Ayaz Ahmad Bin Mohamed Salleh v Abd Rashid Bin Mohd Idris (K-01(NCvC)(W)-272-06/2023)

ABD RASHID BIN MOHD IDRIS

KETUA PENGARAH TANAH DAN GALIAN NEGERI KEDAH DARUL AMAN ... RESPONDENTS (In the matter of the High Court of Malaya in Alor Setar In the State of Kedah Darul Aman, Malaysia Civil No: KA-22NCvC-77-09/2017 Between Abd Rashid Bin Mohd Idris (No. K/P 451021-02-5331) … Plaintiff

Ayaz Ahmad Bin Mohamed Salleh (No. K/P 400102-71-5043)

Ketua Pengarah Tanah Dan Galian Negeri Kedah Darul Aman …Defendants 24/10/2025 16:14:24 K-01(NCvC)(W)-272-06/2023 Kand. 71 CORAM: Y.A DATUK NANTHA BALAN A/L E.S MOORTHY, JCA Y.A DATO’ AHMAD KAMAL BIN MD. SHAHID, JCA Y.A DATO' WAN AHMAD FARID BIN WAN SALLEH, JCA

This appeal emanates from the decision of the Alor Setar High Court dated 29.5.2023 in Suit No. KA-22NCVC-77-09-2017 (“the 2017 Suit”). In the 2017 Suit, the learned Judge had set aside the entire judgment dated 1.11.2011 in Suit No. 21-2-2007 (“the 2007 Suit”), which involved the same parties on the ground, inter alia, that the 2011 Judgment, was obtained by fraud.

The brief facts of the case are as follows. The 2007 Suit

The 1st respondent herein, Abd Rashid bin Mohd Idris, is the plaintiff in the 2007 Suit. In the 2007 Suit, Rashid’s pleaded case was (“Rashid”) that he had been given a Power of Attorney (“PA”) to the appellant, Ayaz Ahmad (“Ayaz”). According to Rashid, Ayaz had fraudulently used the PA to transfer unto himself that piece of land known as HS(D) 2/94 Lot 3014, Mukim Air Putih, Daerah Pendang, Kedah.

At the High Court, Rashid sought inter alia, to set aside Ayaz’s registration of the Air Putih land and a declaration that Rashid is the legally registered owner of the same. As a consequential order, Rashid also sought for the registrar to re-register his name as the legal owner of the Air Putih land.

Ayaz’s defence to the claim is that the transfer of the Air Putih land to himself was lawful. It is Ayaz’s case that the transfer was done pursuant to an arrangement made between himself and Rashid via a letter dated 12.3.1981. In any event, the consideration for transfer was fully paid by Ayaz.

In the 2007 Suit, Ayaz also filed a counterclaim against Rashid inter alia for 50% ownership of 21 pieces of Malay Reservation lands which were registered in Rashid’s name. Ayaz also sought for a declaration that Rashid was holding another six pieces of Malay Reservation lands on trust for him.

In the 2007 Suit, Rashid’s main defence against Ayaz’s counterclaim is that Ayaz was not a Malay and therefore not entitled to ownership of Malay Reserve land.

At the end of a full trial, the Alor Setar High Court decided in favour of Ayaz. The decision, which was delivered on 1.11.2011 (“2011 Judgment”), inter alia, ruled that the use of the PA by Ayaz to transfer the Air Putih land to himself was not fraudulent. In view of the finding, Rashid’s claim was dismissed.

On Ayaz’s counterclaim, the learned Judicial Commissioner (“JC”) held that Ayaz, being a Malay, was entitled to the 50% ownership of the 21 pieces of Malay Reserve lands. The learned JC further found that Rashid held the six pieces of Malay Reserve lands on trust for Ayaz.

In her grounds of judgment, the learned JC inter alia, made the following findings:

Ayaz was not acting in excess of the PA. According to the learned JC, cl 23 of the PA empowered Ayaz to execute any conveyance deed for the purpose of dealing with the lands registered in Rashid’s name and referred thereto in the PA which included the Air Putih land.

Rashid had not proven fraud or the use of a void instrument in the transfer of the Air Putih land by Ayaz unto himself.

