Lee Ewe Liang v Yeoh Oon Theam (P-02 (IM) (Ncvc) – 1381-07/2018)

LEE EWE BEE [sebagai Pentadbir Bersama Ad Litem Bagi Estet Tan Chye Hoon @ Tan Chai Hoon @ Tan Chye Hun, simati melalui suatu Perintah Mahkamah Tinggi Pulau Pinang bertarikh 25.5.2017] PERAYU-PERAYU

WAYREX SDN. BHD (No. Syarikat: 130212-D)

HYBRID GOLD SDN. BHD (No. Syarikat : 283499-T) RESPONDEN-RESPONDEN [Dalam Perkara Mengenai Mahkamah Tinggi Malaya di Pulau Pinang Guaman Civil No. PA-22NCvC-123-06/2017

Lee Ewe Bee

Lee Ewe Liang [Sebagai Pentadbir Bersama Ad Litem Bagi Estet Tan Chye Hoon @Tan Chai Hoon. @ Tan Chye Hun, simati melalui suatu Perintah Mahkamah Tinggi Pulau Pinang bertarikh 25.5.2017] ... Plaintif-Plaintif

Lee Chiew Sim

Yeoh Oon Theam

Wayrex Sdn. Bhd. (No. Syarikat: 130212-D)

Hybrid Gold Sdn. Bhd. (No. Syarikat: 283499 - T) ... Defendan-Defendan] CORAM: HAMID SULTAN BIN ABU BACKER, JCA LAU BEE LAN, JCA AZIZAH BINTI NAWAWI, JCA JUDGMENT Introduction [1] This is an appeal filed by the appellants against the decision of the High Court Judge dated 22.6.2018, allowing the respondents' application pursuant to Order 18 rule 19 of the Rules of Court 2002 ("ROC 2012") to strike out the appellants' Suit No: PA-22NCvC-123- 06/2017. [2] For ease of reference, parties will be referred to as they were in the proceedings before the High Court. The Salient Facts [3] The plaintiffs' claim in this case is in respect to the piece of land known as Lot 4788, Bandar Georgetown, Section 5, North East District held under Grant No. 123343 ("Lot 4788"). [4] It is also not in dispute that Lot 4788 was part of the estate of one Lim Mah Ee @ Baba Mahee ("Lim Mah Ee"), who died in 1848. [5] It is the plaintiffs' pleaded case that Tan Chye Hun was the grandniece of Lim Mah Ee and he eventually became the registered and beneficial owner of Lot 4788. Tan Chye Hun died in 1906. [6] Sometime in 1988, Tan Chye Hun's name was replaced in the interim register by the Commissioner of Land with the name of Baba Mahee. The land was then transferred to Majlis Agama Islam Pulau Pinang Dan Seberang Perai in 1991 pursuant to a court order dated 3.5.1991. [7] On 19.10.1993, the High Court in Penang granted the $ 2^{\mathrm{nd}} $ defendant Letters of Administration De Bonis Non for the estate of Lim Mah Ee, deceased. [8] In 1994, the $ 2^{\mathrm{nd}} $ defendant sued the Majlis Agama Islam Pulau Pinang Dan Seberang Perai and two (2) others to have Lot 4788 returned back to the estate of Lim Mah Ee, deceased and the said land was reverted back to the estate vide a consent order dated 29.5.1997. [9] On 8.1.1997, the $ 2^{\mathrm{nd}} $ defendant obtained an order for the sale of Lot 4788 to the $ 3^{\mathrm{rd}} $ defendant and/or its nominee, and the land was subsequently transferred to the $ 4^{\mathrm{th}} $ defendant on 20.3.1997. The $ 4^{\mathrm{th}} $ defendant is now the registered owner of Lot 4788. [10] The plaintiff filed suit no. 22-324-1997 against the $ 2 ^{n d} $ defendant, seeking to set aside the Letter of Administration granted by the court on 19.10.1993, on the basis that the $ 2 ^{n d} $ defendant committed fraud and misrepresentation, when he is not the beneficiary to the estate of Lim Mah Ee and that they, the plaintiffs were the beneficiaries, being the descendant of Tan Chye Hun, the grandniece of Lim Mah Ee. This suit was subsequently struck out after the plaintiffs filed a Notice of Discontinuance. [11] On 6.3.1998, the plaintiffs sued the $ 2^{nd} $ defendant in suit no. 22- 104-98, also seeking to set aside the Letter of Administration granted by the court on 19.10.1993, on the basis that the $ 2^{nd} $ defendant committed fraud and misrepresentation, when he is not the beneficiary to the estate of Lim Mah Ee and that they, the plaintiffs, were the beneficiaries, being the descendant of Tan Chye Hun, the grandniece of Lim Mah Ee. [12] On 5.6.1998, the plaintiffs applied to intervene in suit no.22-1132 96, seeking an order to set aside the order for sale of Lot 4788. The application was dismissed by the High Court on 3.8.1998 and the plaintiffs' appeal was dismissed by the Court of Appeal on 21.11.1999. [13] On 19.6.1998, the plaintiffs sued the $ 2^{n d}, 3^{r d} $ and $ 4^{t h} $ defendants in suit no. 22-408-1998 claiming that the $ 2^{n d} $ defendant had committed fraud and misrepresentation to the court that he was the beneficiary to the estate of Lim Mah Ee. The plaintiffs prayed for, inter alia, the following orders:

to set aside the $ 2^{\mathrm{nd}} $ defendant's grant of Letters of Administration granted by the court on 19.10.1993;

(ii) to set aside the SPA between the $ 2^{\mathrm{nd}} $ defendant and the $ 3^{\mathrm{rd}} $ defendant dated 28.2.1992

(iii) to set aside the transfer of the land to the $ 4^{\mathrm{th}} $ defendant; and

(iv) to declare the plaintiffs as the rightful beneficiaries to the estate of Lim Mah Ee, deceased. [14] On 5.3.2001, the parties have entered into two (2) Compromise Agreements, and the terms of both agreements, inter alia, were as follows:

that the $ 2^{\mathrm{nd}} $ defendant, as the Administrator of the Estate of Lim Mah Ee, shall call for a kin enquiry, to determine the beneficiaries of the Estate of Lim Mah Ee;

(ii) that the $ 2^{\mathrm{n d}} $ defendant recognizes the plaintiffs and their siblings as the descendants of the said Lim Mah Ee, and are entitled to a share of the Estate;

(iii) that the plaintiffs recognizes the $ 2^{\mathrm{n d}} $ defendants and his siblings as the descendants of the said Lim Mah Ee, and are entitled to a share of the Estate;

(iv) that the plaintiffs shall withdraw their civil suits against the $ 2^{n d}, $ $ 3^{r d} $ and $ 4^{t h} $ defendants and undertake not to file further proceedings against the $ 2^{n d}, $ $ 3^{r d} $ and $ 4^{t h} $ defendants;

that the plaintiffs unconditionally withdraw their allegations of fraud and misrepresentations against the $ 2^{n d} $ defendant. [15] Pursuant to the terms of the Compromise Agreements, the plaintiffs withdrew all the above civil suits. [16] Further, pursuant to the terms of the Compromise Agreements, the $ 2^{\mathrm{nd}} $ defendant had applied to the court for a kin enquiry in Originating Summons No. 24-1004-2001, in order to determine the lawful beneficiaries and next of kin of the deceased, Lim Mah Ee. In 2011, the court made a finding that both the plaintiffs and the $ 2^{\mathrm{nd}} $ defendant have been recognized as the lawful descendants and beneficiaries of the Estate of the deceased, Lim Mah Ee. [17] On 8.6.2007, the plaintiffs once again sued the $ 2^{nd} $ $ 3^{rd} $ and $ 4^{th} $ defendants in suit no. 22-322-2007 ("Suit 322/2007") seeking the same prayers as before, again premised on the allegations of fraud and misrepresentation allegedly committed by the $ 2^{nd} $ defendant. The suit against the $ 2^{nd} $ defendant was struck out by the High Court which was affirmed by the Court of Appeal. The $ 3^{rd} $ and $ 4^{th} $ defendants' application to strike out the plaintiffs' claims were dismissed by the High Court. The decision of the High Court was reversed by the Court of Appeal and the plaintiffs' suit against the $ 3^{rd} $ and the $ 4^{th} $ defendants were struck out. Leave to appeal to the Federal Court was also dismissed. [18] On 6.6.2017, the plaintiffs filed this suit. In the present suit, the plaintiffs are seeking the following prayers against the defendants in paragraph (43) of their Statement of Claim ("SOC"):

