counsel: Setuju? Setuju. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 27 Plaintiffs’ Counsel: Encik tahu bilakah tandatangan ini diturunkan oleh kelapan-lapan orang ini? Ada jangka masa tapi saya tak tahu berapa lama? Plaintiffs’ Counsel: Tidak tahu? Tidak tahu. Plaintiffs’ Counsel: Boleh saya katakan Encik tidak menyaksikan tandatangan ini dibuat? Setuju. Plaintiffs’ Counsel: Encik tengok nombor 3 itu, Nabiba Bt Amam, 1/12 bahagian. Encik tahu Nabiba Amam ini telah meninggal dunia? Tidak tahu. [Emphasis added] Findings on issue (b) [69] For these reasons, I find that D2 had failed to discharge his burden of proof that the purported signatures on the impugned plan and the Borang 9B were made by P1 and the Deceased. [70] I am satisfied that based on the facts of this instant case, P1’s and the Deceased’s signatures on the impugned plan and the Borang 9B were forged. [71] Accordingly, I find that there was fraud and forgery in the application for the partition of the Original Land into the 1st Partitioned Portion and the 2nd Partitioned Portion. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 28 Issue (c): whether the application for the partition of the Original Land was null and void at law because of the fraud and forgery in the application? [72] The partition of alienated lands is governed by Chapter 2 of Part Nine, sections 140 to 145 of the NLC. [73] Pursuant to section 140(1) of the NLC, any alienated land held by co-proprietors may be partitioned by (i) the agreement between the co-proprietors and (ii) the approval of the State Director (for land held under Registry title) or the Land Administrator (for land held Land Office title). Section 140(1) reads:

Powers of co-proprietors to partition with approval of State Director or

Any alienated land which is held under Registry or Land Office title by two or more persons as co-proprietors may, by agreement between those persons and with the approval under this Chapter of the State Director or Land Administrator, as provided by sub-section (2), be partitioned-

so as to vest in each of them, under a separate title, a portion of the land of an area proportionate as nearly as may be to his undivided share in the whole; or

where two or more of them are to continue as co-proprietors, so as to vest-

in the remaining co-proprietor or, as the case may be, each of such co-proprietors, under a separate title, a portion of the land of an area proportionate as nearly as may be to his undivided share in the whole; and

(ii) in the continuing co-proprietors the remainder of the land under a separate title. [74] Section 141(1)(a) states that no partition shall be approved by the State Director or the Land Administrator unless each of the co-proprietors has either joined in, or consented to making the application for its approval. Section 141(1)(a) reads: Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 29

Conditions for approval of partition

No partition shall be approved by the State Director or, as the case may be, Land Administrator unless-

each of the co-proprietors has either joined in, or consented to the making of, the application for its approval; [75] Notwithstanding the provisions in sections 140 and 141, section 141A of the NLC states that any co-proprietor can make the application for approval to partition a land, where the other co-proprietors do not join in or consent in the making of the application. Section 141A reads:

Application for partition by any co-proprietors Notwithstanding the provisions of sections 140 and 141, any co-proprietors neither join in nor consent to the making of the application may apply for approval to the land. [76] Learned counsel for D1 and D2 submits that the process for the partition of the Original Land was in order and valid because section 141A of the NLC allows the other co-proprietors of the Original Land to apply for the partition of the land. [77] With regards to the partition of the Original Land, pursuant to sections 103 and 106 of the EA, the evidential burden is on D1 and D2 to prove that any of the co-proprietors of the Original Land (defined above as “the Other Co-Owners”) had consented to the application for the partition of the said land. [78] Similarly, as D1 and D2 are relying on section 141A of the NLC that the Other Co-Owners had consented to the application for the partition of the Original Land, the evidential burden is on D1 and D2: see Au Meng Nam & Anor v Ung Yak Chew & Ors [2007] 5 MLJ 136; [2007] 4 CLJ 526; [2007] 4 AMR 546, CA (“Au Meng Nam”). The Court of Appeal in Au Meng Nam held that as the first defendant, in that case, relied on the Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 30 proviso in section 340(3) of the NLC that he was a bona fide purchaser for value, the evidential burden was on him. [79] D1 and D2 did not call any of the Other Co-Owners as witnesses during the trial. Without the testimony of any of the Other Co-Owners, both D1 and D2 failed to prove that their case that the Other Co-Owners had consented to the making of the application for the partition of the Original Land. They also did not produce any evidence to discharge their evidential burden that D2 was instructed by at least one of the Other Co-Owners to apply for the partition. DW2’s evidence was that he was instructed through the telephone by a Malay man whose name he claims he cannot remember. DW2 did not say that the Malay man was one of the Other Co-Owners. It follows, therefore, that D1 and D2 failed to prove that any of the Other Co-Owners had instructed D2 to apply for the partition of the land. [80] Furthermore, as discussed in Issue (d) below, D1’s evidence is that he did not meet any of the co-owners of the Original Land prior to the partition of the Original Land: see D1’s testimony reproduced in para. [93] below. He only dealt with a broker. Like DW2, D1 testified that the broker was a Malay man whose name he cannot remember. D1 said that he only met with the sellers of the land after the partition of the Original Land, when he was going to cross out (potong) the details of the Original Land and replace it with the details of the 1st Partitioned Portion on the Borang 14A. Findings on issue (c) [81] For the reasons above, both D1 and D2 failed to prove that D2 was appointed by P1 and the Deceased, or by any other the Other Co-Owners of the Original Land for the application for the partition of the land. They Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 31 also failed to prove that any of the Other Co-Owners of the Original Land had made and/or agreed to D2 making the application of the partition of the title of the Original Land. [82] Accordingly, this Court finds that the application for the partition of the Original Land did not comply with either section 140 or section 141A of the NLC. The application for the partition is accordingly null and void for this reason. [83] Additionally, this Court has found for the reasons stated in Issue (b) above that there was forgery of the impugned plan and the Borang 9B. In Boonsom Boonyanit v Adorna Properties Sdn Bhd [1997] 3 CLJ 17; [1997] 2 MLJ 62; [1997] 2 AMR 1813, the Court of Appeal, per Gopal Sri Ram JCA (as he then was) held: Third, it is axiomatic that a forged instrument is null and void and of no effect. (See, Kreditbank Cassel G.M.B.H. v. Schenkers Ltd. [1927] 1 KB 826, at p. 834, per Bankes LJ). It is not merely voidable. [Emphasis added] [84] The English Court of Appeal in Kreditbank Cassel G.M.B.H. v. Schenkers Ltd. [1927] 1 KB 826, held that because the bills of exchange, in that case, were forgeries, applying Ruben v. Great Fingall Consolidated [1906] A. C. 439, the plaintiffs could not, in any event, invoke the principle that they were not bound to inquire into the indoor management of the defendant company. It cited the decision of the House of Lords in Ruben v Great Fingall Consolidated, where Lord Loreburn L.C. said as follows in relation to forged documents: I cannot see upon what principle your Lordships can hold that the defendants are liable in this action. The forged certificate is a pure nullity. It is quite true that persons dealing with limited liability companies are not bound to inquire into their indoor management, and will not be affected by irregularities of which they had Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 32 no notice. But this doctrine, which is well established, applies only to irregularities that otherwise might affect a genuine transaction. It cannot apply to a forgery. {Emphasis added] [85] Accordingly, as the impugned plan and the Borang 9B were forged documents, based on the decision of the Court of Appeal in Boonsom Boonyanit v Adorna Properties Sdn Bhd; and the English cases of Ruben v Great Fingall Consolidated and Kreditbank Cassel G.M.B.H. v. Schenkers Ltd., this Court finds that the application for the partition of the Original Land was null and void. Issue (d): whether D1 and/or D2 separately and/or jointly were involved in the fraud and forgery of the application for the partition? ▪ D1 [86] The evidence shows that D1, when he wanted to buy the land, knew that the 1st Partitioned Portion and the 2nd Partitioned Portion were originally one piece of land — the Original Land — held under one title. D1’s testimony on this issue is reproduced below: Plaintiffs’ Counsel: Saya masih lagi dalam S&J4, Yang Arif. Mr. Ng, pada masa Mr. Ng mahu beli itu tanah 2010, Mr. Ng kata 2010, kan? Plaintiffs’ nsel: Itu jam, 2 geran belum lagi ada. Setuju dengan saya? Betul. Plaintiffs’ Counsel: Mesti ada 1 geran sahaja? 1 geran sahaja. [Emphasis added] Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 33 [87] During the trial, D1 was shown the impugned plan (exhibit “P1”) that was submitted by D2 in the application for the partition of the Original Land. On the impugned plan, the Original Land (Lot 2558) was drawn into Plot B (facing the main road) and Plot A (behind Plot B). After the partition was approved by D4, Plot A was held under the title for the 1st Partitioned Portion and Plot B was held under the title for the 2nd Partitioned Portion. Below is the image of the part of the impugned plan showing the main road, Lot 2558 and Plots A and B: [88] D1’s testimony shows that he knew, before the application for the partition was made by D2, the location of Plot A and Plot B of the Original Land, which were subsequently held after the partition under two separate titles. The excerpt of his testimony is reproduced below: Plaintiffs’ Counsel: Yang Arif, saya akan merujuk SD1 kepada P1 di dalam m/s 1 bundle C, Yang Arif. Mr. Ng, itu depan ada ini, C. Yang nipis, m/s 1. Mr. Ng tengok m/s 1 ada ini pelan. Depan sekali, paling depan, paling awal. Ya, itu. Betul. Mr. Ng Nampak itu ada Plot A, Plot B dekat itu pelan? Ada Nampak? Boleh tengok ke? Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 34 Boleh. Plaintiffs’ Counsel: Mr. Ng beli plot mana? Ha? Plaintiffs’ Counsel: Yang mana satu Mr. Ng sudah beli? Itu tanah Mr. Ng beli Plot B, betul? Plot B, betul. Itu besar punya. Plaintiffs’ Counsel: Mr. Ng beli semua itu Plot B, betul? Betul. Betul Plaintiffs’ Counsel: Plot A Mr Ng beli, ada bahagian yang Mr. Ng. beli. Tidak semua. Betul? Betul. [Emphasis added] [89] D1 said that he did not meet the registered owners of the Original Land before deciding to buy the land. Instead, he had met with a broker — a Malay man whose name he claims he cannot remember. D1 said that the broker told him that the land was for sale. [90] Under cross-examination, D1 testified that on the recommendation of his lawyer, he had appointed D2 to make the application for the partition of the Original Land. He said that he had paid D2’s fees in making the application. D1 said he had also paid D3’s and D4’s fees for the application. [91] After the partition of the Original Land, one of the Other Co-Owners of the Original Land, Mohd. Mokhtar bin Zakarsi transferred his portion of the Land to D1 for the sum of RM100,000.00: see the memorandum of transfer (Borang 14A) dated 12.05.2010 (exhibit “P11”). And the rest of the Other Co-Owners — Mohd Mosly bin Zakasi, Nasrudin bin Jarkasi, Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 35 Rihanah binti Jarkasi, Saada binti Jarkasi and Zohdi bin Haji Abdul Manan — transferred to D1 all the portions of land held under HS(M) 39941, PT 66485, Mukim Kapar (i.e., the 2nd Partitioned Portion) for the sum of RM650,000.00: see memorandum of transfer (Borang 14A) dated 12.05.2010 (exhibit “P13”). [92] The Jadual Tanah dan Kepentingan on the Borang 14A (exhibit “P11”) shows the portion and details of the land transferred by Mohd. Mokhtar bin Zakarsi to D1 was 1/10 share in Geran Mukim 6048, Lot 2558, Mukim Kapar (i.e., the Original Land). However, the details were crossed out and replaced with 2/7 portion and that of HSM 39940, PT 66484, Mukim Kapar (i.e., the 1st Partitioned Portion). This can be seen in the image of the 2nd page of exhibit “P11” shown below: [93] D1 said that before he crossed out (potong) the details of the Original Land on the Borang 14A (exhibit “P11”) and replaced it with the details of the 1st Partitioned Portion, he met all the sellers of the land. He said that he only viewed the land from the main road; and did not view the Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 36 land together with the sellers. D1 also said that when viewing the land from the main road, he could see that there were houses on the said land. However, he did not ask the broker or the sellers whose houses were on the said land. The excerpt of his testimony is reproduced below: Plaintiffs’ Counsel: Mr. Ng tengok ada jawapan No. 4 “4.J”. Mr. Ng kata: “Pada sekitar tahun 2010 saya telah bersetuju untuk membeli 2/7 bahagian tanah milik Mohd Mokhtar Bin Zakarsi atas hakmilik HSM39940, PT 66484, Mukim Kapar (Hartanah Pertama) dengan harga RM100,000.00 serta kesemua bahagian tanah milik Mohd Mosly Bin Zakasi, Nasrudin Bin Jarkasi, Rihanah Binti Jarkasi, Saada Binti Jarkasi dan Zohdi Bin Hj Abd Manan atas hakmilik HSM 39941, PT 66485, Mukim Kapar (Hartanah Kedua) dengan harga RM650,000.” Mr. Ng, saya mahu tanya, ada jumpa penjual tak pada tahun 2010 ini? Apa itu? Plaintiffs’ Counsel: Mr. Ng, setuju jumpa, kan? Tadi ada broker? Plaintiffs’ Counsel: Ada jumpa ini semua penjual yang Mr. Ng mahu beli dia punya tanah? Bila saya mahu potong ……. pindah itu …. Plaintiffs’ Counsel: Pindah nama? Pindah itu 14A, itu ada jumpa. Plaintiffs’ Counsel: Mr. Ng, sebelum Mr. potong itu 14A, sign itu 14A, ada pergi ini tanah tak, tengok sama-sama dengan penjual? Ada pergi tengok? Tak ada. Plaintiffs’ Counsel: Tak pernah pergi tengok tanah? Ada tengok di jalan besar. Tengok saja. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 37 Plaintiffs’ Counsel: Dari jalan besar, tengok saja itu tanah? Dia cakap ini tanah nak jual. Itu saja. Plaintiffs’ Counsel: Itu saja? Plaintiffs’ Counsel: Itu jam masa Mr. Ng tengok tanah dari jalan besar, ini kawasan, kawasan depan ini ada rumah sudah, itu tanah ada rumah. Tahu? Ada Nampak. Depan pun ada. Ada Nampak. Plaintiffs’ Counsel: Mr. Ng ada tanya tak itu penjual ke, itu broker ke, “itu rumah siapa”? Ada tanya? (inaudible 00.42.31) Plaintiffs’ Counsel: Tak ada tanya? Jawab Mr. Ng, ada ke tak ada? Tak ada. [Emphasis added] [94] D1 as the purchaser of the land should have conducted the relevant investigation on the land prior to his purchase of the land. The Court of Appeal in Yap Ham Seow v Fatimawati Bt Ismail & Ors and Another Appeal [2013] 9 CLJ 577; [2014] 1 MLJ 645; [2014] 2 AMR 301 (“Yap Ham Seow”) held that a purchaser is clearly obligated to investigate properly all matters relating to the sale of the land. [95] The Court of Appeal found the third defendant, who was the purchaser in that case, was a negligent purchaser because he had concluded the sale without any proper investigation into the title or the persons who were the actual proprietors of the land. It held that a negligent purchaser could not be accorded protection of the Court because a purchaser in good faith does not include a purchaser who had been Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 38 negligent or kept his eyes shut. Raus Sharif PCA (as he then was) delivering the judgment of the Court of Appeal, held: [102] Premised on the above, we are convinced that the third defendant had concluded the sale without any proper investigation into the title or the persons who are the actual proprietors. ………. The third defendant in the conveyance of the land was under obligation to investigate properly all matters relating to the sale of the land. Clearly based on the facts and circumstances of the case the third defendant was negligent in not doing so. In our considered view a negligent purchaser cannot be accorded the protection of this court because a purchaser in good faith does not include a purchaser who has been negligent or who had kept his eyes shut (Au Meng Nam & Anor v Ung Yak Chew & Ors [2007] 5 MLJ 136 (Au Meng Nam). This court in Au Meng Nam had held that the purchaser is under the obligation to investigate properly all matters relating to the sale and not just blindly accept what was claimed by the vendor as correct and genuine. The purchaser in that case clearly disregarded his obligations to investigate the alleged proprietors and the genuineness of the documents. Hence, when a purchaser failed to take ordinary precautions which ought to have been taken in such a matter, he is not entitled to the protection of the court. [Emphasis added] [96] In the Court of Appeal’s earlier decision in Au Meng Nam & Anor v Ung Yak Chew & Ors (supra), Raus Sharif JCA (as he then was) held: [44] ……… The first defendant is under the obligation to investigate properly all matters relating to the sale of the said land and not to just blindly accept what was claimed by the 'vendors' as correct and genuine. When he failed to take the ordinary precautions which ought to be taken in such a matter he is not entitled to the protection of the court. And Gopal Sri Ram JCA (as he then was) said: "………. To me, the 1st defendant had acted hastily. He concluded the sale without any proper investigation into the title or the persons claiming to be proprietors. No doubt he had every right to take advantage of the low price that was offered to him but he took the risk. When he embarked into such risk, it cannot be at the expense of the plaintiffs. This is because while he had a choice, Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 39 the plaintiffs had none. In fact, the plaintiffs were helpless. The plaintiffs could not do anything to prevent the fraud. Even locking the title in a safe would not had help the plaintiffs. In such circumstances the court must not favour the 1st defendant, over the plaintiffs. To do so would be doing injustice to the plaintiffs." [Emphasis added] [97] By his own admission, D1 had failed to make any inquiries as to who were the co-owners of the Original Land and whether they agreed to the land to be partitioned. He also failed to make any enquiries as to existing houses that were on the said land and its owners and occupants. He relied on the broker completely. The Chancery Court of England and Wales in Oliver v Hinton [1899] 2 