Oon Hoon Nam v 1. ) Goh Wee Peng (WA-24NCvC-1664-10/2017)

1.

PENDAFTAR HAKMILIK TANAH WILAYAH PERSEKUTUAN KUALA LUMPUR …DEFENDANTS [to be heard together with OS No: WA-24NCVC-1862-11/2017 via Order dated 13.3.2018] 2 IN THE HIGH COURT MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORIES, MALAYSIA CIVIL DIVISION ORIGINATING SUMMON NO: WA-24NCVC-1862-11/2017 …PLAINTIFF

1.

PENDAFTAR HAKMILIK TANAH WILAYAH PERSEKUTUAN KUALA LUMPUR …DEFENDANTS GROUNDS OF JUDGMENT BACKGROUND FACTS CASE NO: WA-24NCVC-1664-10/2017 (ENCLOSURE 1) [1] This Originating Summons filed by the Plaintiff (1st Defendant in “1862” Suit) pursuant to Orders 7, 28 and 92 Rule 4 of the Rules of the Court 2012 (“ROC 2012”), Sections 326 and 417 National Land Code 1965 (“NLC 1965”) and/or Sections 4, 41 and 42 of the Specific Relief Act 1950 for the following: 3

A declaration that the Orders dated 27.11.2015 and 26.1.2016 obtained vide Kuala Lumpur High Court Suit No.: 22NCVC-278- 05/2015 (“Suit 278”) are nullities and/or null and void and consequent thereto, that the Suit 278 Orders be set aside;

Further and subsequent upon prayer 1 above, that the registration/endorsement of the 1st Defendant as trustee of the undivided ½ shares on the titles of the following properties:-

GM 1281 Lot 2446 Mukim Batu Tempat Segambut

(ii) GM 1282 Lot 2446 Mukim Batu Tempat Segambut Daerah Kuala Lumpur Negeri Wilayah Persekutuan Kuala Lumpur (“GM 1282”); (“the said Properties”) be cancelled with immediate effect by the 2nd Defendant;

That the Notice of Intended Removal of Caveat dated 7.9.2017 issued by the 2nd Defendant to the Plaintiff on Lot 2466 be set aside and any endorsement of such notice in the register of titles be cancelled; and 4

Costs to be borne by the 1st Defendant. BACKGROUND FACTS CASE NO: WA-24NCVC-1862-11/2017 (ENCLOSURE 1) [2] This Originating Summons filed by the Plaintiff (1st Defendant in “1664 Suit”) pursuant to Orders 7, 28 and 92 Rule 4 of the Rules of the Court 2012 (“ROC 2012”), sections 327 and 417 National Land Code 1965 and/or Sections 4, 41 and 42 of the Specific Relief Act 1950 for the following:

A declaration that the Order dated 6.9.2016 obtained vide Kuala Lumpur High Court Interpleader Originating Summons No: WA-24NCVC-139-01/2016 (“Suit 139”) is a nullity and/or null and void and consequent thereto, that Suit 139 Order be set aside;

A declaration that the Plaintiff is the Trustee of the undivided ½ shares on the titles of the following properties:

GM 1281 Lot 2446 Mukim Batu Tempat Segambut Daerah Kuala Lumpur Negeri Wilayah Persekutuan Kuala Lumpur (“GM 1281”); and 5

(ii) GM 1282 Lot 2446 Mukim Batu Tempat Segambut Daerah Kuala Lumpur Negeri Wilayah Persekutuan Kuala Lumpur (“GM 1282”); (“the said Properties”)

That the Private Caveat dated 7.9.2017 entered by the 1st Defendant vide Presentation No: PTB111/2017 be removed; and 4. Costs to be borne by the 1st Defendant. BRIEF FACTS CASE NO. WA-24NCVC-1664-10/2017 [3] The Plaintiff is the undivided ½ share owner of 2 properties vide Court Order dated 6.9.2016 obtained in Kuala Lumpur High Court Originating Summons No: WA-24NCVC-139-01/2016 (Suit 139”) (refer Exhibit “OHN-1”, Encl.2). The said properties are:-