A declaration that the $ 2^{\mathrm{nd}} $ defendant is not a descendant and/or beneficiary of Lim Mah Ee @ Baba Mahee, deceased and Tan Chye Hun, deceased;

A declaration that the grant of Letters of Administration for the estate of Lim Mah Ee @ Baba Mahee, deceased dated 10.8.1993 granted to the $ 2 ^{nd} $ defendant, Yeoh Oon Theam, by the Penang High Court vide Petition No: 31-177-1993 ("hereinafter the said Grant") is a nullity and that an order that the Grant be cancelled, set aside and/or revoked;

An order that the Sale and Purchase Agreement dated 29.2.1992 and the Order for Sale dated 8.1.1997 obtained in the Penang High Court vide Originating Summons No: 24- 1132-1996 be set aside;

An order setting aside both the Compromise Agreements dated 5.3.2001 entered between the Plaintiff and the $ 1^{\mathrm{st}} $ $ 2^{\mathrm{nd}} $ $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ Defendants;

(d)(i) An order setting aside the Order of the Penang High Court dated 16.2.2011 with respect to the Kin Enquiry obtained by the $ 2^{nd} $ Defendant vide proceedings in Penang High Court Originating Summons No: 24-1004-2001;

A declaration that the instrument in form 14A of the National Land Code vide "Perserahan No: 18161/97" from the $ 2^{n d} $ Defendant to the $ 4^{n d} $ Defendant is null and void;

An order cancelling the transfer of the said land vide form 14A of the National Land Code from the $ 2^{n d} $ Defendant to the $ 4^{th} $ Defendant;

A declaration that Tai Chye Hun, deceased is the rightful registered beneficial owner of the said land known as Lot 4788, Georgetown, Section 5, North East District held under Grant No. number 123343 and a consequential order that the registration of the $ 4^{th} $ Defendant on the title for Lot 4788, City of Georgetown, Section 5, North East District held under Grant No. 123343 be removed and be reinstated in the name of Tai Chye Hun, deceased and/or registered in the name of the $ 1^{st} $ and $ 2^{nd} $ Plaintiffs as the administrators of the estate of Tai Chye Hun. [19] In paragraph 3 of the SOC, the plaintiffs plead that they make no claim against the $ 1^{\mathrm{st}} $ defendant. [20] Vide an application dated 27.11.2017, the $ 2^{\mathrm{nd}} $ $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ defendants have applied to strike out the plaintiffs' suit on the grounds that this Suit is barred by limitation, res judicata, laches and acquiescence, estoppel and an abuse of the process of the court. Findings of the High Court [21] The learned High Court Judge had allowed the defendants' application and struck out the plaintiffs' claim on the grounds that the plaintiffs' suit is barred by limitation under section 9(1) of the Limitation Act 1953, that the suit is an abuse of the process of the court as the subject matter have been litigated and decided by the courts in the earlier suits and that the parties are bound by the Compromise Agreements. Findings of this Court [22] The parties have submitted on two (2) main issues, whether the plaintiffs' suit should be struck out on the principle of res judicata and limitation.

Res judicata [23] On the issue of res judicata, reference is made to the decision of the Supreme Court in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189, where the court held as follows: "What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a Court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that, it is in the public interest that there should be finality in litigation - interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action - nemo debet bis vexari pro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. Since a res judicata creates an estoppel per rem judicatum, the doctrine of res judicata is really the doctrine of estoppel per rem judicatum, the latter being described sometimes in a rather archaic way as estoppel by record. Since the two doctrines are the same, it is no longer of any practical importance to say that res judicata is a rule of procedure and that an estoppel per rem judicatum is that of evidence. Such dichotomy is apt to give rise to confusion. The starting point ought to be the celebrated passage by Wigram, V.C., in the case of Henderson v. Henderson [1843] 3 Hare 100 115 which is: The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time. Thus, there are in fact two kinds of estoppel per rem judicatum. The first type relates to cause of action estoppel and the second, to issue estoppel, which is a development from the first type. The cause of action estoppel arises when rights or liabilities involving a particular right to take a particular action in court for a particular remedy are determined in a final judgment and such right of action ie. the cause of action, merges into the said final judgment; in layman's language, the cause of action has turned into the said final judgment. The said cause of action may not be relitigated between the same parties because it is res judicata." [24] Therefore, from the case of Asia Commercial Finance (supra) the Federal Court has explained that the doctrine of res judicata consists of the following two limbs:

cause of action estoppel applies to bar a person and/or his privies from filing any subsequent action after the court's decision in the earlier proceedings; and

(ii) issue estoppel principle which operates to prevent a party and/or his privy from raising any issue in the latter case which has been raised in the earlier or can be raised with reasonable diligence in the earlier case. [25] In a recent Federal Court case of Syarikat Sebati Sdn Bhd v. Pengarah Jabatan Perhutanan & Anor [2019] 3 CLJ 157, the Federal Court held as follows: "[34] Firstly, on the issue of res judicata, it is necessary to reiterate the elements which constitute res judicata. For this purpose we find the book Spencer Bower and Turner Res Judicata (3rd Ed, 1996) particularly useful. There the learned authors sets out at p 10, para 19 what is involved in the burden of showing res judicata which consist of six matters: i) the decision was judicial in the relevant sense; ii) it was in fact pronounced; iii) the tribunal had jurisdiction over the parties and the subject matter; iv) the decision was - (a) final, and (b) on the merits; v) it determined the same questions as that raised in the later question; and vi) the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem." [26] In Scott & English (M) Sdn Bhd v. Yung Chen Wood Industries Sdn Bhd [2018] 6 CLJ 271, the Federal Court said this: "[20] As said, against the order of Yew Jen Kie JC, the plaintiff appealed to the Court of Appeal. When its appeal (S-02-8000-2006) was dismissed by the Court of Appeal, the plaintiff applied to the Federal Court for leave to appeal. But when the Federal Court refused leave to appeal, all litigation that pertained to the order of Yew Jen Kie JC had run its entire course (see Ooi Bee Tat v. Ooi Bee Tat & Sons Sdn Bhd & Anor [1998] 1 LNS 358; [1999] 5 MLJ 10). There was no appeal beyond the Federal Court. The plaintiff had exhausted all possible appeals. The order of Yew Jen Kie JC became final and conclusive (see Tiew Kun v. Tneu Seng Bee & Another Appeal [2010] 2 CLJ 68; [2010] 2 MLJ 213). By the same token, when the Federal Court refused leave to the defendant to appeal, the order of Linton Albert J became final and conclusive. Both the orders of Linton Albert J and Yew Jen Kie JC were amenable to the doctrine of res judicata. "Literally translated, res judicata is 'the fact has been decided'. It expresses a general public interest policy that the same issue (or cause of action) should not be litigated more than once even if the parties are different. It prevents vexatious litigation and any abuse of the courts' process on the premise that final judgments are binding and conclusive (see Henderson v. Henderson [1843] 3 Hare 100)" (Letchumanan Gopal v. Pacific Orient & Co Sdn Bhd [2011] 5 CLJ 866; [2011] 6 MLJ 788, per Abdul Hamid Embong JCA, as he then was, delivering the judgment of the court). Since finally adjudged, the orders of Linton Albert J and Yew Jen Kie JC became the truth between the plaintiff and defendant (see Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783; [1995] 3 MLJ 189). [21] All litigation must come to an end. The plaintiff could not relitigate the orders of Linton Albert J and Yew Jen Kie JC. We agree with Douglas Cristo Primus Sikayun JC that when the order of Linton Albert J was sealed, the High Court became functus officio, save and except to correct "clerical mistakes in the judgment or orders, or error's arising therein from any accidental slip or omission" (see O. 20 r. 11 of the Rules of Court 2012)". [27] It is not in dispute that the subject matter of all the suits between the parties, in particular suit 322/2007, is Lot 4788. The same subject matter is raised in the present suit. As in suit 322/2007, the plaintiffs are also raising the same issue that the $ 2^{\mathrm{nd}} $ defendant had committed fraud and misrepresentation to the court that he was a beneficiary to the estate of Lim Mah Ee, and that the plaintiffs are the beneficiaries to the estate of Lim Mah Ee, by virtue of being the descendant of Tan Chye Hun. Both this suit and suit 322/2007 are seeking the same prayers, inter alia;

a declaration that the $ 2^{\mathrm{n d}} $ defendant is not a descendant and/or beneficiary of Lim Mah Ee @ Baba Mahee, deceased;