There was sufficient evidence at the trial that Ayaz was a Malay. According to Ayaz, he only knew much later that Basah binti Morad, a Malay, was his mother. This fact was confirmed by Basah’s statutory declaration (“SD”) dated 15.2.1987 and the evidence of Ausna binti Salleh, DW3. There was also evidence by Ayaz that he had previously purchased Malay reserved land Lot No. 1862 ASPK 13101 Mukim Kubang Pasu, Kedah.

As to the status of Ayaz as a Malay, the learned JC made the following remarks where D2 refers to Ayaz: As D2 is a Malay within the meaning of the Federal Constitution, he can hold Malay reserved land as in Article 89(6) “Malay reservation” means land to be reserved for alienation to Malays and “Malay” is defined to include any person who under the law of the State in which he is resident, is treated as Malay for the purpose of the reservation of land. Refer also to the definition of “Malay” in section 2 of the Kedah Malay Reservations Enactment No. 63 where a Malay means a “person professing the Muslim religion, and habitually speaking the Malay language of whose parents one at least is a person of Malayan race or of Arab descent”.

The learned JC also accepted Ayaz’s evidence during cross-examination that he was still in occupation of the Air Putih land and had been deriving income from the rubber plantation on the said land.

Aggrieved by the said decision, Rashid appealed to the Court of Appeal.

On 9.12.2013, this Court had dismissed Rashid’s appeal with costs.

On 8.7.2014, Rashid’s application for leave to appeal to the Federal Court was also dismissed with costs. The 2017 Suit

More than three years after his motion for leave to appeal was dismissed by the Federal Court, Rashid filed the 2017 Suit to set aside the 2011 Judgment on the ground that the 2011 Judgment was obtained by fraud. Rashid’s case was that Ayaz had given false evidence in the 2007 Suit in asserting that he was a Malay which prompted the High Court to allow his counterclaim.

The extension of Rashid’s contention is that since Ayaz was not a Malay, the 2011 Judgment ought to be set aside.

In para 13 of the Amended Statement of Claim, Rashid averred that the 2011 Judgment was obtained by fraud for the following reasons:

The SD, purportedly affirmed and signed by Basah before the Commissioner for Oaths Fong Meng Hung (“Mr. Fong”), and marked as Exh D-23, was a forged document on the grounds that on 15.2.1987 the said Mr. Fong had not yet been appointed as a Commissioner for Oaths. Rashid’s pleaded case was that Mr. Fong was only appointed as a Commissioner for Oaths on 1.1.1988.

In establishing his counterclaim in the 2007 Suit, Ayaz failed to disclose that under the National Registration Act 1959, his race was registered as an Indian.

At the end of the trial of 2017 Suit, the learned Judge had set aside the entire 2011 Judgment on the grounds that Rashid had successfully proved his case for fraud. In his grounds of judgment, the learned Judge made the following findings:

Rashid had established on a balance of probabilities that Basah’s SD in Exh D-23 in the 2007 Suit was a forged document and made fraudulently.

Ayaz had deceived the Court in the 2007 Suit by not disclosing that he was of Indian race.

In the circumstances, the learned Judge was of the opinion that the 2011 Judgment was obtained fraudulently and therefore ought to be set aside.

the registration of the name of Ayaz on 13.12.1998 on the Air Putih land is invalid and should be set aside.

Rashid is is the lawful registered owner of the Air Putih land.

The Registrar of Land Titles of the State of Kedah shall re-register the Air Putih land in Rashid’s name.

Aggrieved, Ayaz filed this Appeal before us. Rashid is the 1st respondent and the 2nd respondent is the Director of Land and Mines, Kedah. We shall refer to the Appellant and 1st respondent as Ayaz and Rashid respectively. At the Court of Appeal

The main issue in this appeal, we believe, is whether the Air Putih land is categorised as a Malay reserved land. If the answer is in the affirmative, then the next question of whether Ayaz is a Malay or otherwise, becomes critical to the outcome of this appeal.

If on the other hand, the answer is in the negative, then the issue of Ayaz being a Malay or not does not arise. What then transpired at the trial of the 2017 Suit? First, an official search on the Air Putih land revealed that it is not a Malay reserved land. The Sekatan Kepentingan or restriction in interest column reveals nothing. In short there was no restriction endorsed in the issue document of title (“IDT”) of the Air Putih land.

