Lembaga Pengelola Sekolah, Sekolah Jenis Kebangsaan (C) Chiao Ching, v Jemaah Pengurusan Tadika Chiao Ching (J-02(NCVC)(W)-2525-12/2017)

LEMBAGA PENGELOLA SEKOLAH

CHAI SOON HIN (No K/P: 500619-01-5259)

CHIA SWEE WENG (No K/P: 500201-01-5315)

GOH BEE HOCK (No K/P: 580704-01-6099) ……………..PERAYU-PERAYU

THEN SWEE KONG (No K/P: 530204-01-5449) (dalam kapasiti sebagai Pengerusi Jemaah Pengurusan Tadika Chiao Ching)

NGO AI WAN (No K/P: 680918-01-5858) (dalam kapasiti sebagai Ahli Jawatankuasa Jemaah Pengurusan Tadika Chiao Ching dan Guru Besar Tadika Chiao Ching) ……RESPONDEN-RESPONDEN 2 [DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM

THEN SWEE KONG (No K/P: 530204-01-5449) (dalam kapasiti sebagai Pengerusi Jemaah Pengurusan Tadika Chiao Ching)

NGO AI WAN (No K/P: 680918-01-5858) (dalam kapasiti sebagai Ahli Jawatankuasa Jemaah Pengurusan Tadika Chiao Ching dan Guru Besar Tadika Chiao Ching) ……………..PLAINTIF-PLAINTIF

LEMBAGA PENGELOLA SEKOLAH

CHAI SOON HIN (No K/P: 500619-01-5259)

CHIA SWEE WENG (No K/P: 500201-01-5315)

CHONG KOK LIANG @ CHANG TONG NAM (No K/P: 410317-06-5067)

GOH BEE HOCK (No K/P: 580704-01-6099) ………..….DEFENDAN-DEFENDAN] ____________________________________________________________ 3 CORUM: NALLINI PATHMANATHAN, JCA ZABARIAH MOHD YUSOF, JCA STEPHEN CHUNG HIAN GUAN, JCA JUDGMENT [1] The appeal by the appellants (Defendants in the court below) was against the decision by the learned High Court Judge who found that there exists a ‘public trust’ over a piece of land in Endau, Mersing, Johor, which gives a kindergarten known as Tadika Chiao Ching and/or the respondents (plaintiffs in the court below) the right to continue to remain and operate on the land. [2] After hearing submissions from both parties and upon perusing the Appeal Records together with the learned trial Judge’s grounds of judgment, we found no merits in the appeal and accordingly dismissed the appeal with costs. Our reasons for doing so appear herein below. [3] For purposes of this judgment, parties shall be referred to, as they were in the court below. 4 BACKGROUND FACTS: [4] The dispute herein revolves around the right of a private kindergarten known as Tadika Chiao Ching (the kindergarten) to remain and continue to operate on a piece of land held under GRN 89452, Lot 25, Bandar Padang Endau, Daerah Mersing, Negeri Johor (the land). [5] The registered proprietors of the land as of 1962 were Har Weng Koo and Chia Chong @ Chia Cheong, each owning ½ share. Chia Chong @ Chia Cheong is the 2nd defendant’s father-in-law. [6] There are 3 different entities operating on the land at the material time and to date, namely:

(i) Sekolah Rendah Kebangsaan (C) Chiao Ching ( the school);

(i) Chai Soon Hin (2nd defendant);