(ii) to declare and set aside the grant of Letters of Administration for the estate of Lim Mah Ee @ Baba Mahee, deceased dated 10.8.1993 granted to the $ 2 ^{n d} $ defendant, Yeoh Oon Theam, by the Penang High Court vide Petition No: 31-177-1993;

(iii) to set aside the Sale and Purchase Agreement dated 29.2.1992 and the Order for Sale dated 8.1.1997 obtained in the Penang High Court vide Originating Summons No: 24- 1132-1996 (in respect of $ 3 ^{rd} $ defendant); and

(iv) to set aside the transfer of the land to the $ 4^{th} $ defendant. [28] Therefore, since the above issues have already been decided in suit no. 322/2007, the plaintiffs are bound by the decision of the courts in suit no. 322/2007. The matter is already res judicata as between the parties. [29] Added to that, pursuant to the Compromise Agreements, a kin enquiry was conducted where the High Court has made a finding that both the plaintiffs and the $ 2 ^{nd} $ defendant have been recognized as the lawful descendants and beneficiaries of the Estate of the deceased, Lim Mah Ee. The plaintiffs did not appealed against this finding and therefore the said finding is binding on both parties. [30] However, the plaintiffs take the position that this suit is not caught by res judicata because the parties are different. In the previous suits the plaintiffs were suing in their personal capacity as the beneficiaries of the estate of Lim Mah Ee, whilst they are now taking this suit as the administrators of the estate of Tan Chye Hun. It is the contention of the plaintiffs that Lot 4788 belonged to the estate of Tan Chye Hun, not the estate of Lim Mah Ee. [31] We are of the considered opinion that the estate of Tan Chye Hun could have raised the issue of the ownership of the land in the earlier proceedings. Added to that, the estate of Tan Chye Hun cannot allow the earlier litigation (suit 322/2007) to be challenged by someone with the same interest, and later commence an action when the earlier action was lost. In Spencer Bower, Turner and Handley's "The Doctrine of Res Judicata" (3rd Edition), the author stated as follows in paragraph 218: "There is a further rule which originated in the probate jurisdiction. Any person claiming an interest in the estate has the right to intervene in a probate suit and if such a person stands by and allows the litigation to be conducted by others, he is deemed a party and is bound by the result. This principle is no longer confined to the probate jurisdiction. The Privy Council applied it to a land dispute in which an interested party allowed earlier litigation to be fought by someone in the same interest. This decision has now been followed in a case involving joint tortfeasors, Stuart-Smith LJ saying that although the rule may have originated in probate cases 'justice and common sense [did not] require it to be so confined." (emphasis added) [32] In the English Court of Appeal case of In the Estate of Langton, Decd [1964] Probate Division p.163, Wilmer L.J stated at page 171: "The determining factor is whether the plaintiff in the second action was cognisant of, and had the opportunity to intervene in, the earlier action. I see no reason why the principle should not apply equally to the case where the plaintiff sues in a representative capacity as it does where he sues for his own benefit. It may be that such a one could be made liable at the suit of a beneficiary if, being cognisant of the previous proceedings, he failed to exercise his right of intervention for the protection of the beneficiary. But I can see no reason why he should be allowed to institute fresh proceedings, even for the protection of a beneficiary, so as to prejudice parties who have already obtained judgement against him." [33] The plaintiffs also take the position that res judicata cannot apply in this case as the allegations are not similar to the allegations in suit no. 322/2007. From the pleadings, the only dissimilar allegation is that Lot 4788 did not belong to the estate of Lim Mah Ee, but it belonged to the estate of Tan Chye Hun and that the $ 2 ^{n d} $ defendant had no nexus with the deceased, Tai Chye Hun. [34] It is not in dispute that it had always been the plaintiffs' case that Lot 4788 belonged to the estate of Lim Mah Ee. The plaintiffs took the earlier suits on the basis that they are the rightful beneficiaries to the estate of Lim Mah Ee, not the $ 2 ^{n d} $ defendant. [35] Now the plaintiffs submit that Lot 4788 belonged to the estate of Tai Chye Hun based on the evidence given in the criminal trial against the $ 2^{n d} $ defendant on a charge of making a false declaration in relation to material facts under section 199 of the Penal Code read with section 193, in respect of his relationship with the deceased, Lim Mah Ee. The $ 2^{\mathrm{nd}} $ defendant was eventually acquitted of the charge by the Court of Appeal in Yeoh Oon Theam v Public Prosecutor [2016] 5 MLJ 387. [36] In any event, the Notes of Proceedings of the criminal case is not before this court as the application (for fresh evidence) to have the same as part of the records in this appeal had been dismissed by a different panel of this court on 31.7.2019. [37] Be that as it may, the plaintiffs submit that from the 'Interim Register' and the Land Office INDEX Register, the deceased Tan Chye Hun was the owner of Lot 4788. The onus rests on the plaintiffs to establish that they have with due diligence failed to discover that the said land belonged to the estate of Tan Chye Hun, as these facts were said to have been discovered in the criminal trial. [38] Bearing in mind that the ownership of Lot 4788 can be ascertained from the land office, this issue on the rightful ownership of Lot 4788, whether it belonged to the estate of Lim Mah Ee or Tai Chye Hun, could and should have been raised in suit 322/2007. As such, we are of the considered opinion that issue estoppel principle operates to prevent the plaintiffs from raising this ownership issue in this case, as the same could have been raised with reasonable diligence in the earlier case, in suit 322/2007 (see Asia Commercial Finance, supra).