Ch 264 found that a purchaser to be grossly negligent in failing to make any inquiry as to the title and relied on his agent completely. The Court found that although there was no fraud in fact by the purchaser, but the purchaser’s failure to make any inquiry as to the title was negligence so gross that led the Court to impute fraud on the purchaser. Linley MR held: “In the present case there has been no fraud on the part of the defendant; there has only been gross negligence in the ordinary sense of words. … negligence so gross as would justify the Court of Chancery in concluding that there had been fraud in an artificial sense of the word — such gross negligence, for instance as omitting to make any inquiry as to the title of the property. In that sense of the word, I think, there has been in the present case on the part of the defendant negligence so gross as would have led the Court of Chancery to impute fraud of that kind to her. I do not mean to suggest that there was any fraud in fact.” [Emphasis added] [98] The principles promulgated in Oliver v Hinton (“the Oliver v Hinton principles”) was applied by the Court of Appeal in Au Meng Nam and Yap Ham Seow. Raus Sharif PCA (as he then was) in Yap Ham Seow said: Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 40 [103] The case of Au Meng Nam reiterated the governing principles as propounded by Linley MR in Oliver v Hinton [1899] 2 Ch 264. The Chancery Court in Oliver v Hinton found the purchaser to be grossly negligent in failing to make inquires as to the title and relied on his agent completely. [Emphasis added] [99] Based on the facts and circumstances of this instant case, I find that D1 was grossly negligent in failing to make any inquiries as to the title of the Original Land and the co-proprietors of the said land. As held by the Court of Appeal in Yap Ham Seow, D1 as the purchaser of the land was under an obligation to investigate properly all matters relating to the sale of land, including the title of the land and actual proprietors of the land. D1 by his own admission, did not do so. Paraphrasing the words of Raus Sharif PCA in Yap Ham Seow, by failing to conduct the necessary investigation, D1 clearly disregarded his obligation to make enquiries as to the title and closed his eyes as to whether the co-proprietors of the Original Land had agreed or consented to the partition of the said land, and whether D2 had made the application to partition the land on the instructions of any of the co-proprietors. [100] D1’s gross negligence had resulted in the Original Land being partitioned without P1 and the Deceased’s consent and the houses owned by the plaintiffs’ and their extended families on the 2nd Partitioned Portion at risk of being demolished and those occupying the houses at risk of being evicted from the land. [101] For this reason, pursuant to the Oliver v Hinton principles, I find D1’s negligence so gross as to impute fraud on D1. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 41 ▪ D2 [102] Under section 5 of the NLC, a pre-computation plan must be prepared either by the Director of Survey and Mapping or a licensed land surveyor showing the intended new boundaries and areas of the lots based on computation from existing survey data or other relevant data, where the linear misclosure of the computation is not less than one part in four thousand. “Pre-computation plan” is defined in section 5 of the NLC as: “a plan of the layout of lots prepared by Director of Survey and Mapping or licensed land surveyor showing the intended new boundaries and areas of those lots which are based on computation from existing survey data and other relevant data, where the linear misclosure of the computation is not less than one part in four thousand.” [Emphasis added] [103] “Licensed land surveyor” is defined in section 5 of the NLC as a surveyor licensed to practise under the Licensed Land Surveyors Act, 1958 (the “1958 Act”). D2 is a licensed land surveyor – he is licensed to practice under the 1958 Act. [104] DW2 is employed as a Pembantu Jurukur at D2’s firm, MHS. Under cross-examination, DW2 confirmed that he is not a licensed land surveyor: he is not licensed to practice under the 1958 Act. [105] DW2 also confirmed that impugned plan was not prepared by D2. He testified that the impugned plan was prepared by a person named Liza, who is a “pelukis plan” employed at MHS and that DW2 had reviewed the impugned plan prior to submission to D3. [106] Additionally, DW2 confirmed that neither he nor Liza went to the site of the Original Land nor did they measure the said land in preparing Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 42 the impugned plan. He said that the plan was prepared based on what the Malay man whose name he cannot remember, told him. It was not prepared based on computation from existing survey data and other relevant data as required under section 5 of the NLC. Accordingly, the impugned plan did not fall within the definition of a “pre-computation plan” under the NLC. [107] Despite the impugned plan not being a pre-computation plan, D2’s firm MHS in its letter of 17.09.2009 to D3 stated that it was a pre-computation plan and submitted 17 copies of the plan for D3’s approval. [108] MHS had also stated in its application letter of 12.02.2010 to D4 that it was appointed by landowner “En Jahit Bin Rahmat & rakan-rakan” to subdivide the Original Land. From DW2’s testimony, we know this statement was not true — DW2 under cross-examination confirmed that P1 did not appoint D2 or MHS. DW2 also confirmed that he did not witness P1 and the Other Co-Owners signing the impugned plan, and that he was not aware that the Deceased was dead at the time she had purportedly signed the impugned plan. [109] Accordingly, based on these facts, I find that D2 was in fact involved in the fraud and forgery of the application for the partition of the Original Land. Findings on issue (d) [110] For all the reasons above, I find that D1 and D2 were separately and/or jointly involved in and/or privy to the fraud and forgery of the application for the partition of the Original Land into the 1st Partitioned Portion and the 2nd Partitioned Portion. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 43 Issue (e): whether the registration of the names of P1, the Deceased and D1 on the title of the 1st Partitioned Portion, and D1 on the title of the 2nd Partitioned Portion is null and void at law? [111] This Court had found for the reasons discussed in Issue (c) above that the application for the partition Original Land into the 1st Partitioned Portion and the 2nd Partitioned Portion was null and void. [112] Additionally, this Court had found for the reasons discussed in Issue (d) above that D1 and D2 were separately and/or jointly involved in and/or privy to the fraud and forgery of the application for the partition of the Original Land. [113] As both the partition and the titles for the 1st Partitioned Portion and the 2nd Partitioned Portion were obtained through fraud and forgery, they are null and void at law. It follows, therefore, that the transfer and registration of the new co-proprietors on the title of the 1st Partitioned Portion and the name of D1 on the title of the 2nd Partitioned Portion, was also null and void. Findings on issue (e) [114] The partition of the Original Land and the issuance by D4 of the titles for the 1st Partitioned Portion and the 2nd Partitioned Portion were null and void because of the forged documents. Accordingly, I find that the registration of the names of P1, the Deceased and D1 on the title of the 1st Partitioned Portion, and D1 on the title of the 2nd Partitioned Portion are null and void at law. [115] Section 340(2) of the NLC states that the title or interest of a person of any land is not indefeasible in the following situations: Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 44