3.1.2. All the immovable properties possessed by the Lembaga Pengelola Sekolah” which is not given or provided by the Government, but possessed by the public donation shall be held under the administration of “Pemegang Amanah Hartanah Sekolah”. [17] On the same date as the Trust Deed, an Agreement was executed on 27.2.2012 between Chia Swee Weng & Chai Soon Hin, the 4 trustees of the school with the Jawatankuasa Pengurusan Rumah Berhala (the temple), 8 allowing the temple to have a right to use the land (page 3106 of RA Part B & C Volume 2(O)). This was approved in the Annual General Meeting and Extraordinary General Meeting of the Lembaga Pengelola of the school. [18] All was well between the 3 entities on the land, until disputes arose in 2009 with regard to the presence of the kindergarten on the land, when one Tan Ah Fatt was appointed the Chairman of the 1st defendant. [19] In or about 2009, the 1st defendant and/or the school started demanding a monthly contribution in the sum of RM500.00 from the kindergarten. The kindergarten was forced to start collecting fees of RM60.00 per month per student (the fee collection ceased around July 2013). However, the defendants said that these payments were for purposes of paying utilities and general maintenance of the building. [20] The plaintiffs averred that Tan Ah Fatt called a meeting with the parents of students at the kindergarten where he announced that the kindergarten would cease operation in 2014. He claimed that the kindergarten was a private kindergarten and issued press notices and/or media statements that the facilities upon the land would be demolished. He met with sponsors and proposed preventing the kindergarten from using the building and facilities on the land as he intended to set up another kindergarten to be owned by the 1st defendant. [21] The plaintiffs also averred that Tan Ah Fatt caused the Johor State Education Department to issue a notice to the kindergarten that it was no 9 longer allowed to use their former building after 15.11.2014 and it was no longer allowed to use the name “Chiao Ching”. [22] Originally the school’s building consisted of 2 single storey blocks. Around 2010, it obtained approval to build a new 4 storey building on the land to replace the old building. The 1st defendant collected donations amounting to RM4 million to build the new building. [23] Thereabout in May or June 2014, the 1st defendant decided to demolish the old building. While the kindergarten was still operating, Tan Ah Fatt demolished part of the old building and facilities on the land without any meeting or consultation with the plaintiffs. To this, the defendants denied and claimed that the 1st defendant had set up a committee to discuss the matter with the kindergarten. It was contended that during the meeting between the committee and the kindergarten on 6.3.2013, the kindergarten agreed to move out of the land if a government pre-school was established on the land, as long as they had early notice. This was stated in the grounds of the learned Judge’s grounds of judgment, however we only found minutes of such meetings in Chinese characters without any translation in Bahasa Malaysia or English in the Record of Appeal. The defendants claimed that the kindergarten’s action shows that they had no beneficial rights over the land and had no legitimate expectation to remain on the land permanently. [24] The plaintiffs discovered after the school holidays in June 2014 that one out of two blocks had been demolished, leaving the kindergarten to operate from 1 block without toilet facilities. In addition, the fragments and 10 debris from the building construction were not properly disposed of exposing the kindergarten students to risks of injury. The plaintiffs and teachers of the kindergarten, had to clear and fenced the area around the kindergarten for the safety of the students. [25] After the school had moved to the new building, Tan Ah Fatt did not allow the kindergarten to use the new building and facilities. [26] He then issued a notice regarding registration and student intake under the name of Tadika “Qiao Qing” in or around August 2014. [27] The plaintiffs do not acknowledge the effectiveness and validity of the Trust Deed dated 27.2.2012. This was because the execution page, which was tendered in court earlier by the defendants, and also a copy which had been lodged by the defendants for registration with the Land Office, had not been executed by the representative of the beneficiaries (i.e. the Lembaga Pengelola of the school). However, the witness column was executed by the solicitor and the document was stamped. This was discovered by the plaintiffs, after having conducted a search at the Land Office Registry in relation to the registration of the trustee on the title of the land. The plaintiffs extracted a certified true copy of the Trust Deed which had been lodged at the Land Office for registration which does not have the signature of the beneficiaries at the execution page. However, at trial the defendants through their solicitors produced a further copy of the Trust Deed which bears the signature of Tan Ah Fatt as signatory of the beneficiaries. The explanation was that they had inadvertently used the unsigned copy when 11 tendering the Trust Deed in court. The plaintiffs submitted that this was only signed after the event and hence challenged the authenticity and validity of the Trust Deed. In any event this has not been addressed by the learned trial Judge and presumably Her Ladyship had accepted the explanation of the defendants. [28] In the year 2012, the 1st defendant made an application to change the land status from ‘none’ to ‘school and house of worship’. [29] After attempts to discuss the matter with the defendants and/or their agents failed, the plaintiffs filed this suit seeking an injunction to restrain the defendants from evicting the plaintiffs and/or the kindergarten from the land and using the buildings and facilities on the land. Parties recorded a consent judgment dated 4.12.2014 which allowed the 1st plaintiff to operate from 4 rooms on the ground floor of the new school building in 2015, pending the disposal of the suit. [30] However, the plaintiffs claimed that despite the consent judgment, the 1st defendant and/or its representatives did not allow the kindergarten to operate effectively. [31] Eventually from 12.01.2015, the kindergarten was only allowed to use the new building after the morning session of primary school students ended at 1.00 pm. Since the kindergarten’s hours were from 12.30 – 4.30 pm, the teachers had to set up chairs and tables in the school hall for the first class 12 of the day, then clear away the chairs and tables before beginning class in the proper classrooms. [32] The plaintiffs claimed that the land was held by the defendants under a public trust and/or constructive trust for the benefit and use of the kindergarten and primary school, and they had a legitimate expectation to continue to run the kindergarten in the buildings and facilities on the land. [33] The reliefs sought by the plaintiffs are:

(a) Satu perintah pengistiharan deklarasi bahawa Tadika Chiao Ching adalah benefisiari kepada tanah yang dipegang di bawah GRN 89452, Lot 25, Bandar Padang Endau, Daerah Mersing, negeri Johor dan mempunyai alamat di Jalan Ariffin, bandar Endau 86900 Mersing, Johor, bersama dengan bangunan dan kelengkapan yang didirikan di tanah tersebut di bawah amanah konstruktif (constructive trust) dan berhak untuk menggunakan bangunan dan kelengkapan di tanah tanpa syarat; (aa) Secara alternative kepada (a) satu deklarasi bahawa Tanah tersebut di pegang dibawah “public trust” untuk tujuan SRJK (C) tersebut, khususnya untuk operasi berterusan SRJK (C) Tadika Tersebut; (aaa) Satu perintah bahawa Mahkamah Yang Mulia ini melantik Ngo Ai Wan…dan Then Swee Kong… sebagai pemegang-pemegang Amanah Tambahan bagi Tanah tersebut, Pemegang-pemegang Tanah tersebut memegang Tanah tersebut untuk manfaat SRJK (C) tersebut, Tadika tersebut dan SRJK (C) tersebut, Tadika tersebut beroperasi oleh jawatankuasa masing-masing atau sepertimana yang ditubuhkan untuk tujuan tersebut; 13