(ii) limitation [39] The defendants' pleaded case is that the suit is barred by section 9(1) of the Limitation Act 1953, which provides that: "No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims, to that person." [40] It is the submission of the defendants that from the plaintiffs' pleaded case in paragraphs 14, 15 and 16 of the SOC, the plaintiffs have pleaded that the deceased Tan Chye Hun was already the registered and beneficial owner of the land before he died in 1906. The alleged fraud against the estate of Tan Chye Hun was committed in 1988, when the name of the deceased Tan Chye Hun was replaced by Baba Mahee in the interim register. The Plaintiffs then pleaded that on 15.8.1995, the 2nd Defendant's name was registered on the title document of the said land as the administrator of the estate of Lim Mah Ee @ Baba Mahee. Therefore, since this suit was filed on 13.6.2017, limitation has already set in, either from the alleged fraud committed in 1988 or the register of the 2nd Defendant's name on the title document of the land as administrator of the estate of Lim Mah Ee @ Baba Mahee in 1995. [41] In Husli @ Husly bin Mok (suing as administrator of the estate of Mok bin Tuah, deceased) v Superintendant of Lands & Survey & Anor [2013] 3 MLJ 666, the Court of Appeal held that once limitation is pleaded, the onus is on the plaintiff to show that the action was filed within the relevant limitation period. The court held as follows: "[20] It is trite law that when the plea of limitation was raised for the defendants, the plaintiff bears the burden of proving that his action was brought within the prescribed limitation period..." [42] In response, the plaintiffs submitted that this suit is not barred by limitation as section 29 of the Limitation Act 1953 allows the postponement of limitation period in cases involving fraud. Since this suit involved the issue of fraud, and that the fraud was only discovered in the year 2011 to 2012 during the criminal trial, limitation commence from this period and this SOC, filed on 13.6.2017 is within the limitation period of twelve (12) years from the alleged discovery of the fraud. [43] Section 29 of the Limitation Act 1953 provides that if the action is based upon the fraud, the period of limitation shall not begin to run until the plaintiff discovered the fraud or could with reasonable diligence have discovered the fraud: "Where, in the case of any action for which a period of limitation is prescribed by this Act, either-

the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or

the right of action is concealed by the fraud of any such person as aforesaid; or

