Ang Game Hong & 1 Lagi v Tee Kim Tiam & 2 Lagi (01(f)-41-09/2017(B))

DALAM MAHKAMAH PERSEKUTUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO.: 01(f)-41-09/2017 ANTARA

1. ANG GAME HONG (NO. KP: 360119-10-5258)

2. TAN SOON SWEE (NO. KP: 590404-10-5507 PERAYU-PERAYU DAN

1. TEE KIM TIAM (NO. KP:590608-10-6499)

2. TAN PING NAH (NO. KP: 721115-14-5497

3. PENTADBIR TANAH KUALA SELANGOR ... RESPONDEN-RESPONDEN (Dalam Mahkamah Rayuan Malaysia Di Putrajaya (Bidangkuasa Rayuan) Rayuan No: B-01(NCVC)(W)-116-04/2016 Antara

1. Ang Game Hong (No. KP: 360119-10-5258)

2. Tan Soon Swee (No. KP: 590404-10-5507) Dan

1. Tee Kim Tian (No. KP: 590608-10-6499)

2. Tan Ping Nah (No. KP: 721115-14-5497)

3. Pentadbir Tanah Kuala Selangor ... Responden-Responden (Dalam Mahkamah Tinggi Malaya Di Shah Alam Dalam Negeri Selangor Darul Ehsan, Malaysia Guaman No: 21NCVC-29-03/2013 Antara Tee Kim Tian (No. KP: 590608-10-6499) ... Plaintif Dan Tan Ping Nah (No. KP: 721115-14-5497) Ang Game Hong (No. KP: 360119-10-5258) Tan Soon Swee (No. KP: 590404-10-5507) Pentadbir Tanah Kuala Selangor ... Defendan-Defendan) CORAM: AHMAD HAJI MAAROP, PCA ZAHARAH IBRAHIM, CJM AZIAH ALI, FCJ ALIZATUL KHAIR OSMAN KHAIRUDDIN, FCJ ROHANA YUSUF, FCJ SUPPORTING JUDGMENT [1] I have read the judgment of my learned brother Ahmad Bin Haji Maarop PCA, in draft. I agree with the opinion expressed on the various issues raised and the conclusion arrived at by His Lordship. [2] I would like to clarify further on the legal issue raised concerning the setting aside of a judgment of a High Court by another High Court as discussed and deliberated in the instant appeal. I am referring to the submissions of learned counsel for the Second and the Third Defendants, as stated in paragraph 14 of this judgment. [3] This Court had in the earlier decision in Ann Joo Steel Berhad v Pengarah Tanah Dan Galian, Mohd Noor Rejab and Ann Joo Steel Berhad v Tenaga Nasional Berhad [2019] 1 LNS 1126, held that a challenge on the validity of another High Court order must be impugned in a direct and specific proceeding filed for that purpose, be it in the same proceeding or a separate one. It cannot be challenged by merely raising it as a defence to an action. It was observed in that case that, the underlying reason for this legal principle is to preserve the sanctity and finality of a court order. [4] Ann Joo Steel Bhd, in brief, is about a case where the plaintiff sued the first defendant, Tenaga Nasional Berhad for trespass and the other defendants for failure to adhere to an order made by the Penang High Court in 1995 in relation to a border dispute under the National Land Code (Penang and Malacca Titles) Act 1963. In that Order, the High Court remitted the matter to the District Commissioner of Land Titles for a determination of the border in accordance with the law. At first and in compliance with that 1995 Order, the Collector re-measured the border in dispute and decided on a new border. That decision was affirmed by the Deputy Director of Land Titles as well as the Appeal Board under section 27(3) and 28(3) of the National Land Code (Penang and Malacca Titles) Act. This resulted in the Land in dispute to form part of the plaintiff's land. The first defendant, Tenaga Nasional Berhad, however, continued to occupy the said disputed land in defiance of that re-measurement. Instead, the first defendant proceeded to apply for that disputed land to be alienated to them. The application was allowed, and the disputed land was alienated to Tenaga Nasional Berhad. The plaintiff then filed an action on trespass against Tenaga Nasional Berhad as well as the other defendants, including Pengarah Tanah Dan Galian Pulau Pinang. [5] In that trespass suit the defendants raised as one of their defences that the Order made by the High Court in 1995 was null and void to justify their non-compliance with the consequential decision by the Land Office emanating from the 1995 Order of the High Court. It was in that context that this Court ruled that the defendants could not be allowed to take up a challenge or impugn an order of the High Court unless by a specific action. A party affected by order of a Court cannot on its own decided to disobey an order of a Court without taking any step to set it aside. [6] The defendants, in that case, had merely sat on the Order of a Court for a span of 15 years without any step taken to set it aside. When sued by the plaintiff, then only they defended the action against them on the ground inter alia, that 1995 Order by the High Court was unlawful, in order to justify their failure to observe that consequential decision of the Land Office. [7] It must, however, be noted that, in the current appeal the Plaintiff in his writ action sought to declare that he is a bona fide purchaser by virtue of a Sale and Purchase Agreement dated 27.1.2005 between him and the First Defendant. The other prayer sought was for a declaration that the transfer of the land to the Second Defendant in pursuant to a Consent Order was not valid. In seeking for these declarations, the Plaintiff is in effect challenging the transfer effected consequent upon the consent order in the 2004 case. The reasons for the challenge had been well deliberated earlier, in this ground of judgment. In effect, therefore, the Plaintiff in the suit in the current appeal is challenging the Consent Order which resulted in the wrongful transfer. [8] In other words, it is clear by the writ action that the Plaintiff is effectively challenging the validity of the Consent Order. Since the suit in itself is instituted to challenge the transfer made resultant from the Consent Order, we are of the view that no further separate action to challenge that Consent Order is therefore required since it is already embedded in the Statement of Claim of the Plaintiff. [9] It is pertinent to note that what is objectionable in Ann Joo Steel Bhd is the total disobedience and disregard of a valid Court Order of 1995 by the defendants therein. After having sat on that Order for 15 years, and having faced with a legal suit then only the defendants decided to raise issues on the illegality of the 1995 Court Order. [10] In contrast, the Plaintiff in the current appeal did attempt to include a specific prayer to set aside the Consent Order, by applying for an amendment of the Statement of Claim on 18.12.2013. It was dismissed by the High Court. The Plaintiff filed the current suit to declare himself as a bona fide purchaser on the basis that the Consent Order in 2004 case was unlawful for failure to observe the rule of natural justice. Upon discovering about the transfer of the land pursuant to the Consent Order, the Plaintiff had also taken step to impugn the Consent Order and the eventual transfer, by applying to intervene in the 2004 case. The application of the Plaintiff was however dismissed by the High Court and reaffirmed by the Court of Appeal. [11] Thus on the facts and circumstances of the current appeal it is clear to my mind that the Plaintiff in this suit had already taken steps to set aside the Consent Order and need not file a separate action to do the same. Therefore the contention of the counsel for the Second and Third Defendants cannot be sustained. The claim of the Plaintiff herein is, to all intent and purposes a challenge on the Consent Order, which we find to be irregular, null and void and was rightly set aside by the Court of Appeal. ROHANA YUSUF Judge, Federal Court, Malaysia Dated: 15.10.2019