GM 1281 Lot 2446 Mukim Batu Tempat Segambut Daerah Kuala Lumpur Negeri Wilayah Persekutuan Kuala Lumpur (“GM 1281”); and 6

(ii) GM 1282 Lot 2446 Mukim Batu Tempat Segambut Daerah Kuala Lumpur Negeri Wilayah Persekutuan Kuala Lumpur (“GM 1282”). [4] The Plaintiff then proceeded to take steps to endorse his name as the Registered Owner of the said Properties but it was later discovered that the 1st Defendant had been registered as Trustee of the undivided ½ shares in the Properties in place of CHOW FOONG CHUN by virtue of Court Orders dated 27.11.2015 and 26.1.2016 that the 1st Defendant had obtained through Kuala Lumpur High Court Suit No: 22NCVC-278-05/2015 (“Suit 278”) (refer Exhibit “OHN-2”, Encl.2). [5] However, the Plaintiff believed that the Court Orders given vide Suit 278 are nullities, to be disregarded and impeached and set aside for the following reasons: a) CHOW FOONG CHUN, the Defendant in the Suit 278 had passed away on 9.4.2012 which was before the filing of Suit 278 and when the Orders were obtained; and b) The Court lacked jurisdiction to grant the Order on 26.11.2016 to allow the amendment and substitute the name of CHOW 7 FOONG CHUN as the Defendant in Suit 278 to the 1st Defendant’s name as Trustee of the undivided ½ shares in the Properties. [6] The Plaintiff then lodged caveats on the respective undivided ½ shares in the Properties to protect the Plaintiff ownership interest as follows:

the 1st time on 30.11.2010 vide Pres No. PTB4945/2010 (at that time the 2 properties were still registered in the name of CHOW