(b) Satu perintah injunksi untuk menghalang Defendan-Defendan dan/atau ejennya daripada mengusir Plaintif dan/atau Tadika Chiao Ching dari Tanah tersebut dan menggunakan bangunan dan kelengkapan di Tanah tersebut;

(c) Satu perintah injunksi untuk menghalang Defendan-Defendan dan/atau ejennya daripada meruntuhkan dan/atau merobohkan bangunan dan kelengkapan yang lama di Tanah tersebut atau secara alternatifnya satu perintah injunksi mandatory supaya Tadika Chiao Ching berhak untuk menggunakan bangunan dan kelengkapan yang baru di Tanah tersebut;

(d) Satu perintah injunksi untuk menghalang Defendan Pertama dan/atau ejennya daripada campur tangan/mengganggu segala pengurusan berkenaan dengan hal ehwal Tadika Chiao Ching;

(e) Gantirugi am;

(f) Kos; dan

(g) Lain-lain relif…” The defendants in turn counterclaimed for the following reliefs:

(a) satu deklarasi bahawa Tadika Chiao Ching dan Plaintif-Plaintif dan guru-guru di Tadika Chiao Ching hendaklah berhenti beroperasi dan menjalankan kelas-kelas tadika di atas tanah yang dipegang di bawah Lot 25, Bandar Padang Endau, Daerah Mersing , Negeri Johor dengan serta merta.;

(b) bahawa Tadika Chiao Ching dan Paintif-Plaintif dan guru-guru di Tadika Chiao Ching hendaklah keluar daripada tanah yang dipegang di bawah 14 Lot 25, Bandar Padang Endau, Daerah Mersing, negeri Johor di dalam tempoh tujuh (7) hari dari Perintah ini;

(c) Gantirugi untuk ditaksirkan;

(d) Kos;

(e) Apa-apa relif lain yang di fikirkan adil dan sesuai oleh Mahkamah yang Mulia ini.” [34] The plaintiffs sued the 4th defendant in his capacity as one of the 4 trustees who was appointed to hold the land for and on behalf of the Lembaga Pengelola for the school. However, the 4th defendant did not defend against the claim. Instead, he testified as one of the witnesses for the plaintiffs (SP4) and supported the contention that the kindergarten was a beneficiary of the trust over the land. The findings of the learned trial Judge: [35] The learned trial Judge found that the plaintiffs had, on a balance of probabilities, proved a ‘public trust’ over the land which enable the kindergarten and/or the plaintiffs to continue to remain on the land. However, Her Ladyship did not explain at what point was the public trust created and as to how she arrived at such findings. [36] The learned trial Judge also found from the evidence of witnesses that it was the intention of the late Har Weng Koo and Chiao Ching that the land is for the benefit of the public of Endau area. 15 [37] There was no evidence, be it the Will or the Trust Deed that were executed, that expressly state that the kindergarten is not allowed to continue to operate on the land. This is borne out from the evidence of Chai Soon Hin (SD 2) and Chia Swee Weng (SD 6) who said in their testimonies that they had never made any attempt to evict the kindergarten nor informed the kindergarten or the plaintiffs of the eviction from the land at any point in time. [38] The acts of the defendants in attempting to oust the kindergarten from continuing to operate on the land are in violation of the public trust created. This is borne out from the evidence of the Chong Kok Liang (4th defendant). [39] The historical facts show that the intention of the settlors was that the 3, namely, the school, the kindergarten and the temple are to co-exist side by side. [40] The evidence of the defendants’ witnesses were mostly evasive when they were confronted with the issue of the rights of the kindergarten to remain on the land. [41] The High Court allowed the claim by the plaintiffs as follows: “ i. Satu deklarasi bahawa Tanah tersebut GRN 89452, Lot 25, Bandar Padang Endau, Daerah Mersing, Negeri Johor dipegang dibawah “public trust” untuk tujuan SRJK (C ) Chiao Ching tersebut, Tadika 16 Chiao Ching Tersebut khususnya untuk operasi beterusan SRJK (C) Chiao Ching tersebut dan Tadika Chiao Ching tersebut; ii. Satu perintah bahawa Mahkamah Yang Mulia ini melantik Guru Besar dan Pengerusi bagi Tadika Chiao Ching sebagai pemegang-pemegang Amanah Tambahan bagi Tanah tersebut, pemegang-pemegang Tanah tersebut memegang Tanah tersebut untuk manfaat SRJK (C) Chiao Ching tersebut, Tadika Chiao Ching tersebut dan SRJK (C) tersebut, Tadika tersebut beroperasi oleh jawatankuasa masing-masing atau sepertimana yang ditubuhkan untuk tujuan tersebut; iii. Satu perintah injunksi untuk menghalang Defendan-Defendan dan/atau ejennya daripada mengusir Plaintif dan/atau Tadika Chiao Ching dari Tanah tersebut dan menggunakan bangunan dan kelengkapan di tanah tersebut; iv. Satu perintah injunksi untuk menghalang Defendan Pertama dan/atau ejennya daripada campur tangan/mengganggu segala pengurusan berkenaan dengan hal ehwal Tadika Chiao Ching; v. Gantirugi am untuk ditaksir oleh Penolong Kanan Pendaftar; vi. Kos sebanyak RM 50, 000.00 dibayar oleh Defendan-Defendan kecuali Defendan Ke-4 kepada Plaintif-Plaintif; dan vii. Tuntutan Balas Defendan Pertama, Defendan Kedua, Defendan Ketiga dan Defendan Kelima ditolak.” (Refer to page 106 of the CB Jilid 1) 17 The Issues to be determined: [42] The primary issue revolves on the true intention of the late Har Weng Koo when he bequeathed his ½ share interest of the land in his Will to the school. Although the land was subsequently transferred to the 4 trustees by Chai Soon Hin (the executors of the estate of Har Weng Koo) and Chia Swee Weng (Attorney for Chia Sai Kew, the beneficiary to Chia Chong @ Chia Cheong) to be held for and on behalf of the beneficial owner, namely, the Lembaga Pengelola of the school, it is not the intention of the 4 trustees that is the issue before the court but the intention of the late Har Weng Koo when he willed the land to the school. [43] Hence, can an intention be inferred on the part of Har Weng Koo that when he gave the land to “SEKOLAH RENDAH JENIS KEBANGSAAN (CINA) CHIAO CHING” as stated in his Will, that it included giving/allowing the kindergarten to remain and continue to operate on the land? Nothing was mentioned of the kindergarten in the Will. For that matter, even the temple was not mentioned. The defendants asserted that a true construction of the purported “trust” created by Har Weng Koo is crystal clear that it was for the benefit of the school only. Whilst the plaintiffs were of the view that one must look at the history of the case and that one of the trustees, namely Chong Kok Liang had given testimony that he had known the late Har Weng Koo in his lifetime 18 and that it was his intention that the land is to be used also for the kindergarten. The submission by the defendants: [44] Initially, the submission of the defendants was premised on the rights of parties as conferred by “public trust” and/or “private trust” to remain on the land. Subsequently, the submission was more focussed on the issue of a charitable trust. It is the contention of the defendants that if the subject trust was set up for general charitable purposes or for a specific charitable object, what needs to be considered so as to ascertain the intention of the settlor will be none other than the documents itself. The subject trust is a direct, express and specific trust, as evidenced by the following documents:

(a) The Will of the late Har Weng Koo: Har Weng Koo had evinced his intention clearly in his Will (pages 465-467 of CCB) dated 15.10.1983 wherein he states, inter alia: “I direct that all my half share in all that piece of land held under ….to SEKOLAH RENDAH JENIS KEBANGSAAN (C) ….SITUATED AT Jalan Ariffin, Endau , Johor..” 19

(b) The irrevocable power of attorney by Chia Sai Kew to Chia Swee Weng on 8.12.2005 (pages 504-508 of CCB of Volume 2);

(c) The trust deed between Chia Swee Weng, Chai Soon Hin, Goh Bee Hock and Chong Kok Liang @ Chang Tong Nam and Lembaga Pengelola Sekolah, SRJK (C) Chiao Ching dated 27.2.2012 (pages 472-478 CCB);

(d) Form 14A dated 5.1.2012 together with the stamp duty receipt and covering letter showing a registered transfer of land from landowners namely Chia Swee Weng and Chia Soon Hin to the school. On the grant its ownership stated as follows: “Rekod Ketuanpunyaan” as follows: “CHAI SOON HIN …CHIA SWEE WENG….CHONG KOK LIANG @ Chong Tong Nam….dan Goh Bee Hock….memegang amanah bagi pihak LEMBAGA PENGELOLA SEKOLAH, SEKOLAH JENIS KEBANGSAAN (C ) CHIAO CHING.” (hereinafter collectively referred to as “the documents”) [45] The documents are clear evidence that the subject trust was made for the advancement of the school only. The kindergarten was never mentioned at all in any of the documents as aforesaid. There never was any general charitable intention to include the kindergarten in any form 20 whatsoever, but for specific charitable purpose namely the school. The trust was not set up for a general charitable purpose. [46] As the documents are in writing and are clearly stated, there is no necessity to admit any oral evidence to contradict what are clear statements from the documents. Oral evidence is not allowed to contradict the clear intention of the settlor as stated in the documents. For this the defendants referred to section 91 and 92 of the Evidence Act 1950, whereby the documents fall within the meaning of these sections as they were related to disposition of the property, namely the land. Section 91 and 92 of the Evidence Act 1950 precludes the admission of oral evidence for the purposes of ascertaining the terms of the documents. Therefore, the only admissible evidence to construe the terms of the trust and the intention of the settlor are the documents and no extrinsic oral evidence shall be admitted in evidence for the purpose of contradicting its terms. One is not bound to look behind the reasons or circumstances that creates the trust. [47] As the documents had not been challenged or rendered ineffective and they are still subsisting, the express terms of the documents prevails, namely that the trust created is only for the school, SRJK (C) Chiao Ching. [48] Further, in the present case, it was submitted that the settlors gave effect to the subject trust by transferring the land to the trustees by way of Form 14A dated 5.1.2012. It is an express trust in which the trustees namely the 1st, 2nd and 3rd plaintiffs and PW 4 (the trustees) would hold the land for the benefit of the school. 21 [49] The learned trial Judge had erred when Her Ladyship relied on the oral evidence of PW 4, Chong Kok Liang (who is also the 4th defendant), one of the trustees to infer intention of the settlor. It was submitted that the oral evidence adduced by PW 4 was hearsay and that he is an interested witness, as he had direct and/or pecuniary interest in the outcome of the suit. Therefore, it was submitted that his evidence should be given less weight and to be taken with caution. [50] On the scope of the charitable trust, it was submitted that the public element essential to the validity of the subject trust was present as the object of the settlor’s gift were a class of the public, namely the students of SRJK (C) Chiao Ching only. The benefit was for a section of the community only. The school was set up in 1953 way before the kindergarten was set up in 1976. Therefore the appellant submitted that the subject trust was a valid charitable trust for a specific purpose namely the provision of the school only. [51] On the issue of how the trust deed is to be construed in light of the Will and the intention of the settlor, it was submitted by the defendants that the late Har Weng Koo had clearly expressed his intention by way of his Will, which was in writing that his share of the land to be given to the school only. The late Har Weng Koo was aware of the existence of the kindergarten, yet he did not make provision for it when he made the Will. He has effectively stated his intention not to include the kindergarten from the subject trust. 22 [52] The constitution of the school provides that it cannot hold property on its own as it is a government school. Therefore, any movable properties possessed by the Lembaga Pengelola Sekolah which is not provided by or belong to the government, but was contributed by public donation, shall be held by the trustees. Thereafter, Chia Soon Hin (being executor of the late Har Weng Koo’s estate) and Chia Swee Weng (being attorney by way of irrevocable power of attorney) had transferred each of their ½ share to the Lembaga Pengelola of the school. They then executed the transfer Form 14A in the name of the 4 trustees which was subsequently registered in the land office on 12.3.2012. The trust deed was executed by the 4 trustees and the school (beneficial owner), expressly providing that the trustees were appointed to hold the said property in equal share for the benefit of the school. No provisions were ever made for any interest in favour of the kindergarten. [53] On the effect of registration under the National Land Code 1965, vis-a-vis a trust created for charitable purposes, it was submitted that the issue document of title reflects what is the true position as to the registered owner or interest holder of the land. It is no longer in dispute that the trustees holds the land on trust for the benefit of the school only, namely, SRJK (C) Chiao Ching. [54] The defendants submitted that the learned trial Judge erred when she said in her judgment that there is no evidence that at any material