the action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it: " (emphasis added) [44] From the SOC, the plaintiffs' pleaded case of fraud is that the $ 2^{nd} $ defendant had committed fraud on the court by misrepresenting that Lot 4788 belonged to the estate of Lim Mah Ee, deceased when in fact that it was already registered in the name of Tan Chye Hun. The other allegation of fraud is that the $ 2^{nd} $ defendant claimed to be a descendant of Lim Mah Ee, when he was not. The plaintiffs claimed that these fraud were only discovered during the criminal trial against the $ 2^{nd} $ defendant in the years 2011/2012. [45] The plaintiffs had relied on the evidence from the criminal trial to support these allegations of fraud. As stated above, the notes of proceedings of the criminal trial is not before this court as the application to produce the same as fresh evidence had been dismissed by a different panel of this court on 31.7.2019. It is also to be noted that the plaintiffs had applied to use the same notes of proceedings before the court of appeal in respect of the appeal of suit 322/2007, but the same was rejected and the plaintiffs' appeal was subsequently dismissed. [46] In any event, the allegation of fraud with regard to the rightful ownership of Lot 4788, whether it belonged to the estate of Lim Mah Ee or Tai Chye Hun, could have been discovered with due diligence from the land register in the land office. This could have been ascertained with due diligence when the name of Tan Chye Hun was replaced by Baba Mahee in the interim register in 1988. This could also have been ascertained with due diligence when the plaintiffs had challenged the 2nd defendant's grant of the Letters of Administration in respect of the estate of Lim Mah Ee in the 1997 suit (suit no. 22-324-1997). Therefore, since this suit was filed on 13.6.2017, limitation has already set in, as the plaintiffs could, with reasonable diligence, have discovered the alleged fraud committed in 1988, 1995 or 1997. [47] With regard to the second allegation of fraud, that the $ 2^{\mathrm{nd}} $ defendant was not a descendant of Lim Mah Ee, deceased, again the plaintiffs sought to rely on the evidence before the criminal trial which is not before this court. Be that as it may, it is the pleaded case of the plaintiffs' from the first suit, no 22-324-1997, that the $ 2^{\mathrm{nd}} $ defendant had committed fraud when he represented to the court that he was a beneficiary to the estate of Lim Mah Ee, deceased. This is also the plaintiffs' pleaded case in suit 22-104-1998, suit 22-408-1998 and suit no. 22-322-2007. In fact, the parties have agreed to ascertain the beneficiaries to the Estate of Lim Mah Ee, through the Kin Enquiry in OS No. 24-1004-2001, where the Court had made a finding that both the plaintiffs and the $ 2^{\mathrm{nd}} $ defendant are the beneficiaries of the Estate of Lim Mah Ee. As such, this issue is not only res judicata, but it is also barred by limitation. [48] The other issues raised before the High Court, which had been accepted by the High Court Judge as the basis to strike out the plaintiffs' suit are delay, acquiescence, laches and abuse of the process of the court. Having considered the grounds of the High Court, we do not find any appealable error on the analysis and findings of the High Court on these issues. Conclusion [49] Premised on the reasons enumerated above, we find no merit in the appeal. We are of the considered opinion, and we agree with the finding of the High Court that this is a plain and obvious case to be struck out premised on the legal issues, inter alia, res judicata, limitation and an abuse of the process of the court. The appeal is hereby dismissed with cost and the decision of the High Court dated 22.6.2018 is affirmed. Dated: 3 September 2020 sgd (AZIZAH HAJI NAWAWI) Judge Court of Appeal, Malaysia

Syarikat Sebati Sdn Bhd v. Pengarah Jabatan Perhutanan & Anor [2019] 3 CLJ 157

Syarikat Sebati Sdn Bhd v. Pengarah Jabatan Perhutanan & Anor [2019] 3 CLJ 157

Scott & English (M) Sdn Bhd v. Yung Chen Wood Industries Sdn Bhd [2018] 6 CLJ 271

Estate of Langton, Decd [1964] Probate Division p. 163, Wilmer L.J stated at page 171

Yeoh Oon Theam v Public Prosecutor [2016] 5 MLJ 387

Husli @ Husly bin Mok (suing as administrator of the estate of Mok bin Tuah, deceased) v Superintendant of Lands & Survey & Anor [2013] 3 MLJ 666