Kwan Ngen Wah v Julita Binti Tinggal (S-02(NCvC)(A)-1899-09/2018)

This is an appeal against the decision of the High Court sitting in Kota Kinabalu. The High Court granted the judicial review application by the respondent (Julita Binti Tinggal) to quash the judgment of Justice Ismail Brahim who sat as the presiding judge of the three-member panel of the Native Court of Appeal. Consequently, the judgment of the remaining two lay members of the Native Court of Appeal who dissented from the judgment of Justice Ismail Brahim was declared as the final judgment. S/N l5Lyfe7JS02uCbgADJabg **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

The instant dispute is about native status of the first appellant and Kwan Ngen Chung (deceased) who is represented by his administratrix, the second appellant. For ease of reference, we shall refer to them collectively as the appellants.

Under section 3(1) of the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap.64), a person claiming to be native may apply to a Native Court established under the Native Courts Enactment 1992 for a declaration to that effect. Under section 3(2), the Native Court has exclusive jurisdiction to determine the application and grant a declaration to that effect. The judgment of the Native Court under section 3(3) is subject to review and scrutiny, and appeal to the District Officer or a Board of Officers appointed by the Yang Di-Pertua Negeri. Section 3(4) enacts that any decision under subsection (1) shall be conclusive evidence for all purposes in respect of the matter or matters to which it relates.

This provision was availed of by the appellants a long time ago. In September of 1979, they applied for native status at the Kota Kinabalu Native Court. They were successful. The declaration of native status was scrutinized and endorsed as correct by the District Officer. Both respondents were issued “Native Certificates” by the Native Court. The Native Court that heard the application of the appellants was constituted by the predecessor of the Native Courts Enactment 1992, i.e. the Native Courts Ordinance 1953 (Cap.86). S/N l5Lyfe7JS02uCbgADJabg **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

The Native Certificates of the appellants were challenged some 37 years later against the backdrop of a rival claim to native lands. In 1992, the appellants purchased 46 parcels of native title lands from their owners. They took possession of the lands. They developed an oil palm plantation on it. The titles were not issued at that time. Titles were issued to the 46 land owners in 2001. But a third party by the name of Abdul Hamid Duli managed to become the registered owner. He sold the lands to a non-native by the name Vun Yun Lau @ Vun Yun Liew Tony who caused the lands to be registered in the name of his sister in law who is the respondent herein (Julita binti Tinggal).

Julita binti Tinggal sold the lands to one Hiew Kon Fah in 2005 who commenced an action in the High Court sitting in Sandakan in Suit No. S22-27-2005 against the appellants to recover possession. In that suit, Hiew Kon Fah challenged the native status of the appellants. Under the Sabah Land Ordinance 1930 (Cap.68), only a native is entitled to purchase native title land. The High Court rejected the challenge to the native status of the appellants. It held that the jurisdiction to determine the native status belonged to the Native Court. The claim of Hiew Kon Fah was dismissed and the counterclaim of the appellants herein (respondents in the Sandakan in Suit No. S22-27-2005) was allowed on 28.10.2011. Hiew Kon Fah’s appeal to the Court of Appeal was unsuccessful and the matter is now pending before the Federal Court.

Julita binti Tinggal then filed an application to the District Native Court on 27.3.2017 at Kota Kinabalu to challenge the Native Certificates of the appellants that were issued on 12.5.1979. The District Native Court is the middle tier court in the native court system. It is presided by the District Officer and two members who are District Chiefs or Native Chiefs. S/N l5Lyfe7JS02uCbgADJabg **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 Below it is the Native Court that is presided by a District Chief and two members from the ranks of Native Chiefs. Above it is the Native Court of Appeal which is presided by a High Court Judge and two members from the ranks of District Chiefs or Native Chiefs. Lawyers may not appear for any party in the Native Court or District Native Court. However, they may represent any party at the Native Court of Appeal provided they are registered as a “Native Court of Appeal advocate” in accordance with prescribed procedure.

The application of Julita binti Tinggal was made under section 16(1) of the Native Courts Enactment 1992. The District Native Court did not decide the matter immediately. It decided some four years later after giving short notice to the appellants. On 19.5.2016, it decided that the native certificates were forged and were invalid. The appellants were aggrieved by this decision. They filed an appeal to the Native Court of Appeal. It was presided by Justice Ismail Brahim and two members (Matsah bin Sahat and Awang Hanib bin Kassim) who are Native Chiefs. Parties were represented by legal counsel at the appeal hearing.