(ii) the 2nd time on 16.1.2017 vide Pres. No. PTB111/2017 (when the Plaintiff discovered that the 1st Defendant had been registered as Trustee on the titles). [7] However, the Plaintiff then received a Notice of Intended Removal of Caveat dated 7.9.2017 from the 2nd Defendant with regards to Lot 2466 and it will be cancelled/will lapse at the expiry of 2 months from 7.9.2017 i.e. after 6.11.2017. [8] Therefore, the Plaintiff as the lawful owner of the undivided ½ share of the 2 properties should be allowed to lodge caveat to protect the 8 Plaintiff ownership interest as the 1st Defendant was unlawfully registered pursuant to the 278 Suit Orders which are null and void. BRIEF FACTS CASE NO. WA-24NCVC-1862-11/2017 [9] The Plaintiff was registered as Trustee of the said land through an Orders dated 27.11.2015 and 26.1.2016 obtained in Kuala Lumpur High Court Suit No.: 22NCVC-278-05/2015 (“Suit 278”). [10] The said Land was previously owned by OON KHENG BI who passed away on 18.8.1931. After his death, the said Land was transmitted to OON CHOOI GUAN, as Representative on 9.9.1931. [11] However, OON CHOOI GUAN failed to transfer the said Land to OON KHENG BI’s beneficiaries and OON KHENG BI left his only son WEE TIANHE who passed away in December 1998 and survived by his five (5) children who are WEN RIXING, WEN RICHANG, WEN LIHUA, WEN AIZHI and WEN YAOZHI. [12] For the purpose of handling WEN TIANHE’s estate, WEE TIANHE’s daughters, WEN LIHAU, WEN AIZHI and WEN YAOZHI had authorized WEN RIXING and WEN RICHANG to handle the matters on their behalf. 9 [13] On 26th October 2007, a person named CHOW FOONG CHUN was registered as the Administrator of OON CHOOI GUAN for the said Land pursuant to the Grant of Letters of Administration issued by Kuala Lumpur High Court Petition No: S-31-896-2005 and subsequently on 30th June 2010, CHOW FOONG CHUN transferred the said Land to herself. [14] Subsequently, it was discovered and affirmed by the Kuala Lumpur High Court through letter dated 5.2.2015 (refer Exhibit “GWP-3”, Encl. 9) that the Kuala Lumpur High Court Petition No: S-31-896-2005 was fake because the cases registered in the Kuala Lumpur High Court for year 2005 was only up to 830 i.e. the last case registered was case No: 31-830-2005. The Plaintiff then, contacted the grandsons of OON KHENG BI which are WEN RIXING and WEN RICHANG and obtained from them the Power of Attorneys to file a suit against CHOW FOONG CHUN . [15] On 27.11.2015 the Plaintiff then filed a civil suit at the Kuala Lumpur High Court Suit No: 22NCVC-278-05/2015 against CHOW FOONG CHUN and obtained an Order to re-register OON KHENG BI as the owner of the Properties but the Land Office was unable to register a deceased person i.e. OON KHENG BI as land owner. 10 [16] Therefore, the Plaintiff made an application to amend that Order and subsequently the Plaintiff obtained the Amendment Order dated 27.1.2016 to register the Plaintiff as the Trustee of the said Land. [17] On 16.1.2017, the 1st Defendant lodged a private caveat on the said Land as the 1st Defendant alleged that the 1st Defendant is the absolute owner of the said Land pursuant to a Court Order dated 6.9.2016 that was obtained via Kuala Lumpur High Court Interpleader Originating Summons No: 24NCVC-139-01/2016 (“Suit 139”). [18] The 1st Defendant in this case was named as 2nd Defendant in Suit 139 and he has obtained Order in Suit 139 on the basis that the 1st Defendant is the great-grandson of OON CHOOI GUAN who was the owner of the said Land (even though OON CHOOI GUAN was just a Representative). [19] The Plaintiff then made an application to remove the caveat on 7.9.2017 against Lot 2466 and subsequently, the First Defendant filed the Originating Summon in Kuala Lumpur High Court No: WA-24NCVC-1664-10/2017 to set aside Order in Suit 278 and to maintain his private caveat, thus lead to the filing of this action by the Plaintiff. 11 DECISION OF THE COURT [20] Having perused both the Originating Summons 1664 and 1862, the Court finds that there are serious disputes as to the material facts. Going through the affidavits filed by both the parties in both suits, it is clear that there are conflicts in evidence. Due to that fact, the Court is of the opinion, that the matter in dispute can only be resolved properly and satisfactorily by way of oral evidence adduced through the witnesses present in court to testify and be cross-examined for final determination. [21] Therefore, the Court orders that both the actions to proceed as Writ pursuant to Order 28 Rule 8 of the ROC 2012 and that, the affidavits shall stand as pleadings with liberty to the parties to add thereto or to apply for particulars thereof. [22] Order 28 Rule 8 of the Rules of Court reads: “Continuation of proceedings as if cause or matter begun by writ (O.28.r.8)

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 12 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.

Where the Court decides to make such an order referred to in rule (1), Order 34 shall apply with the necessary modifications.” [23] It is clear that the Court has a discretionary power under Order 28 rule 8 of the ROC 2012 to make an order for the conversion of the proceedings from originating summons to writ where it appears that there are disputes of facts as can be seen in both the cases here which cannot be resolved by affidavit evidence alone. [24] In the case of Ting Ling Kiew & Anor v Tang Eng Iron Works Co. Ltd [1992] 1 CLJ (Rep) 331 the Supreme Court held: “[1] The conflicts in the evidence can only be properly and satisfactorily resolved if oral evidence is adduced and 13 witnesses cross examined on their evidence which, however, is not possible in proceedings begun by originating summons. [2]… [3] The Judge is not precluded in the exercise of his discretion from making an order that the proceedings should be continued as if begun by writ pursuant to O.28 r.8(1) RHC bearing in mind also O.5.r.2(b) RHC. Indeed, it is within his absolute discretion and he is justified to do so in the circumstances of this case in order to resolve the conflicts of affidavit evidence and reach a well balanced decision.” [25] In both the cases before the Court, it is clear that various inconsistencies can be seen in the Affidavits filed in both Suits and there are matters which had not been satisfactorily explained in the Affidavits. Both parties raised issues involving Orders given by the court in Suit 139 and Suit 278 which are in conflicts with one another. This conflicts in the evidence in the opinion of the Court, could only be properly and satisfactorily be resolved if oral evidence were to be adduced and witnesses being cross-examined especially when the main issue here is on the issue of ownership of the Properties. 14 [26] The prayers in the Plaintiff’s Originating Summons in Suit 1664 are –