time, whether it be in the Will or the Trust Deed which were created, that state that the kindergarten was not allowed to continue to operate on the land. 23 The learned trial Judge also found that the witnesses of the Defendants, namely the beneficiaries of the settlor, Chai Soon Hin (SD 2) and Chia Swee Weng (SD 6) had said and admitted that they had never shown, by conduct or intention to evict or discontinue the operation of the kindergarten from/on the land. Further the learned trial Judge also erred when she found that the kindergarten as a bare licensee or occupant acquired the ownership or interest over the land premised on the absence of the conduct of the defendants in evicting the kindergarten from operating on the land. [55] The defendants submitted that the kindergarten was only given a license to operate on the land, which is subject to termination at will. So long as the beneficial owners of the land, the school, permit the kindergarten to operate on the land, they can enjoy the said land during the permissible period. But once the license is terminated, that license ends, which is what happened in this case. [56] It was also submitted that the learned trial Judge failed to consider that the plaintiffs came to court with unclean hands when: i) the plaintiffs’ claim is against the Will and the intention of the original land owners; ii) the plaintiffs had never produced any documents evidencing that the original owner had intended to let the kindergarten to continue its operation permanently on the said land; 24 iii) the plaintiff purportedly delayed in bringing up the issue and had waited more than 35 years purportedly after the 4 storeys new buildings is completed on the land. It is trite law that the court will not lend a hand to parties that came to court with unclean hands. [57] Hence the defendants submitted that the learned trial Judge erred as Her Ladyship’s decision is premised on insufficient judicial appreciation of the evidence and failed to take into account contemporaneous and/or relevant evidence and instead had taken into account irrelevant and incorrect evidence. The submissions by the plaintiffs: [58] The plaintiffs in their initial submission were referring to public trust for public purposes which are charitable in which they are governed by the law relating to charitable trust. The plaintiffs in their submission outlined the factors which support the existence of such public trust, namely: i) the school, the temple and the kindergarten have co-existed side by side on the land for more than 40 years, which is not being disputed by the appellant; ii) the school, the temple and the kindergarten were built and set up for the benefit of the public of Endau area. 25 It was submitted that the late Har Weng Koo and the settlors had intended that the land was to be held on trust for the use of the school, the kindergarten and the temple. [59] The intention of the settlor is a question of fact that can be proved by taking into consideration all evidence, oral and documentary inclusive. The settlor’s intention was expressed during his lifetime to create the charitable trust over the land, namely, to be used for the school, the kindergarten and the temple jointly for the benefit of the people in Endau. Therefore, the evidence of persons who knew the settlor personally would be relevant and paramount. [60] The 3rd defendant, who is Chia Chong’s son, agreed in cross examination that he was carrying into effect the intention of his father to allow the school, the kindergarten and the temple to operate on the land. It was only in 2009 when a new Chairman, Tan Ah Fatt, was appointed to the Lembaga Pengelola of the school, that he had a change of stand in the matter. [61] The task of the court when interpreting a Will is ultimately to give effect to the intention of the deceased. Such intention is to be gathered from the language of the Will read in light of the circumstances in which the Will was made, which would be most relevant in deciphering the intention of the maker. The plaintiffs submitted that bearing in mind the principles as enunciated, it is apposite to state that the Will: 26 a) does not mention the word “trust”. It merely states that Har Weng Koo’s interest in the land “be given to” the SRJK (C) Chiao Ching; b) does not state the purpose of giving the land to the SRJK (C) Chiao Ching or how the land to be used by SRJK (C) Chiao Ching. Hence, going back to the intention of Har Weng Koo, given the circumstances when he made the Will, which was to establish a charitable trust for the school, the temple and the kindergarten. The facts show that when the Will was drafted in 1983, the kindergarten has been around and in operation for the last 7 years. More importantly, the kindergarten was established by Har Weng Koo himself and he had allowed its operation for around 14 years on the said land until his demise in 1990. The kindergarten continued to operate until 2009 when circumstances changed with the appointment of the new appointees of Lembaga Pengelola of the school. Therefore, it is submitted by the plaintiffs that the scope of the said trust is to include all the 3 uses which is submitted to be not inconsistent with the wording of the Will. [62] As far as the Trust Deed is concerned, it cannot be read to run contrary to the charitable trust established by the settlors. In addition, one cannot ignore the evidence of one of the trustees, Chong Kok Liang (PW 4), who knew the late Har Weng Koo in his lifetime, who confirmed that the said land is to be used harmoniously for the school, the temple and the kindergarten. 