The Native Court of Appeal delivered its judgment on 14.7.2017. The two lay members were of the opinion that the District Native Court had jurisdiction in the matter of the application of Julita binti Tinggal to revise the decision of the Native Court that issued the native certificates in question in 1979. They found that the Native Certificates were fake and/or irregular as the appellants had admitted in another suit that their parents came from China. They dismissed the appeal and affirmed the decision of the District Native Court. On the other hand, Justice Ismail Brahim only dealt with a question of law. He held that section 16 of the Native Courts Enactment 1992 does not have retrospective effect and S/N l5Lyfe7JS02uCbgADJabg **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 therefore the District Native Court did not have jurisdiction to hear the application of Julita binti Tinggal to invalidate the Native Certificates in question. In coming to this conclusion, Justice Ismail Brahim adopted the view of Justice Douglas Cristo Primus Sikayun who presided in the Native Court of Appeal in the case of Ungkari bin Ikus v Hon Chung Lip (Case No.BKI-47-10/12-2015.

The issue in the Ungkari case was the same as in the instant appeal. The applicant attempted to invalidate the native certificate issued to the respondent in 1981. The application for revision was made under section 16 of the Native Courts Enactment in 2011. Justice Douglas Cristo Primus Sikayun observed that section 16 which granted wide powers of revision to the District Native Court had no equivalent in the predecessor Native Courts Ordinance 1953. Under the repealed Ordinance, the District Officer had limited powers to scrutinize the decision of the Native Court. Citing the Federal Court case of Datuk Syed Kechik bin Syed Mohamed v Government of Malaysia [1979] 2 MLJ 101, His Lordship held that under section 3(3) of the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap.64), an appeal lies against the declaration of native status and since there was no appeal, the native certificate is final and conclusive. His Lordship also held that nothing in the Native Courts Enactment 1992 suggests that it has retrospective effect. In respect of section 24, Justice Douglas Cristo Primus Sikayun expressed the view that the role of the two lay members was confined to matters of native law and custom only.

After deciding the jurisdiction point in respect of section 16 of the Native Courts Enactment 1992, Justice Ismail Brahim held that as the matter did not involve native law or custom, he is not required to seek the S/N l5Lyfe7JS02uCbgADJabg **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 opinion of the lay members and declared his judgment as the final judgment of the Native Court of Appeal. His Lordship followed the decision of Justice Douglas Cristo Primus Sikayun in the Ungkari case on this point as well. Justice Douglas Cristo Primus Sikayun’s view was also endorsed by Justice Mairin bin Idang @ Martin at the High Court in the judicial review case of Jamili Bin Mohiman v Lim Nyuk Foh and anor [2019] MLRHU 1635.

Julita binti Tinggal filed the instant judicial review application to reverse the judgment of Justice Ismail Brahim who sat as the presiding judge of the Native Court of Appeal. The two main reliefs sought in the judicial review are as follows:

An order of certiorari to quash the decision of Justice Ismail Brahim as the final judgment and

A declaration that the judgment of the two native chiefs be recorded as the final judgment. [13] The learned High Court Judge gave careful consideration to section 24 of the Native Courts Enactment 1992. The provision reads as follows: Judgement of appellate Court.

The judgement of an appellate Court shall be unanimous or that of the majority of its members. [14] Under section 2, an “appellate Court” means a District Native Court or the Native Court of Appeal. Her Ladyship held that since the provision is unambiguous, Justice Ismail Brahim had acted contrary to section 24 in recording his judgment as the final judgment of the Native Court of Appeal. Her Ladyship further held that the lay members who are Native Chiefs S/N l5Lyfe7JS02uCbgADJabg have equal standing under the Native Courts Enactment 1992. Her Ladyship then declined to determine the jurisdiction issue in relation to section 16 and granted the order to quash the judgment of Justice Ibrahim Brahim. Her Ladyship also granted a declaration that the majority judgment be recorded as the final judgment. Issues [15] Before us the two main issues argued are whether section 24 should be given a literal meaning in that regardless of the subject matter of the judgment, all members of the Native Court of Appeal should have equal say and whether District Native Court that invalidated the Native Certificates of the appellants had jurisdiction to do so in the first place. We shall first determine the jurisdiction point. Jurisdiction [16] In our view, the District Native Court did not possess jurisdiction to invalidate the Native Certificates. Our reasons are as follows. [17] The jurisdiction of the Native Court in Sabah is set out in section 6 of the Native Courts Enactment 1992 which reads as follows:

(1) Every Native Court shall exercise original jurisdiction to the extent set forth and subject to the provisions of this Enactment to hear, try, determine and dispose of the following cases:

cases arising from breach of native law or custom in which all the parties are natives; S/N l5Lyfe7JS02uCbgADJabg

cases arising from breach of native law or custom, religious, matrimonial or sexual, if the written sanction of the District Officer acting on the advice of two Native Chiefs has been obtained to the institution of the proceedings, where one party is a non-native;

cases involving native law or custom relating to-

betrothal, marriage, divorce, nullity of marriage and judicial separation;

(ii) adoption, guardianship or custody of infants, maintenance of dependants and legitimacy;

(iii) gifts or succession testate or intestate; and

other cases if jurisdiction is conferred upon it by this Enactment or any other written law. (emphasis supplied) [18] The italicised words to which we have drawn attention circumscribes the width of the jurisdiction of the Native Courts. Section 6 emphatically states that the jurisdiction of the Native Courts is only to “the extent set forth” and “subject to the provisions this Enactment”. Section 6(1)(d) states the Native Court has jurisdiction if it is conferred by the Enactment or “any other written law”. Section 3 of the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap. 64) is an instance of jurisdiction being conferred on the Native Court by “other written law”. However, as noted earlier, it only confers jurisdiction to the Native Court to determine the native status of a person. Section 3 does not confer the power to the Native Court or any appellate Native Court to revisit or revise the Native Certificates issued under it. [19] We shall now turn to the jurisdiction and powers of the District Native Court under the Native Courts Enactment 1992. Section 16 and 17 of the S/N l5Lyfe7JS02uCbgADJabg Native Courts Enactment 1992 provides for the powers of the District Native Court. Section 16 provides for its revisionary jurisdiction over the Native Court whereas Section 17 sets out its appellate powers. In addition, section 21 states that the appellate courts shall have all the powers and privileges of a Native Court. Under section 2, the appellate court means the District Native Court and the Native Court of Appeal. [20] In the instant case, Julita binti Tinggal applied to the District Native Court to invoke its revisionary power under section 16 to invalidate the Native Certificates in question. Section 16 reads as follows: Power of revision.

(1) All proceedings of every Native Court shall be subject to revision by the District Native Court which, if it considers that such proceedings are irregular, improper or unconscionable, may quash or vary the same or direct a rehearing.

A District Native Court may call for and examine the record of proceedings of a Native Court for the purpose of satisfying itself as to the correctness, legality or propriety of any order recorded or passed and as to the regularity of any proceedings of such court.

