1. Nazaruddin Bin Mohd Shariff @ Masari v Syamser Bin Saam (24NCVC-651-06/2018)

NAZARUDDIN BIN MOHD SHARIFF @ MASARI (NO. K/P: 560429-10-5039) (atas kapasiti selaku Pentadbir Harta Pusaka arwah Masri bin Khatib)

ROZIDIN BIN MASARI (NO. K/P: 591017-10-5069) (atas kapasiti selaku Pentadbir Harta Pusaka arwah Masri bin Khatib) ... PLAINTIFFS AND SYAMSER BIN SAAM (NO. K/P: 511121-71-5147) … DEFENDANT BEFORE Y.A. TUAN GUNALAN A/L MUNIANDY JUDGE, HIGH COURT Page 4 of 11 GROUNDS OF DECISION [1] This is an action commenced by originating summons (‘OS’) for a variety of reliefs/orders as follows:

A declaration that the Plaintiffs’ grandmother Munah binti Banci @ Hajah Munah binti Hj. Abd Kadir, who died in Solok, Perak Baru, Sumatera Barat, Indonesia around year 1930s, did not signed and/or thumbprint and it is absurd that she signed and/or thumbprint on a Power of Attorney dated 19.03.1994;

A declaration that the Plaintiffs’ grandfather Khatib Besar @ Malim Mulia @ Malim Mulia bin Raja Suwaran @ Haji Ismail @ Sultan Palembang @ Raja Acheh @ Khatib bin Jainas @ Hj Ismail bin Raja Acheh who died in Tanah Melayu around year 1940s, did not sign and/or thumbprint and it is absurd that she signed and/or thumbprint on a Power of Attorney dated 19.03.1994;

A declaration that statement in a Statutory Declaration dated 23.8.1995 affirmed by Syamser bin Saam in particular Page 5 of 11 statement that the Plaintiffs’ grandfather and grandmother were still living at the time the Power of Attorney dated 19.3.1994 was executed is a false declaration and statement and mala fide / bad intention to dispose of the Plaintiffs’ grandfather’s and grandmother’s property inconsistent with the law, Hukum Faraid;

A declaration that the Power of Attorney dated 19.3.1994 referred to by Syamser bin Saam in his statutory Declaration is a forgery, defective, invalid, null and unenforceable and inconsistent with Statutory Declaration Act 1960;

A declaration that the Statutory Declaration dated 23.8.1995 affirmed by Syamser bin Saam is a forgery, defective, invalid, null and unenforceable and inconsistent with Power of Attorney Act 1949 and Notary Public Act, 1959;

A declaration that Syamser bin Saam’s action is inconsistent with laws;

An order that the Power of Attorney dated 19.3.1994 registered at the Kuala Lumpur High Court (‘KLHC’) vide Page 6 of 11 presentation No. 16076/94 be revoked immediately and be removed from the KLHC record;

An order that the Power of Attorney dated 19.3.1994 registerd at Pejabat Tanah Hulu Langat vide presentation No. 363/95A, Folio No. 80A, Jilid No. 34 registered on 18.8.1995 be revoked immediately and be removed from Pejabat Tanah Hulu Langat record;

Cost in the cause. [2] The entitlement of the OS cites various laws as the legal basis for the action:

Sections 41 and 42, Specific Relief Act, 1951 for the declarations;

Section 43 and 108, Evidence Act, 1950;

Section 3, Power of Attorney Act, 1949;

Section 3, Statutory Declarations Act, 1960;

Notaries Public Act, 1959; and

Order 7, 28 and 92, Rule 4, Rules of Court, 2012 (‘ROC’) Page 7 of 11 Grounds in Support

Plaintiffs are the co-administrators of estate of one Khatib Bedar bin Jainas @ Rava Acheh @ Juacheh, deceaced. (Plaintiff’s grandfather)

Properties in Lot 226 & 2796 Sungai Lui, Mukim Hulu Langat, Daerah Hulu Langat, Selangor Darul Ehsan belong to the Plaintiffs’ grandfather and grandmother who was died in 1930s and 1940s.

Defendant had forged the 2 documents, Statutory Declaration and Power Attorney, to transfer the 2 properties to one Imran Hadzalie bin Abd Hamid & Ahmad Aidy bin Talib since 1995.

These facts were only discovered in 2015 after the said properties were acquired by the Selangor State Government pursuant to the Land Acquisition Act, 1960 (‘LAA’). Opinion of Court [3] From a cursory perusal of the prayers in the OS, it was plain and obvious that the Plaintiffs were totally flawed in resorting to the mode of Page 8 of 11 proceedings by OS. The orders and reliefs sought by the Plaintiffs were wholly inappropriate to be applied for in proceedings begun by OS. This is abundantly clear from the terms of O. 5, r. 4, ROC which are relevant to the order that I made are reproduced below: “Order 5 1. Mode of beginning civil proceedings (O. 5 r. 1) Except as provided in these Rules and subject to Order 94, rule 2, proceedings shall be commenced either by originating summons or by writ.” [4] As can be seen from the provisions of O. 5, r. 4(1)(a) and (b), the rule envisages two situations where proceedings are appropriate to be begun by OS. None of the said two situations appear to be applicable to the instant facts and prayers in the Plaintiffs’ OS. It is manifestly clear that this is not a case in which the sole or principal question at issue is likely to be one of the construction of any written law or instrument made under any written law, etc. or there is unlikely to be any substantial dispute of fact. Instead, the entire OS, involves several questions of fact and serious allegations of unlawful acts relating to forgery and fraud against the Defendant on which there was the likelihood of serious and substantial Page 9 of 11 disputes of fact regardless of whether there was any response by the Defendant to the action. [5] O. 28, r. 8, ROC confers on the Court in any cause or matter begun by OS, the discretionary power to order the cause or matter to proceed as if it was begun by writ O. 28, r. 8(1) provides that: “8. Continuation of proceedings as if cause or matter begun by writ (O. 28 r. 8)

Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that pleadings shall be delivered or that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof.” Page 10 of 11 [6] In the circumstances, I invoked O. 28, r. 8(1), ROC for this cause or matter to be disposed of fairly and expediently and concluded by the proper mode of proceedings as follows. [7] Based on a perusal of the Plaintiffs’ Affidavit In Support of the OS, the grounds advanced in support and the orders prayed for, there are numerous issues and matters involving facts that are likely to be the subject of serious dispute, including allegations of fraud, forgery and cheating. From the narration of the factual historical background of the circumstances that led to this OS being filed, it is abundantly clear that to allow this cause or matter to be commenced by OS would be in blatant disregarded of the express terms of O. 5, r. 4, ROC. Hence, it is clearly not appropriate and proper for an action of this nature to be commenced and proceeded with by OS as the mode of proceedings. Hence, this cause or matter is ordered to be continued as if it was begun by Writ. The Plaintiffs are directed to take all the necessary steps required for a Writ action to proceed under directions given by the Registrar under O. 34, r. 1, ROC. Page 11 of 11 Dated : 30 January 2019 (GUNALAN A/L MUNIANDY) Judge High Court of Malaya Shah Alam COUNSEL: For the Plaintiffs : En. Ismail bin Yahya Tetuan Ismail & Co. Shah Alam, Selangor For the Defendant : -