Secondly, Rashid himself at the trial of the 2017 Suit testified as follows: D/C: Just wanted to clarify that. Ok, sekarang, berkenaan dengan kes ini, tanah Air Putih itu dimiliki ataupun diambil oleh Defendan Pertama, tahun berapa? Itu berkenaan dengan Air Putih, sebelum atau selepas dijadikan freehold? Rashid: Selepas dijadikan freehold. D/C: Selepas? Rashid: Selepas.

This goes to show that even Rashid himself acknowledged that at the time of the transfer of the Air Putih land by Ayaz unto himself, the said land had already ceased to be Malay Reserved land. This is in contrast with Rashid’s pleaded position in the 2017 Suit as reflected in para 10.4(a) of the Amended Statement of Claim which states as follows: Plaintif telah memplidkan dalam prosiding guaman tersebut bahawa Defendan Pertama bukanlah seorang Melayu dan Defendan Pertama sebaliknya memplidkan bahawa beliau merupakan seorang Melayu. Plaintif seterusnya memplidkan bahawa guaman 21-2-2007 adalah salah tanggap dalam undang-undang kerana Mahkamah Tinggi tidak mempunyai bidang kuasa dan tidak patut mendengar perkara berkenaan menurut Seksyen 17 Enakmen No. 63 (Hakmilik Melayu) (“akta berkenaan”) bagi Negeri Kedah, di mana hanya segala perkara yang berkaitan dengan akta tersebut, termasuk samada seorang merupakan Melayu. Dalam keadaan ini, Mahkamah dalam guaman tersebut telah bertindak secara ultra vires apabila memutuskan bahawa Defendan Pertama merupakan seorang Melayu.

In answer to Q9 of his witness statement in Suit 2017, Rashid even conceded that the Air Putih land was not a Malay reserved land. The fact that the Air Putih land ceased to a Malay reserve land means that the question of Ayaz being a Malay is a not a determining factor in this dispute. On this ground alone, the appeal should be allowed.

However, for completeness and on the assumption that the Air Putih land is indeed a Malay reserve land, we will now address the issue whether Ayaz is a Malay within the meaning of s 2 of the Kedah Malay Reservations Enactment No. 3 (“the Enactment”). The Enactment defines a Malay as a “person professing the Muslim religion; and habitually speaking the Malay language and whose parents one at least is a person of Malayan race or of Arab descent”.

The learned JC in the 2007 Suit had made the following finding of fact at para [29] of her Ladyship’s judgment, where D2 refers to Ayaz: D2 had given evidence he habitually speaks the Malay language at home, that he conforms and practices Malay customs and is a Muslim. He came to Malaya on 23-3-1954 from India and he has lived here ever since. With regard to D2’s citizenship certificate (P2) where his race is stated as Indian and his mother’s name is given as Sabeera Begum he explained this was because when the certificate was prepared he thought Sabeera to be his mother and if she was an Indian he should also be one. D2 only knew much later that Basah binti Morad, a Malay, was his mother. The fact of Basah being his mother is confirmed by Basah’s statutory declaration to this effect on 15-2-1987 (D20) and the evidence of Ausna binti Salleh (DW3). Can the findings of fact in the 2011 Judgment be impeached?

As alluded to earlier, the findings of the learned JC in the 2007 Suit was affirmed by the Court of Appeal and leave to appeal was dismissed by the Federal Court. It took Rashid nearly six years from the 2011 Judgment to file the 2017 Suit.

By filing the 2017 Suit, Rashid is in effect, inviting the High Court to reverse the concurrent finding of facts of the High Court and the Court of Appeal in the 2011 Judgment as affirmed by the Federal Court. In short, Rashid had mounted a collateral attack in impeaching the 2011 Judgment on the grounds of fraud.

It is important to recall that Rashid’s pleaded case on the issue of fraud was that:

that the Statutory Declaration dated 15.2.1987 and purportedly affirmed by Fong Meng Hung was a false document and was created fraudulently; and

Ayaz had frauded and deceived the Court in the 2007 Suit by not disclosing the fact that he was of Indian race.