In exercising its powers of revision, a District Native Court shall have the discretion whether to allow the parties involved a right to be heard: Provided that no final order shall be made to the prejudice of any person unless such person has had an opportunity of being so heard. [21] This is a general provision conferring revisionary power to the District Native Court as it is above the Native Court in the native court system. It must be observed that there is no specific mention of the power S/N l5Lyfe7JS02uCbgADJabg to revisit Native Certificates that were issued by the Native Court under another law, i.e. the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap.64). In our opinion, the argument of the respondent that the District Native Court can revise Native Certificates issued under the general revisionary power in section 16 is not tenable for the following reason. Under section 3(3) of the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap.64), revisionary and appellate power in respect of Native Certificates issued by the Native Court is specially conferred on the District Officer or to the Board of Officers appointed for that purpose by the Head of State. The provision reads as follows: 3(3). Any declaration of any Native Court made in the exercise of the jurisdiction conferred upon it by subsection (2) shall be subject to review and scrutiny by, and appeal to the District Officer or a Board of officers appointed by the Yang di-Pertua Negeri for the purpose. [22] It must be noted that this is a comprehensive provision that gives oversight role to the District Officer or Board of Officers in relation to the Native Court’s power to issue Native Certificates. It not only provides for “review and scrutiny” but also provides an avenue for “appeal” to the District Officer or the Board of Officers. The role of the Board of Officers was discussed by this court in the case of Madlis Azid v Board of Officers & Ors [2015] 3 CLJ 168. In that case, the appellants claimed that the Native Certificate of the third respondent was forged or did not exist. They applied to the Board of Officers (the third respondent) to review the Native Certificate. The question that arose in the appeal was whether a third party apart from an applicant who claims native status can apply for review of the Native Certificate to the Board of Officers. The Court of Appeal by a majority answered the question in the affirmative. We are mindful that the issue at hand is different. Nonetheless, the point to note is that in that S/N l5Lyfe7JS02uCbgADJabg case, the court recognised that an avenue for revision or appeal (even by third parties) exists in section 3(3) of the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap.64). But as we said earlier, this avenue must be availed of before the District Officer or the Board of Officers appointed for that purpose. [23] The majority judges in the above-mentioned case also cited Datuk Syed Kechik Syed Mohamed v Government of Malaysia & Anor [1978] 1 LNS 44 and said that if there is no appeal against the declaration of native status, the declaration becomes final and binding under section 3(4) of the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap.64). [24] We also note that section 3(2) and (3) came into its present form with effect from 1.1.1983 (see Enactment 10/1983). Therefore, when the Native Courts Enactment 1992 came into force on 1.4.1993, the Sabah Legislature must be deemed to be aware of the provision for revision and appeal in respect of Native Certificates in section 3(3) of the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap.64). However, no provision was made to remove the power given to the District Officer or the Board of Officers in section 3(3) of the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap.64) or to confer concurrent power in respect of the same matter to the District Native Court. [25] In the premises, we are of the view that the principle of generalia specialibus non derogant should apply in this case and deprive the District Native Court of jurisdiction to revisit the legality of Native Certificates. The proper authority that has jurisdiction in the matter is the District Officer or the Board of Officers set up for that purpose under section 3(3) of the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap.64). S/N l5Lyfe7JS02uCbgADJabg Thus, section 16 of the Native Courts Enactment 1992 is a general provision that grants supervisory authority to the District Native Court over the Native Court. It cannot supplant the authority of the District Officer or the Board of Officers under section 3(3) of the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap.64). [26] We are also of the view that Justice Ismail Brahim correctly held that section 16 of the Native Courts Enactment 1992 cannot be invoked to invalidate Native Certificates issued in 1979 as it has no retrospective effect. Nothing in the Enactment suggests it has retrospective effect. There is no equivalent of section 16 which gives broad powers of revision in the repealed Native Court Ordinance 1953. The District Native Court did not exist either under the old Ordinance. Appeals from a Native Court under the Ordinance was to a District Officer. Section 8 of the repealed Ordinance provided that all decisions of the Native Court are subject to “scrutiny” of the District Officer. It reads as follows:

All proceedings of Native Court shall be subject to scrutiny by the District Officer who, if he considers that such proceedings are irregular, improper or unconscionable, may quash or vary the proceedings or a direct a rehearing. [27] The power to scrutinize proceedings of the Native Court in section 8 is similar to the power vested in section 3(3) of the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap. 64) in the District Officer. This power was exercised by the District Officer in 1981 as the Native Certificates of the appellants bear his endorsement “Diperiksa and didapati betul” (Scrutinized and found to be correct) which are the statutory words found in the prescribed format of the Native Certificate under Native Courts (Declaration of Native) Interpretation Rules 1958. Thus, from 1979 to 1992, it would not have been possible under any S/N l5Lyfe7JS02uCbgADJabg provision of the Native Court Ordinance 1953 to revisit the Native Certificates in question. An appeal by any interested party could have been made to the District Officer or Board of Officers under section 3(3) of the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap.64) but it was never done. Therefore, by virtue of section 3(4), the Native Certificates have become “conclusive”. The provision reads as follows:

The final decision on any application made under subsection (1) shall be conclusive evidence for all purposes in respect of the matter or matters to which it relates. [28] In the premises, the invocation of section 16 of the Native Courts Enactment 1992 to revisit the validity of the Native Certificates in question is only permissible if it had been made clear that it has retrospective effect. This is because it would impair the existing rights of the holder of the Native Certificates in question. [29] We would therefore agree with the judgment of Justice Ibrahim Brahim at the Native Court of Appeal in this case and the judgment of Justice Douglas Cristo Primus Sikayun at the same court in the Ungkari case that section 16 of the Native Courts Enactment 1992 does not have retrospective application in that it can be invoked to review Native Certificates that were issued before it came into force. We also agree with the following observation of Justice Douglas Cristo Primus Sikayun: If the intention of the State Legislature is to equip and empower the Native Courts with powers of revision and review for any rulings, orders or decisions made prior to 1992, it must then be clearly stated. There must be a safeguard measure to sieve litigious matters, matters such as limitation of time must be considered and taken into account. Further issues of void and voidability must be resolved and settled by the legislators and should not be left to the courts to grapple and unravel. Even the High Court does not have an unlimited S/N l5Lyfe7JS02uCbgADJabg revisionary and review powers. It can be an unruly horse. It is always subject to restrictions. [30] In concluding that section 16 cannot be availed of by Julita binti Tinggal to challenge the Native Certificates in question, we have also considered the import of section 31 of the Native Courts Enactment 1992 which repealed the Native Court Ordinance 1953 and provided some saving measures in respect of the continuity of the operation of the Native Courts and the validity of its past orders. It reads as follows:

any Native Court established under a warrant issued under the repealed Ordinance and exercising jurisdiction immediately prior to the commencement of this Enactment shall be deemed to be a Native Court constituted under this Enactment having territorial jurisdiction set out in the warrant of such court;

any District Chief, Native Chief and Headman empowered by the State Secretary under the repealed Ordinance to adjudicate in any Native Court established therein shall be deemed to be so empowered under this Enactment until the same is revoked;

any pending cases validly instituted before any Native Court or any appellate authority established under the repealed Ordinance shall continue to be heard, dealt with and disposed of by the corresponding court constituted under this Enactment in like manner as if the same were commenced under the provisions of this Enactment;

any order validly made by any Native Court or any appellate authority established under the repealed Ordinance shall continue to be valid and enforceable under this Enactment as if the same were made by the corresponding court constituted thereunder; and

any subsidiary legislation made under the repealed Ordinance shall in so far as it is not inconsistent with this Enactment continue to be in force and S/N l5Lyfe7JS02uCbgADJabg have effect as if the same had been made hereunder and may be repealed, varied or amended under this Enactment. [31] By virtue of this provision, it can be argued that the present day Native Court, the District Native Court and the Native Court of Appeal are the successor courts of the Native Court, Office of the District Officer and the Native Court of Appeal under Native Court Ordinance 1953. Nonetheless, the equivalent of section 16 of the Native Courts Enactment 1992 which gave very broad powers of revision did not exist in the old Ordinance. Furthermore, section 3(3) of the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap.64) provides for the finality of Native Certificates in question if there is no appeal under the same provision. For this reason, even if the District Native Court is viewed as a successor court of the Office of the District Officer, we do not think that a successor court can re-open previous decisions without limitation of time and impair vested substantive rights as stated in the Ungkari case. By comparison, in section 20, the time limited for appeal is only 60 days. In the instant case, the challenge to the Native Certificates were mounted some 37 years later because of a competing claim in respect of transactions involving native lands. [32] For all the above reasons, we are of the view that regardless of the merit of the case, the District Native Court acted in excess of jurisdiction when it admitted the application of Julita binti Tinggal to invalidate the 37- year old Native Certificates of the appellants. The majority lay members in the Native Court of Appeal committed the same error. S/N l5Lyfe7JS02uCbgADJabg Section 24 of the Native Courts Enactment 1992 [33] As we pointed out earlier, section 24 enacts that the judgment of the Native Court of Appeal shall be unanimous or by a majority. The learned High Court Judge gave a plain literal reading to the provision and declared that the final judgment is the judgment of the majority members, i.e. the lay native chiefs. [34] With the greatest of respect, we are of the opinion that Her Ladyship erred in not considering the jurisdiction point and the legislative purpose of empanelling a High Court Judge to sit in the Native Court of Appeal. Our reasons are as follows. [35] We shall firstly discuss the impact of the jurisdiction point on section