A declaration that the Orders dated 27.11.2015 and 26.1/.016 obtained vide Kuala Lumpur High Court Suit No.: 22NCVC-278- 05/2015 (“the 278 Suit Orders”) are nullities and/or null and void; and

The 278 Suit Orders be set aside and the registration/endorsement of the 1st Defendant as trustee of the undivided ½ shares on the titles of the following properties:-

GM 1281 Lot 2446 Mukim Batu Tempat Segambut

(ii) GM 1282 Lot 2446 Mukim Batu Tempat Segambut Daerah Kuala Lumpur Negeri Wilayah Persekutuan Kuala Lumpur (“GM 1282”) be cancelled with immediate effect by the 2nd Defendant. The 1st Defendant who is the Plaintiff in Suit 1862 prays for –

A declaration that the Orders dated 6.9.2016 obtained vide Kuala Lumpur High Court Interpleader Originating Summons 15 No.: WA-24NCVC-139-01/2016 (“IOS 139 Order”) are nullities and/or null and void and consequent thereto, that the 139 Suit Orders be set aside;

A declaration that the Plaintiff is the Trustee of the undivided ½ shares on the titles of the following properties:

GM 1281 Lot 2446 Mukim Batu Tempat Segambut

(ii) GM 1282 Lot 2446 Mukim Batu Tempat Segambut Daerah Kuala Lumpur Negeri Wilayah Persekutuan Kuala Lumpur (“GM 1282”); [27] Going through the Originating Summons of the parties, it is clear that the subject matter in dispute by both the parties involve the ownership of the same properties. From the affidavits filed by both parties, it can be seen that there are conflicting and disputing facts raised which can only be determined and resolved by viva voce evidence. [28] Therefore, in view of the conflicting and disputed facts between the parties in both the cases, it is the Court’s opinion that it would be 16 inappropriate for both the Suits to be decided summarily by relying on affidavit evidence. In the case of Abdul Majid v Haji Abdul Razak [1971] 2 MLJ 228, the Court held that it will refuse to decide question of facts on an originating summons. Where evidence need to be led, then the originating summons was not a suitable process for the determination of the issues raised. [29] In the case of Ng Wan Siew v Teoh Sin [1963] 29 MLJ 103 Thompson J make this observation: “Before departing from the case I should make one observation. I would have made it earlier had it not been of academic interest as far as this case is concerned by reason of the order as to costs made in the court below. It is to the effect that these proceedings should have been started by writ and not by originating summons. Theoretically they could have been started either by writ or by originating summons but it has been said again and again that when it is known there is going to be conflict of testimony and a necessity for taking parol evidence, the proceedings should be commenced by writ and a plaintiff if successful may be deprived of any additional costs caused by 17 his having commenced proceedings by way of originating summons.” [30] Therefore, for the above reasons, the Court orders that both the Suits is to proceed by way of Writ pursuant to Order 28 Rule 8 of the ROC

Dated 27 April 2018. …………………………………… (ROHANI BINTI ISMAIL) JUDICIAL COMMISSIONER CIVIL HIGH COURT (NCVC 8) KUALA LUMPUR. Ms. Renu Zechariah & Ms. Cheryl Kwan (Counsels for the Plaintiff / Appellant) Messrs Rosley Zechariah Ms. Tan Xiang Yi & Ms. Lee Sok Wah (Counsels for the 1st Defendant / 1st Respondent) Messrs Lee Sok Wah & Co.