in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or

where registration was obtained by forgery, or by means of an insufficient or void instrument; or

where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law. [116] This Court has found that both D1 and D2 were party and/or privy to the fraud and forgery relating to the application for the partition of the Original Land. The titles to the 1st Partitioned Portion and the 2nd Partitioned Portion were obtained by means of fraud and forged instruments. [117] It follows, therefore, that the registration of the P1, the Deceased and D1’s names on the 1st Partitioned Portion and the 2nd Partitioned Portion are defeasible pursuant to section 340(2)(a) and (b) of the NLC and should, accordingly, be set aside. Issue (f): whether D2 failed, refused and/or was negligent in discharging his responsibility and duty of care as a licensed land surveyor under Lembaga Jurukur Tanah Malaysia; [118] D2 is a land surveyor, licensed under Licensed Land Surveyors Act 1958 (Act 458) (“the 1958 Act”). As a licensed land surveyor, D2 is obliged to comply with the Licensed Land Surveyors Regulations 2011 (the “2011 Regulations”). Sub-regulation 29(1) of the 2011 Regulations sets out the code of professional conduct of licensed land surveyors. It reads: 29 Code of professional conduct

Every licensed land surveyor shall:

comply with the provisions of the National Land Code 1965, the Act, any rules and regulations made thereunder and any other written laws in force related to his professional duties; Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 45 ………………