We have given our reasons why we concluded that the District Native Court had no jurisdiction to invalidate the Native Certificates in question. In the premises, the judgment of the District Native Court was a nullity. For the same reason, the majority judgment of the two lay members of the Native Court of Appeal who ruled that they had jurisdiction to affirm the decision of the Native Court was also a nullity. We are mindful of the argument of counsel for Julita binti Tinggal that the appellant did not file a judicial review application to quash the majority judgment. The response of counsel for the appellant was that Justice Ismail Brahim had declared his judgment to be the final judgment and therefore they were not the adversely affected party in the contemplation of Order 53 rule 2(4) of the Rules of Court 2012 to be clothed with locus standi to apply for judicial review. S/N l5Lyfe7JS02uCbgADJabg [36] Be that as it may, we are of the view that it was not necessary for the appellants to obtain an order of certiorari to quash the majority judgment as it was a nullity from the outset and because the presiding judge of the Native Court of Appeal treated the majority judgment as a non-decision for want of jurisdiction and pronounced his judgment to be the final judgment. Furthermore, the fact that the majority judgment was not binding and did not require an application for it to be set aside was tacitly acknowledged by Julita binti Tinggal as she took out the instant judicial review application to quash Justice Ismail Brahim’s judgment. Thus, the High Court erred in declaring the majority judgment to be the final judgment. The judgment of the presiding judge should not have been quashed but should have been allowed to prevail as the final judgment of the Native Court of Appeal. [37] For the above reasons, we are of the view that regardless of the interpretation of section 24, the judgment of the presiding judge should not have been quashed as it was the only judgment upon which lawful reliance could be placed. [38] We shall now consider the construction to be placed on section 24 of the Native Courts Enactment 1992. Section 24 did not exist in the old Ordinance. Section 10A of the Native Courts Ordinance 1953 provided that the Native Court of Appeal shall be composed a High Court Judge, the Resident and one Native Chief. There is no mention that the judgment shall be by a majority vote. The only mention of majority judgment was in respect of the Native Court which was composed entirely of lay Native Chiefs. Section 4(5) provided as follows: The judgment of a Native Court shall be that of the majority of its members. Where their opinion is equally divided the suit or prosecution shall fail. S/N l5Lyfe7JS02uCbgADJabg [39] However, in the Native Courts Enactment 1992, section 24 provides that a judgment of the appellate court shall be unanimous or that of the majority of its members. At the Native Court of Appeal in this case, Justice Ismail Brahim said as follows in respect of the role of the lay members: Although the NCE is silence on the role of the Presiding Judge, I take the view that he may seek the advice of the other two members when deliberating or deciding on matters involving customs or ‘adat’. However, when the matter calls for deliberation on the issue of law [other than customary law or adat] the presiding judge is not required to seek the advice or assistance of the two members, even though they may have legal background. The duty to decide on the issues of law must be left to the presiding judge alone. If this is not observed there would be a situation where cases may be decided without sufficient consideration given to the law applicable to matter before the court. It is for this reason, I think the provision that the High Judge is to act as the presiding judge over the Native Court of Appeal was included in the NCE. The same approach had already been taken in Ungkari’s case and I will adopt the same approach here. [40] In the Ungkari case, Justice Douglas Cristo Primus Sikayun opined as follows on the same matter: I have taken into consideration the views expressed by my two pengapits. But the issue before this Native Court of Appeal is purely one of law. It should be clearly noted and understood that the role of the two pengapits is to adjudge and advise on matters of adat leaving legal issues to the presiding judge to decide as he is better disposed to handle such matters. [41] We are of the view that Justice Ismail Brahim and the other judges (Justice Douglas Cristo Primus Sikayun’s in the Ungkari case and Justice Mairin bin Idang @ Martin in the Jamili Bin Mohiman case) adopted the correct approach to section 24. We made this determination after S/N l5Lyfe7JS02uCbgADJabg considering the legislative purpose behind the empanelment of a High Court Judge in the Native Court of Appeal as well as the absurdity that will result if lay members are at liberty to give any judgment they wished without regard to the law at the highest tier of the native court system. Our reasons are as follows. [42] We reproduced in full section 6 of the Native Courts Enactment 1992 earlier. It sets out the jurisdiction of the Native Courts. It must be noticed that jurisdiction of the Native Courts is only in respect of native law and custom governing matters such as marriage, divorce, adoption, guardianship, inheritance and certain criminal offences involving sexual misconduct and the like. [43] In the premises, it follows that Native Chiefs are present at all tiers of