27 [63] On the registration issue vis-a-vis the provisions of the National Land Code 1965, the plaintiffs relied on Registrar of Titles, Johore v Temenggong Securities Ltd [1976] 2 MLJ 44 whereby Lord Diplock said that the NLC “does not prevent or restrict the creation of beneficial interests in land whether under express trusts or under constructive or resulting trusts arising by operation of Malayan law, which in this respect is derived from the rules of equity in force in England in 1956…..Interest in land that are unregistrable fall into 3 categories viz, tenancies for a term of less than three years, liens created by deposit of instruments of title as security for a loan, and beneficial interests under a trust affecting the land…”. [64] It was also submitted by the plaintiffs that the creation of trust is not due to the registration under section 344 (1) of the NLC. It is created elsewhere, not by registration under the code. It is submitted that all trusts created and recognised under English law are protected under the Code and it is equally effective without reference to the registration provision of the NLC. In other words, there is no requirement to have the trust registered or endorsed on the issue document of title, although such registration would provide notice to the world that the land is subject to a trust. Therefore, the validity of the existence of the trust is not dependent on the registration element under the code. The non-registration or non-endorsement of the trust in the title is irrelevant in determining the existence of the creation of the charitable trust. [65] Therefore, the learned trial Judge did not err when she found that there was a public trust created which gives the plaintiffs and the 28 kindergarten the right to remain and continue to operate on the land together with the school and the temple, which is consistent with the intention of the founder of the kindergarten. OUR FINDINGS: A. Charitable trust Issue: [66] From the submissions of the parties, both parties had not indicated when exactly the “charitable trust” was created. Was it when the Will of Har Weng Koo was executed or in the Trust Deed itself?. The way the submissions were presented is such that the purported trust/purpose of the purported trust appears to be interchangeably present in the Will and in the Trust Deed. It is pertinent to state that the Will by the late Har Weng Koo did not mention the setting up of any “trust’ save for the part that his half share in the land be given absolutely to the school. A testamentary trust or a trust in a will is a legal and fiduciary relationship created through explicit instructions in a deceased's will. There are no such instructions by the late Har Weng Koo in the Will that created any legal or fiduciary relationship with anybody termed as trustee. The 4 trustees were not appointed by Har Weng Koo in the Will. Hence it cannot be said that there is a testamentary trust created by the said Will. 29 The fact is that the land is a gift willed by the late Har Weng Koo to the school. There was no mention of how the land is to be used or the purpose of the land willed. It was an outright gift. The trust was created subsequently vide the Trust Deed dated 27.2.2012 by the Lembaga Pengelola of the school. The settlor is the Lembaga Pengelola of the school and not Har Weng Koo, as submitted by the plaintiffs. Therefore the pivotal issue is not the intention of the Lembaga Pengelola of the school that needs to be ascertained by the court, but that of the donor of the land, namely Har Weng Koo. [67] Can the word in the Will that referred to “SRJK (C) Chiao Ching” be construed so as to include the kindergarten? The plaintiffs referred us to the Court of Appeal case of Singapore in Re Valibhoy Charitable Trust [1976] 1 MLJ 207, The Attorney General v Lim Poh Neo [1976] MLJ 233, Re Faraker [1911-13] All ER Rep 488, to aid in the construction of the Will, which we found, are not directly on point with our present case as those cases dealt with the doctrine of cy-pres when there were subsequent failures or initial failures of the charitable trust originally created. The trend of the courts was to construe the Will to uphold a general paramount intention of charity of the testator even if the original trust is no longer in existence or no longer possible to be implemented due to some events or circumstances and to carry into effect cypress by a scheme which conforms to the testator’s directions as closely as possible. 30 [68] In construing the words in the Will of Har Weng Koo, they are far from being uncertain and neither can it be called vague. The plaintiffs submitted that it is of no relevance that the intention of the late Har Weng Koo in regard to the kindergarten was not mentioned in his Will, or reduced in writing by both Chia Cheong and Har Weng Koo and referred us to Kishabai v Jaikishan [1981] 2 MLJ 289. We have no quarrel with the general principle laid down in the said case that there is no specific form of words or expressions, necessary to constitute a trust, if upon reading it, a trust was intended. However, as we explained earlier in this judgment, there was no trust created under the Will of Har Weng Koo. Upon reading the Will, it cannot be construed that he intended to create a trust there. B. The Construction of the Will in light of Har Weng Koo’s intention whether the gift of the land can include the kindergarten: [69] As far as Har Weng Koo is concerned, the plaintiff accepts that his Will only mentions the school. [70] In interpreting a Will, the task of the court is to give effect to the intention of the testator vis-a-vis Har Weng Koo. The surrounding circumstances in the making of the Will and the language of the Will would be important factors to take into account to determine the true intention of the testator. In Hsu Yik Chai v Hsu Yaw Tang [1982] 2 MLJ 227, Lee Hun Hoe CJ Borneo said, at p.230: 31 “The purpose of construction is to give effect to the intention of the testator expressed in the words of the will. On that point we would only refer to what Lord Romer said in Perrin v Morgan [1943] AC 399 at page 420, 420 and also quoted by the learned judge as follows: “My Lords, I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made. To understand the language employed the court is entitled, to use a familiar expression, to sit in the testator’s armchair. When seated there, however, the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said - …” The Supreme Court of India had laid down the principles governing the interpretation of wills in Navneet Lal alias Rangi v Gokul and others