The law on this topic can be found in the judgment of the Federal Court in Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur [2016] 3 CLJ 1 FC. In that case, in an earlier suit (“the 2002 Suit”), the trial judge ruled in favour of the appellant and entered judgment against the respondents whereby the respondents were ordered to pay the appellant a sum of RM37,127,471.60. Aggrieved the respondents appealed to the Court of Appeal.

Not unlike this case, the Court of Appeal dismissed the respondents' appeal, and the respondents' application for leave to appeal to the Federal Court was also dismissed.

Subsequently, the respondents initiated a fresh action against the appellant to impeach and set aside the earlier judgment on the premise that the said judgment was entered into as a result of fraud or perjured evidence by the appellant's witness based on fresh evidence which could not have been obtained and adduced at the earlier trial.

The appellant later filed an application to strike out certain paragraphs in the Statement of Claim. In dismissing the application, the trial judge held that an allegation of fraud must be proved by way of evidence to be adduced during trial and if satisfactorily proven, the impugned judgment could be impeached or set aside. The decision of the High Court was affirmed by the Court of Appeal.

On appeal, the Federal Court held that, there was a serious conflict on material facts particularly relating to issues on the existence of fraud and whether the fresh evidence could not have been obtained with reasonable diligence to be adduced during the previous trial. On the status of the Commissioner for Oaths

Applying the law to the instant appeal, there are two observations to be made. First, there was no evidence to suggest that Ayaz was actively involved in actual positive fraud, “a meditated and intentional contrivance to keep the parties and the court in ignorance of the decree by the contrivance” within the meaning of Seruan Gemilang Makmur. This can be seen from the notes of evidence: D/C: Ya. Adakah En Rashid apa-apa bukti yang boleh diberi ke Mahkamah ini, tunjuk pada Mahkamah ini, ok, bahawa Dr Ayaz pada masa memberi keterangan di guaman 2007 sedar dan tahu dokumen ini, dokumen surat akuan itu tidak, itu salah dari undang-undang dan tidak boleh dipakai? Rashid: Dr Ayaz tahu ke atau tidak? D/C: Dia tahu ke? Ada apa-apa bukti yang boleh diberi pada Mahkamah ke untuk tunjuk Dr Ayaz ini tahu ini Commissioner for Oaths ini tidak ada certificate ke, tidak dilantik mengikut undang-undang? Dan walaupun dia tahu, dia beri, dia apa, tender dokumen itu. Memberi pada Mahkamah surat itu. P/C: I think we concede.

It is therefore clear from this exchange during cross-examination that counsel for Rashid conceded that Ayaz was not aware of the status of Mr. Fong, the Commissioner for Oaths who attested Basah’s SD at the material time. If Ayaz was not aware of the status then it is necessary to ask how could one conclude that that the alleged fraud, which must be actual and not constructive, was meditated and intentionally contrived?

In short, the learned Judge in the 2017 Suit had committed an appealable error in arriving at the conclusion that Ayaz was instrumental in the procurement of a forged document at the trial of the 2007 Suit.

Secondly, as per the proposition stated in Seruan Gemilang Makmur, Rashid as the plaintiff in the 2017 Suit must establish that the fresh evidence on the alleged fraud, if at all, could not have been obtained and adduced at the earlier trial in the 2007 Suit. We respectfully agree with learned counsel for Ayaz that Rashid could have, before the commencement of the trial of the 2007 Suit, written to the office of the Chief Registrar of the Federal Court to confirm the status of Mr. Fong Meng Hung. Unfortunately, at the Court below, Rashid did not proffer any explanation to establish why he could not, with reasonable diligence, have obtained the information concerning the status of Mr. Fong as the Commissioner for Oaths before the commencement of the trial of the 2007 Suit.

At the very least, Rashid could have explained that at the trial of the 2017 Suit, he had no reason to believe at the trial of the 2007 Suit that Mr. Fong was not a properly appointed Commissioner for Oaths at the time when he attested Basah’s SD. Rashid did not say so. He did not even explain why did it took him more than five years after the 2011 judgment to initiate the 2017 Suit. Did Ayaz deceive the Court in the 2007 Suit?