not be dishonest or fraudulent in discharging of his professional duties; ………………

not certify, affix or put his signature to drawings or plans which are not prepared by him or under his supervision for the purpose of obtaining approval from any authority; [119] Pursuant to the 1958 Act, every licensed land surveyor must comply with all the provisions in sub-regulation 29(1) of the 2011 Regulations. Pursuant to regulation 31(b) of the 2011 Regulations, non-compliance with any provision of the code of professional conduct under sub-regulation 29(1) is a professional misconduct. [120] As discussed in paragraph [102] above, pursuant to section 5 of the NLC, a pre-computation plan must be prepared either by the Director of Survey and Mapping or a licensed land surveyor. Under sub-regulation 29(1)(h) of the 2011 Regulations, D2, as a licensed land surveyor, is prohibited to certify, affix or put his signature to drawings or plans that were not prepared by him or under the supervision to obtain approval from the authority. [121] However, the evidence shows that the impugned plan was not prepared by D2 or under his supervision. The impugned plan was instead prepared by Liza, a “pelukis plan” under the supervision of DW2, who is a “pembantu jurukur” and not a licensed land surveyor. [122] Under section 5 of the NLC, a pre-computation plan must show the intended new boundaries and areas of the lots based on computation from existing survey data or other relevant data. However, in this instant case, the impugned plan submitted to D3 and D4 was not prepared based on computation from existing survey data or any other relevant data. Neither Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 46 DW2 nor Liza had visited the Original Land prior to drawing the impugned plan: DW2 admitted under cross-examination that he and Liza had not gone to the site of the Original Land to take measurements of the land. Instead, the plan was prepared based on information provided by the Malay man, whose name DW2 claims he cannot remember. It follows, therefore, that the impugned plan was not a “pre-computation plan” as defined under the NLC. [123] Additionally, D2, in breach of sub-regulation 29(1)(h) of the 2011 Regulations, had affixed his signature on the impugned plan, even though he had not prepared the plan and the plan was not prepared under his supervision – the facts show that the plan was drawn by Liza and reviewed by DW2. [124] Nonetheless, D2 had represented to D3 in MHS’ letter of 17.09.2009 that the impugned plan was a “pre-computation plan” and had requested D3 to approve the plan. In doing so, D2 was dishonest and/or fraudulent in discharging his professional duties and was in breach of the code of professional conduct in sub-regulations 29(1)(a), (e) and (h) of the 2011 Regulations. [125] Furthermore, D2 had failed to prove that he was instructed by P1 and any of the other co-proprietors of the Original Land to submit copies of the impugned plan to D3 and to make the application for the partition of the Original Land to D4. DW2 had confirmed during the trial that D2 was not appointed by P1. [126] Accordingly, based on these facts, I find that D2 had failed to comply with the provisions of the NLC in making the application for the Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 47 partition of the Original Land. He had also breached the 1958 Act and sub-regulations 29(1)(a), (e) and (h) of the 2011 Regulations. [127] Further, I find that D2 was also dishonest and/or fraudulent when he informed D4 in his application letter of 12.10.2010 that the impugned plan he had submitted was a “pre-computation plan” and that he was appointed by the owners of the Original Land “En. Jahit Bin Rahmat & Rakan-Rakan” to submit the application for the subdivision and partition of the Original Land. [128] In addition to his statutory duty to comply with the provisions of the NLC, the 1958 Act and the code of professional conduct in the 2011 Regulations, D2, as a licensed land surveyor also owed P1 and the Deceased as co-proprietors of the Original Land, a duty of care to ensure that he did not apply to partition their land without their approval or that of the Other Co-Owners. He also had a duty not to act dishonestly or fraudulently. [129] By (i) making the application to D3 for the approval of the forged impugned plan; (ii) making the application to D4 for the partition of the Original Land; (iii) by dishonestly and/or fraudulently representing to the authorities that he acted for “Encik Jahit bin Rahmat dan rakan-rakan”; and (iv) by using forged documents in making the application, D2 had breached his duty of care to P1 and the Deceased. The evidence shows that D2’s breach of the duty of care, had caused damage to P1 and the Deceased’s estate— their houses on the land are at risk of being demolished and they at risk of being evicted from the land on which they and/or members of their family have lived on since 1965. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 48 Findings on issue (f) [130] Accordingly, for these reasons, I find that D2 had breached his statutory duties and duty of care as a licensed land surveyor. Issue (g): Whether D3 had failed and/or was negligent in discharging its responsibility and duty of care in providing the pre-computation plan (plan pra-hitungan) for the application for the partition? [131] The Plaintiffs’ pleadings did not disclose a cause of action for negligence against D3 — they did not plead the particulars of D3’s negligence. They also did not plead that D3 was negligent in approving the impugned plan as a “pre-computation plan”. In their prayers, the Plaintiffs had prayed against D3 for an injunction restraining D3 from demolishing the houses of Plaintiffs and their extended families. They also sought for an interim injunction pending the disposal of this action to restrain D3 from evicting the Plaintiffs from the 2nd Partitioned Portion. [132] It is trite law that parties are bound by their pleadings. The Federal Court in Samuel Naik Siang Ting v Public Bank Berhad [2015] 6 MLJ 1; [2015] 8 CLJ 944; [2018] 3 AMR 259 held that it is a cardinal rule in civil litigation that parties are bound by their pleadings: they are not allowed to adduce facts and issues which they have not pleaded. The Court of Appeal in Aseambankers Malaysia Bhd & Ors v Shen Court Sdn Bhd [2014] 4 MLJ 619; [2014] 2 CLJ 773; [2014] AMEJ 0069 held that a Court is not entitled to decide a suit on a matter that is not pleaded. [133] Although in this instant case, the plaintiffs had raised the issue of negligence against D3 in the issues to be tried, the fact remains that they did not plead negligence against D3 in their statement of claim. The Court of Appeal in Tan Keng Yong @ Tan Keng Hong & Anor v Tan Hwa Ling Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 49 @ Tan Siew ling @ Ors [2022] 2 MLJ 805; [2022] 2 AMR 557; [2022] 3 CLJ 274 held that parties could not rely on the agreed issues to be tried to establish or prove their case if the matter had not been pleaded. Findings on issue (g) [134] It follows, therefore, this Court cannot make a finding of negligence against D3 for approving the impugned plan as a pre-computation plan since it was not pleaded by the plaintiffs against D3. Issue (h): whether D4 failed, refused and/or was negligent in discharging its responsibility and duty of care as Land Administrator in the application for the partition and/or the registration of title of the 1st Partitioned Portion and the 2nd Partitioned Portion? [135] The Plaintiffs’ case against D4 is that as the Land Administrator, D4 has the duty to ensure that the partition of the Original Land and/or the registration of the titles for the 1st Partitioned Portion and the 2nd Partitioned Portion were not in contravention with any written law. [136] D4’s defence is seven-fold. The learned Selangor State assistant legal advisor (“ALA”) argued the following in D4’s defence: 1) D4 had acted legally and in order in accordance with the applicable law at the material time in processing the application for the partition of the Original Land; 2) As the original issue document of title for the Original Land had been delivered to D4 in the application for the partition, D4 had no reason to suspect any suspicious circumstances in the application and had proceeded to process the application; 3) The plaintiffs failed to inform D4 of the Deceased’s death; Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 50 4) D4 does not have the responsibility to investigate behind the Borang 9B and to ensure that the parties named in the Borang 9B were the correct parties; 5) The identity card for the Deceased was still a valid and could be accepted for the application for the subdivision and partition of the Original Land pursuant to Regulation 2 of the National Registration Regulations 1990 (“NR Regulations 1990”); 6) D4 is entitled to avail itself to the statutory protection of officers under section 22 of the NLC; and 7) The plaintiffs failed to prove all the elements of the tort of negligence against D4. [137] D4, in paragraphs 6(d), (g) and (h) of its statement of defence, pleaded that upon checking and examining the application, in particular the impugned plan and the Borang 9B submitted by D2, it found that:

both the impugned plan and the Borang 9B were signed by all the co-proprietors of the Original Land, including P1: para. 6(d);

it was satisfied that all the co-proprietors of the Original Land including P1, had given their written consent for the said application and that the Borang 9B was an instrument that qualified for registration: para. 6(g); and

at the material time, D4 did not suspect any suspicious circumstances as regards the documents presented including the impugned plan and the Borang 9B, and in good faith accepted that Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 51 all the signatures on the impugned plan and the Borang 9B were the signatures of the co-proprietors of the Original Land. [138] D4, however, did not plead that it had examined the copies of co-proprietors’ identity cards that were submitted by D2 with the application. [139] D4’s witness, Sazatul Faeza binti Alias (“DW4”) was the officer who had processed the application in the partition of the Original Land in 2010. She held the position of Penolong Pegawai Daerah (Pembangunan Tanah) di Pejabat Daerah/Tanah Klang from 05.02.2007 until 15.03.2015. DW4 in her answer to QA4 in her witness statement, stated that she had received the following documents from D2 in relation to the application:

12 salinan pelan pra hitungan ruj: MHS/GMS/0965-PH(01)(“Pelan”);

3 salinan Borang 9B (Permohonan untuk Memecahkan Bahagian

Wang tunai sebanyak RM100.00 sebagai bayaran pendaftaran;

1 salinan sijil carian rasmi bagi hakmilik Hartanah Terdahulu;

1 salinan penyata cukai tanah 2010;

1 salinan hakmilik Hartanah Terdahulu;

8 salinan kad pengenalan pemilik-pemilik Hartanah Terdahulu; dan

Surat kelulusan daripada Majlis Perbandaran Klang. [140] D4’s case is that it had acted in good faith and there was no reason for DW4 who was D4’s officer who had processed the application for the partition, to suspect any suspicious circumstances in the application. [141] For the reasons discussed below, this Court is unable to agree with D4 that it had acted in good faith in discharging its duty under the NLC in processing and approving the application and that there were no suspicious circumstances in respect of the application. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 52

The Co-Proprietors’ Identity Cards [142] I found DW4 to be a less than candid witness — she was defensive and evasive. As is apparent from the notes of proceedings of the trial, under cross-examination by the plaintiffs’ counsel, DW4 resolutely refused to answer whether she had examined the copies of the co-proprietors’ identity cards submitted with the application. [143] DW4’s answers to the Plaintiff’s counsels’ questions on whether she had examined the copy of the Deceased’s identity card were either “mungkin” and “kurang pasti”. Even when asked the simple question by the plaintiff’s counsel of whether she had examined the copies of the identity cards, she answered “kurang pasti”. I then asked DW4, when she answered “kurang pasti” did she mean she was unsure whether she had checked the copies of the identity cards, she refused to answer my question but instead claimed that she was confused by the question! When Plaintiffs’ counsel rephrased the question to suggest that she did not examine the identity cards, DW4 disagreed with the suggestion. This can be seen in the excerpt below of DW4’s answers during cross-examination: Plaintiffs’ Counsel: Puan tak semak kad pengenalan tersebut yang tadi Puan kata dokumen yang wajib untuk dikemukakan? Kurang pasti. Plaintiffs’ Counsel: Saya juga mencadangkan …….. Judge: Maaf. Maknanya Puan kurang pasti sama ada Puan semak atau tidak? Adakah itu jawapan Puan? Saya keliru dengan soalan sebenarnya. Judge: Okay. Tolong tanya semula. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 53 Plaintiffs’ Counsel: Baik. Yang Arif. Puan kata dekat situ [answer to QA5 in DW4’s witness statement] “Saya tidak mengesyaki sebarang perkara yang mencurigakan” dan Puan kata kerana Puan kata pemilik hartanah terdahulu pada pelan dan Borang 9B adalah sama? Betul? Betul. Plaintiffs’ Counsel: Maksudnya, setuju dengan saya bila Puan tulis jawapan begini Puan tidak semak pun kad pengenalan tadi yang saya soal di awal tadi? Setuju? Tidak sebab ……. tidak. [144] Despite resolutely refusing to answer Plaintiff’s counsel’s questions during cross-examination as to whether she had examined the copies of P1’s, the Deceased’s and the Other Co-Owners’ identity cards, D4 during re-examination by the ALA said that she had examined the copies of identity cards. [145] Nonetheless, what is evident from D4’s answer to the ALA during re-examination is that all she did was compare that the details (butiran) on the copies of identity cards were the same as that on the impugned plan, the Borang 9B and the issue document of title of the Original Land. DW4 told this Court that to her, in an application for partition of land, what is important is the signature of the owners — in that the signature of the landowners were on the Borang 9B and the impugned plan submitted by D2. The excerpt of DW4’s testimony is reproduced below: D4’s Counsel: Tadi peguam ada cadangkan bahawa dalam permohonan pecah bahagian ini Puan hanya merujuk kepada …… hanya menyemak kepada pelan dan Borang 9B sahaja tetapi tidak menyemak kad pengenalan tadi Puan jawab tidak setuju. Boleh jelaskan kenapa tak setuju? Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 54 Kerana kita telah ….. saya telah menyemak salinan-salinan kad pengenalan tersebut. Cuma yang kita telah pastikan pada salinan tersebut adalah butirannya sama denga nama yang ternyata dalam permohonan. Maksudnya yang sama di atas Borang 9B dan juga butiran tersebut adalah sama di atas pelan yang telah ditandatangani dan butiran-butiran pemilik tanah tersebut juga adalah sama seperti yang dinyatakan dalam geran tanah asal. D4’s Counsel: Peguam juga ada cadangkan oleh kerana Puan tidak menyoal tentang kad pengenalan Nabiba tersebut yang berbeza dengan kad pengenalan pemilik tanah yang lain Puan tidak menjalankan tugas administrative dengan betul. Puan jawab tidak bersetuju. Boleh jelaskan kenapa tak setuju? Saya tidak setuju kerana untuk permohonan pecah bahagian tanah apa yang penting …….. yang penting mesti ada adalah tandatangan pemohon, tandatangan pemilik tanah di mana tandatangan pemilik tanah telah pun ada pada Borang 9B dan juga pada pelan tanah tersebut yang telah dikemukakan oleh MHS Consultant kepada kita. [Emphasis added] [146] In my view, if indeed DW4 had checked the details on the copies of the identity cards as she told the ALA during re-examination, she would have noticed the following:

On the impugned plan (exhibit “P1”), the Deceased’s identity card number was not stated. The “No.KP” under the Deceased’s name was left blank. The identity card numbers for Saada binti Jarkasi and Zohdi bin Haji Abdul Manan were left blank too; and

On the Borang 9B (exhibit “D3”), the identity card numbers for the Deceased, Saada binti Jarkasi and Zohdi bin Haji Abdul Manan were also left blank. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 55 [147] D4 would also have noticed that copy of the Deceased’ identity card (unlike the copies of P1’s and the Other Co-Owners’ identity cards) was the old identity card. It was not the new identity card (the MyKad), and it did not contain all the particulars made compulsory by NR Regulations 1990 with effect from 1.11.2000. [148] The learned ALA argued that the Deceased’s identity card was still valid and could be used in the application to partition the Original Land based on Reg. 2 of the NR Regulations 1990. With respect to the ALA, I am unable to agree with her that the Deceased’s identity card was still valid when the application was made in 2010. In making that argument, the learned ALA had ignored the amendments to the NR Regulations 1990 as amended by the National Registration (Amendment) Regulations 2000 (PU(A) 70/2000)(the “NR (Amendment) Regulations 2000”) and National Registration (Amendment) Regulations 2001 (PU(A) 232/2001)(the “NR (Amendment) Regulations 2001”). [149] “Identity card” is defined in Reg. 2 of the NR Regulations 1990 as follows: "identity card" means an identity card or a Government multipurpose card issued under subregulation 5(1), any temporary identity document issued under subregulation 5(5) and paragraph 7(3)(b), and includes any replacement identity card issued under regulation 13, 14, 15 or 18, as the case may be, and any identity card issued before the operation of these Regulations; [150] Reg. 5(2) of the NR Regulations 1990, as amended by NR (Amendment) Regulations 2000 and the NR (Amendment) Regulations 2001 reads:

An identity card shall contain the particulars as prescribed in the First Schedule or Schedule 1A, as the case may be, and such other particulars as may be necessary for the identification of the person to whom it is issued. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 56 [Emphasis added] [151] The particulars that must be contained in an identity card are set out in the First Schedule of the NR Regulations 1990 as below: First Schedule (Regulation 5(2)) FORM OF IDENTITY CARD An identity card shall contain the following particulars: Obverse: Identity Card Number Name Residential Address Date of Issuance of Identity Card/Expiry Date for Replacement Identity Card Old Identity Card Number, if any Identity Code for Native of the State of Sabah or Sarawak Citizenship or Residential Status Religion (only for Muslims) Holder's Photograph Reverse: Signature of Director General of National Registration Left Thumb Impression Right Thumb Impression Holder's former name, if any, shall be as registered in the Birth Certificate issued under the law relating to the registration of births and deaths or in an Adoption Certificate issued to a child or a person so adopted under the law relating to the registration of adoption or in the Citizenship Certificate issued under Part III of the Federal Constitution, but the manner in which the name is to be printed on the identity card shall be as determined by the Director General. Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors 57 [152] The amendments to the First Schedule of the NR Regulations 1990 by the NR (Amendment) Regulations 2000 came into effect on 1.10.1999 and by NR (Amendment) Regulations 2001 came into effect on 1.11.2000. The Deceased died in 2003 i.e., after the amendments to the First Schedule of the NR Regulations 1990 came into effect. Accordingly, the Deceased’s identity card must contain the particulars set out in the First Schedule of the NR Regulations 1990, listed in para. [151] above. Below is an image of the copy of the Deceased identity card that was submitted to D4 by D2 in March 2010: [153] Regulation 5(2) of the NR Regulations 1990 states that an identity card “shall contain the particulars as prescribed in the First Schedule or