(a) Chai Soon Hin (2nd defendant) was appointed as trustee representing the interest of the family members and executors to Har Weng Koo; 40

(b) Chia Swee Weng (3rd defendant) was appointed as trustee as he is the son to Chia Cheong, representing the other owner of ½ share of the land;

(c) Goh Bee Hock (5th defendant) was appointed as trustee to represent the Lembaga Pengelola of the school;

(d) Chong Kok Liang (4th defendant) was appointed as trustees representing the interest of the temple and the kindergarten as he was the Chairman for the kindergarten and the temple in 2012. (pages 2482-2485 of RA. Part B & C Volume 2 (L). The appointment of the 4 trustees to represent the various interests of the 3 entities supports the contention of the plaintiffs that the 3 entities were there on the land to stay, at the point of the execution of the Trust Deed in 2012. Therefore, it would not be correct to conclude that the kindergarten ceased to have the right to remain on the land after the gift of the land to the school, more so after the Trust Deed was executed. [82] The evidence of Chai Soon Hin (SD 2) and Chia Swee Weng (SD6), who are the authorised representatives of the donors of the land and material witnesses in this suit is that, at all material times for more than 38 years, SD 2 and SD 6 had never interfered nor taken any steps after their respective appointments to challenge the existence of the kindergarten on 41 the land. SD 6 even agreed in cross examination that he was carrying into effect the intention of his late father to allow the school, the kindergarten and the temple to operate on the land until 2009 until the appointment of the new Chairman of the Lembaga Pengelola of the school, when he took a different stand (page 2480 RA Part B & C )Vol 2 (L)). SD 2 and SD 6 took the position that they had no intentions to evict the kindergarten at all material times and only recently in 2009 did they have a change of heart. [83] Prior to 2009, there was never any resistance for the kindergarten to remain and operate on the land. What is important to note is that when the Trust Deed was executed in 2012 and the 2nd - 5th defendants were appointed as trustees, the 3 entities were already in existence on the land. The trustees had knowledge of the presence of the kindergarten on the land yet they did not provide for the rights of the kindergarten. [84] Further, if it is true that the trustees are following strictly as what the donor purportedly intended, namely that the land was only meant to be used for the school and nothing else, then why was an agreement executed between the temple and the Lembaga Pengelola of the school which provides for the temple’s rights to continue to remain on the land? If true to their words that the defendants were adhering to the very words of the donor, then the agreement with the temple should also not be executed. Why bend backwards for the temple? It is to be noted that the Trust Deed was executed on 27.2.2012, the very same date the temple agreement was executed. The temple was at the back of the minds of the Lembaga Pengelola when they executed the Trust Deed, but why the exclusion of the 42 kindergarten specifically? What was the repulsive factor that discriminated the kindergarten from having to continue to remain on the land? After all it could just continue to be a feeder kindergarten to the school, which logically would be convenient as the infrastructure and staff are already emplaced, as compared to setting up an entirely new kindergarten. [85] In addition, if it is true that the trustees were keeping to the words of the Will, that the land was only meant for the school, then logically, the trustees would have taken steps immediately upon the demise of Har Weng Koo and Chia Cheong to have the title of the land registered in the name of the school only. No such action was taken by SD 2 and SD 6 until 2012. [86] The kindergarten has existed for more than 38 years on the land for the purpose of providing pre school education for children aged between 4- 6 years old. The existence of the kindergarten is intended for the benefit of the public of the Endau area. It is a fact that the donors of the land and their successors had no objection in relation to the right of the kindergarten to remain on the land until recently in 2009, which supports the claim by the plaintiff that the kindergarten is entitled to, and has a right to remain on the land and continue operating to serve the public of the Endau area. [87] Therefore, we found that the learned trial Judge was not plainly wrong when Her Ladyship found from the evidence of the witnesses that it was the intention of the late Har Weng Koo and Chiao Cheng that the land is for the benefit for the public of Endau area and that there was no evidence to show that the late Har Weng Koo had the intention to oust the kindergarten 43 from the land. The evidence of SD 2 and SD 6 confirmed that there was never any attempt or act to oust the kindergarten from the land. [88] Although there was no trust created by the late Har Weng Koo but a gift of the land to the school, the intention of the gift was to include the kindergarten to exist side by side with the school, to serve the public of Endau. It was submitted by the defendant that the words in the Will are clear that the land is for the SEKOLAH RENDAH JENIS KEBANGSAAN (CINA) CHIAO CHING and no one else. The words in the Will cannot by any stretch of the imagination include the kindergarten. However, it