As to whether Ayaz, as D2, had deceived the court in the 2007 Suit, it is important to note that his Sijil Warganegara was produced as evidence and marked as Exh P-2. It was not in dispute that Exh P- 2 revealed that Ayaz was of Indian race (“Bangsa India”). However, at the 2007 trial, Ayaz explained to the Court that he only knew much later that Basah, a Malay, was his mother. This explanation was accepted by the learned JC at the 2007 trial.

Hence, it is not as if Ayaz had produced a forged National Registration Department (“JPN”) records stating that he was a Malay or that he did not produce the record at all. In that sense, the learned Judge in the 2017 Suit had erred when he arrived at the conclusion that (where Defendan Pertama refers to Ayaz): Defendan Pertama telah menipu Mahkamah dalam Guaman Sivil No. 21-2-2007 apabila tidak mendedahkan bahawa beliau adalah seorang berbangsa India. Ini kerana berdasarkan Sijil Warganegara Defendan Pertama bernombor 272960 dan bertarikh 27/7/1969 (rujuk muka surat 151, Ikatan B1) yang merupakan Rekod Rasmi Kerajaan di bawah Akta Pendaftaran Negara 1959, adalah jelas bahawa Defendan Pertama adalah seorang warganegara Malaysia berbangsa India. Namun, maklumat mengenai bangsa India ini tidak didedahkan oleh Defendan Pertama dalam Guaman Sivil No. 21-2-2007.

This finding is plainly incorrect. The fact remains that Exh P-2 was adduced and the status of Ayaz in the context of an Indian race was explained by him and accepted by the learned JC in the 2007 Suit. In the circumstances, the question of Ayaz deceiving the Court or had committed fraud at the 2007 trial does not arise.

For the reasons aforesaid, our conclusion is as follows:

The Air Putih land is not categorised as a Malay reserve land. There is no need for Ayaz to establish that he was a Malay within the meaning of s 2 of the Kedah Enactment. Ayaz was therefore entitled to transfer the said Land unto himself.

On this ground alone, the appeal should be allowed.

On the authority of Seruan Gemilang Makmur, the law allows a party to impeach or set aside an earlier judgment, in this case, the 2011 judgment, if it can be established that the said judgment was obtained by fraud or perjury committed by an adverse witness.

The law recognises this type of cause of action which is housed under s 44 of the Evidence Act 1950 which allows any party to a suit to show that any judgment was obtained by fraud or collusion.

The impeachment action must be by way of a fresh action, not in the same action where the impugned judgment was made. The action must be based on fresh evidence which could not have been obtained at the earlier trial.

Applying the aforesaid proposition to the facts of the appeal, it has not been shown that Ayaz was actively involved in actual positive fraud, “a meditated and intentional contrivance to keep the parties and the court in ignorance of the decree by the contrivance” at the trial of the 2007 Suit.

Even counsel for Rashid conceded during the trial of the 2017 Suit that Ayaz was not aware of the status of Mr. Fong, the Commissioner for Oaths, who attested Basah’s SD which formed part of the evidence adduced at the trial of the 2007 Suit.

Since actual pre-meditated positive fraud on the part of Ayaz had not been established, the learned Judge in the 2017 Suit had erred in setting aside the 2011 judgment on this ground.

Similarly, there was no fraud committed by Ayaz in the 2007 Suit in allegedly not declaring that the JPN described him as of Indian race. The description is stated in Exh P- 2 but Ayaz explained that at the material time he was unaware that Basah, a Malay, was his biological mother which explanation was accepted by the learned JC. 18 43. There was therefore a manifest error on the part of the learned Judge in finding that fraud had been established to warrant the impeachment and setting aside of the 2011 judgment which warrants appellate intervention.

This appeal is allowed. The order of the learned Judge dated 29.5.2023 is set aside. In the circumstances, the 2011 Judgment is hereby reinstated.

Costs is fixed at RM50,000 here and below (subject to allocator). Dated: 21 October 2025 -sgd- (WAN AHMAD FARID BIN WAN SALLEH) Judge Court of Appeal Counsels/Solicitors Appellant Dato’ V. Manokaran Yohendra Nadarajan Daniel Choo Vern Kai [Tetuan Yohendra Nadarajan] 1st Respondent T. Gunaseelan Keshvinjeet Singh Uma Gunaseelan Kumaradevan Rajadevan [Tetuan Gunaseelan & Associates]