the native court system because their expertise in native law and custom is required in the adjudication of disputes in matters that fall under section 6. As opined by Justice Ismail Brahim and Douglas Cristo Primus Sikayun, a High Court Judge is the presiding judge of the Native Court of Appeal under the Native Courts Enactment 1992 for a good reason. The Sabah Legislature had anticipated that issues of civil law that is unconnected with native law and custom may arise in the adjudication of disputes. These issues are best dealt by a High Court Judge. [44] In the instant case the question of law that arose at the outset of the Native Court of Appeal hearing was the power of the District Native Court to admit the application of Julita binti Tinggal and the issue of retrospectivity of written law. However, both Native Chiefs decided on these issues without deferring to the opinion of the presiding High Court Judge. It cannot be the intention of the Sabah Legislature that the majority S/N l5Lyfe7JS02uCbgADJabg comprising lay Native Chiefs can outvote the High Court Judge at Native Court of Appeal on matters that do not involve native law or custom and which are patently outside their areas of competence. This state of affairs, if allowed to prevail, may on occasion even give rise to conflict between decisions of Native Courts and that of the Civil Courts. [45] For the above reasons, we agree with counsel for the appellant that the absurdity that would result in a plain reading of section 24 can be avoided by reading the limiting words of “native law and custom” in respect of the judgment that will prevail by a majority of its members. Amongst the authorities cited by counsel for the appellant to persuade us to read section 24 in this manner is the Federal Court case of Tan Kim Hock Product Centre Sdn Bhd & Anor v Tan Kim Hock Tong Seng Food Industry Sdn Bhd [2018] 2 CLJ 567. [46] The above-mentioned case centred on the effect of a plain reading of section 9 (since repealed) of the Trade Descriptions Act 2011. The respondent obtained what is known as Trade Description Order (TDO) under the provision by way of an ex parte application which was the prevailing practice by stakeholders in the industry. Section 9 does not expressly say that the application can be made ex parte. [47] The Federal Court considered the fact that a TDO, though quasi criminal in effect, can only be meaningfully used if the element of surprise is preserved pending further action by the trade mark owner. The Federal Court also carefully considered the purpose of the Trade Descriptions Act 2011 which was to afford better protection to traders and consumers alike. The court, speaking through Balia Yusof Wahi FCJ, then said as follows: S/N l5Lyfe7JS02uCbgADJabg [45] Section 9(1) of Act 730 merely provides that any person "may apply to the High Court"..... Supplementing the words 'ex parte ' into the provision would certainly achieve the very purpose for the enactment of the provision and satisfy the mischief which the provision seeks to overcome. It is also in accord with the provisions of s. 17A of the Interpretation Acts 1948 and 1967 on the purposive approach of interpretation. To borrow the words of Denning LJ in the Seaford Court Estates case (supra ), it is to give "force and life" to the intention of the Legislature. [48] The Federal Court in the above mentioned case read the word “ex parte” into section 9 in order to render a TDO workable and promote the legislative purpose in question. The Federal Court also quoted with approval the following passage from the Discipline of Law by Lord Denning to support its approach: The literal method is now completely out of date. It has been replaced by the approach which Lord Diplock described as the "purposive approach"... In all cases now in the interpretation of statutes we adopt such a construction as will "promote the general legislative purpose" underlying the provision. It is no longer necessary for the judges to wring their hands and say: "There is nothing we can do about it". Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it - by reading words in, if necessary - so as to do what Parliament would have done, had they had the situation in mind. [49] In the instant case as well, as we said earlier, the limiting words of “native law and custom” should be read into section 24 to avoid the absurdity that will result in a literal reading of the provision. Otherwise, the intention of the Sabah Legislature in empanelling a High Court Judge to sit at the apex Native Court would be frustrated. Furthermore, as observed by Justice Ismail Brahim in this case and by Justice Douglas Cristo Primus Sikayun in the Ungkari case it has always been the practice of Native S/N l5Lyfe7JS02uCbgADJabg Chiefs at the Native Court of Appeal to defer to the opinion of the High Court Judge on a legal issue that is unconnected with native law and custom. Conclusion [50] For all the above reasons, we unanimously allow the appeal and set aside the decision of the High Court in the judicial review application. The respondent shall pay costs of RM45,000.00 here and below to the appellants which shall be subject to allocatur. SGD (RAVINTHRAN PARAMAGURU) Judge Court of Appeal Malaysia Putrajaya Dated: 7th March 2022 Parties Appearing: For The Appellants: Dato’ Cyrus V Das Rebecca Thong Fei Eng [Messrs Szetu & Co] For The Respondent: Datuk Firoz Hussein bin Ahmad Jamaluddin Datuk Haji Ansari bin Abdullah Ali Muhamad Amirul bin Amin [Messrs Ansari & Co] S/N l5Lyfe7JS02uCbgADJabg