must be borne in mind that the donor is a Chinese and the Will is in English and the name of the school is stated in the Malay language. There is a probability that the word “school” was “lost in translation” amidst the 3 languages, after taking into account the historical matrix of the case and the fact that the testator himself was the founder of the kindergarten which has been in existence without any interference since 1976. This may appear to be speculative on our part, but a note of caution on our part, namely, that it is one of the factors that we took into consideration in addition to the other overwhelming factors which we had alluded to, in the earlier part of this judgment. It is highly unlikely that the testator would want to remove the kindergarten that he had founded since the early days. In this respect the case of Paul v Constance is instructive where Lord Justice Scarman in his judgment said that: “When one bears in mind the unsophisticated character of the deceased and his relationship with the plaintiff during the last few years of his life, 44 the words that he did use on more than one occasion, “This money is as much yours as mine”,” convey clearly a present declaration that the existing fund was as much the plaintiff’s as his own.” Similarly, in our present case, taking into account the historical scenario, the origins of the kindergarten together with the school and its relationship with the donor and the acts of the successive heirs towards the kindergarten over the years, these factors clearly show an intention to include the kindergarten as part and parcel of the school. It is there to stay, having the right to remain and continue to operate on the land. On the issue of registration: [89] It is without doubt that the registration was under the name of the trustees of the school. The trustees are to hold the land for and on behalf of the school. We have decided that the gift of the land by the late Har Weng Koo was for the school which includes the kindergarten which also caters for the education of the public in Endau area. As far as the registration of the land is concerned, it is not an issue so long as the kindergarten is allowed to remain on the land as the gift by Har Weng koo is to include the kindergarten as well. It is left to the trustees to manage the land in accordance to the intention of the donor, Har Weng Koo. 45 Issue on damages: [90] We noted that amongst the reliefs prayed for, by the plaintiffs is for general damages, which the learned trial Judge had granted, as can be seen from Her Ladyship’s Order. However, nowhere in the grounds of judgment of the learned trial Judge did she address the basis for awarding such relief. Parties also did not submit on the issue of general damages before us, be it oral or written. The Records of Appeal also does not disclose that submissions were made before the learned trial Judge in the court below as to general damages. Despite that, the learned trial Judge found it fit to award general damages. In view that the issue on general damages was never addressed in the court below, and the basis of granting such order was never in the grounds of judgment of the learned trial Judge, the order in granting general damages is unsubstantiated and should not have been ordered. The learned trial Judge did not address her mind on the issue of general damages at all in her grounds. Before us, the issue was not taken up by the plaintiffs’ counsel in their submissions, we take it that the plaintiffs had abandoned the relief. Therefore, we set aside the order for general damages. 46 Conclusion: [91] We unanimously dismissed the appeal by the defendant with costs. We affirm the order of the High Court with slight variations. For clarity, the Order will read as follows: i. Satu perintah pengistiharan deklarasi bahawa Tadika Chiao Ching adalah benefisiari kepada tanah yang dipegang di bawah GRN 89452, Lot 25, Bandar Padang Endau, Daerah Mersing, negeri Johor dan mempunyai alamat di Jalan Ariffin, Bandar Endau 86900 Mersing, Johor, bersama dengan bangunan dan kelengkapan yang didirikan di tanah tersebut dan berhak untuk menggunakan bangunan dan kelengkapan di tanah tanpa syarat; ii. Satu perintah bahawa Mahkamah Yang Mulia ini melantik Guru Besar dan Pengerusi bagi Tadika Chiao Ching sebagai pemegang-pemegang Amanah Tambahan bagi Tanah tersebut, pemegang-pemegang Tanah tersebut memegang Tanah tersebut untuk manfaat SRJK (C) Chiao Ching tersebut, Tadika Chiao Ching tersebut dan SRJK (C) tersebut, Tadika tersebut beroperasi oleh jawatankuasa masing-masing atau sepertimana yang ditubuhkan untuk tujuan tersebut; iii. Kos sebanyak RM10,000 untuk dibayar oleh Defendan-Defendan (kecuali Defendan Ke empat) kepada Plaintif-Plaintif tertakluk kepada allokatur dan deposit dikembalikan. iv. Tuntutan Balas Defendan Pertama, Defendan Kedua, Defendan Ketiga dan Defendan Kelima ditolak.” 47 [92] We set aside the order of the High Court in awarding for general damages and we also set aside the injunction as it is no longer necessary after granting the declarations as stated in paragraphs (i) and (ii) of paragraph 91 above. The award of costs in the High Court is maintained. Signed by: Zabariah Mohd Yusof Judge of the Court of Appeal Putrajaya Date: 7.12.2018 COUNSEL: KF Wong, Jeyakumar Sundralingam and HS Lim for the Appellants (Messrs. Tea Kelvin Kang & Co.) Datuk Malik Imtiaz Sarwar, S Kanaga Sundram, Surendra Ananthi & Cindy Tan for the Respondents (Messrs. Raja Seelan & Associates)