Pang Shyian Juang (JA-31NCvC-417-10/2018)

The present grounds of judgment concerns the Intervener’s application in Enclosure 47 to set aside an order dated 10.08.2023 (Enclosure 23) on the basis that it is a nullity as a whole.

Having read the submissions put forth by the parties and all the cause papers filed, this Court allows the Intervener’s application in Enclosure 47 with costs of RM 3,000.00 to be paid by the Applicant to the Intervener.

Dissatisfied with this Court’s decision, the Applicant had filed an appeal at the Court of Appeal. Facts of the case

For a better understanding of Enclosure 47, it would be useful to examine the factual matrix of the present case.

Phang Hoon Ying (“PHY”) had died intestate on 16.09.1991. S/N iHK9kqnLpEKchklX84d3xA

At the time of his death, PHY was the registered proprietor of a property known as H.S.(M) 2680, Lot 5350, Tempat Sg Lenek II, Mukim Chaah, Daerah Labis, Negeri Johor (“said property”) which is the subject matter of the present case which significance would be apparent in this grounds of judgment later.

PHY’s beneficiaries includes his wife, five (5) sons and three (3) daughters.

The intervener (“I”) and Pang Seng Hee (“PSH”) were sons of PHY referred to above. Their significance would appear later in this judgment.

PSH subsequently passed away in 2014.

In 2018, the Applicant (“A”) obtained letters of administration for PSH’s estate. A is thus the administrator to PSH’s estate.

I then petitioned to be the administrator of PHY’s estate.

This application was allowed on 15.10.2019 by the Estate Distribution Officer, Segamat Land Administrator (“SLA”) pursuant S/N iHK9kqnLpEKchklX84d3xA to Section 13 (Order for distribution of small estate), Small Estates (Distribution) Act 1955.

During hearing before the SLA, A had among others claimed that the said property was fully owned by PSH. This allegation was supported by statutory declarations adduced by A (these could be found at exhibit PSJ-1 in A’s Affidavit in Support of Enclosure 23 accordingly. A’s allegation was disputed by PHY’s beneficiaries including I.

The SLA rejected A’s contention and found that the Statutory Declarations relied upon by A were not instruments of transfer within the meaning of the National Land Code 1965.

At the same time, all of PHY’s beneficiaries including A agreed on oath for I to be the administrator of PHY’s estate and the distribution of among others the said property. The distribution order issued by the SLA in Form F dated 15.10.2019 states that the said property is to be divided among all the beneficiaries as agreed by them.

A then filed for an extension of time to appeal against SLA’s decision with regards to the distribution order and the grant of letters of administration in respect of PHY’s estate. The High Court on 06.10.2020 (Originating Summons JA-24NCVC-343-06/2020) dismissed A’s application. This decision was upheld by the Court of S/N iHK9kqnLpEKchklX84d3xA Appeal which subsequently dismissed A’s appeal (Civil Appeal No J-01(NCVC)(A)-595-11/2020) on 07.01.2023.

Subsequent to the Court of Appeal decision above, I had via his solicitor’s letter dated 27.03.2023 requested from A’s solicitors among others for the return of the title documents to the said property to him as the administrator of PHY’s estate.

A took the position as evident from his solicitor’s letter dated 06.04.2023 that the said property belongs to PSH and thus A refused to accede to I’s request.

Consequently, I conducted a land search at the land office on the said property. I discovered that while the said property was registered in his name as the administrator to PHY’s estate, there was a private caveat that has been inserted on the said property by

I’s request as could be seen in his solicitor’s letter dated 16.05.2023 for the return of the title documents to the said property and for the withdrawal of A’s private caveat was not evidently fruitful.

I then filed Originating Summons JA-24NCVC-599-06/2023 (“OS 599”) for the private caveat to be removed and for A to return the title documents to the said property to him. S/N iHK9kqnLpEKchklX84d3xA

Before OS 599 could be disposed but upon receiving the cause papers related to OS 599, A filed Enclosure 23 on 06.07.2023 to amend the list of assets of PSH to include the said property.

An examination of Enclosure 23 shows that A’s application to amend PSH’s list of assets was predicated on the basis that the said property’s omission was accidental (“tidak disengajakan”) and that A’s other uncles (I included) were not pursuing any claims on the said property.

The Deputy Registrar on an ex-parte basis allowed enclosure 23 on 10.08.2023. PSH’s list of assets now includes the said property and reads as follows: - “5. Sebidang tanah yang dikenali sebagai HSM 2680 Lot 5350, Mukim Chaah, Daerah Labis, Negeri Johor dengan keluasan sekitar 2.437 hektar.”.

Nothing further was mentioned concerning Enclosure 23 until this Court ordered A to serve all the cause papers in Enclosure 23 to I on 16.10.2023 in the course of proceedings concerning OS 599.

On 21.01.2024, this Court allowed OS 599.

I’s application to intervene (Enclosure 28) was also allowed by this Court on 08.08.2024 whereupon I filed Enclosure 47. S/N iHK9kqnLpEKchklX84d3xA This Court’s Jurisdiction to hear Enclosure 47

It is trite law that the Court has no jurisdiction over any person except those before it. Refer to Kheng Chwee Lian v Wong Tak Thong [1983] CLJ Rep 195 (Federal Court): - “In our judgment, the Court, below has no jurisdiction inherent or otherwise, over any person other than those properly brought before it, as parties or as persons treated as if they were parties under statutory provisions (Brydges v. Brydges & Wood [1909] p. 187; Re Shephared [1890] 43 Ch D 131 and Coleman v. Coleman [1920] p. 71). The terms " judgment " and " order " in the widest sense may be said to include any decision given by a Court on a question or questions at issue between the parties to a proceeding properly before the Court [see para. 501 of Halsbury's Laws of England (4th Edn.,) Vol., 26 at p. 237]. and at para. 550 the following passage appears: Subject to appeal and to being amended or set aside, a judgment is conclusive as between the parties and their privies and is conclusive evidence against all the world of its existence, date and legal consequences.”.

The exception to the above is when the case concerns an injunction that may be made binding upon servants and agents of a party although they themselves are not parties to the proceedings.

Secondly is, where a person who is an interested party is not a party to the proceedings but is in reality fighting the suit from behind the hedge. Refer to Dewan Undangan Negeri Kelantan & Anor v S/N iHK9kqnLpEKchklX84d3xA Nordin Salleh & Anor [1992] 2 CLJ 1140 (Supreme Court) at page 1146: - “As for the other contention based upon the breach of the rule of natural justice, to wit, that neither Haji Samat nor Haji Mahmud had been made parties to the proceedings in the court below seeking declaratory reliefs, and so had been denied the opportunity of being heard, it is true that the grant of such reliefs would, and as events turned out, did directly affect their position, and therefore they should have been made parties to those proceedings. That, however, is not conclusive of the issue before us. Those proceedings had right from the start received considerable treatment in the local press, and both Haji Samat and Haji Mahmud must have known about them; yet they remained passive and did nothing; they made no attempt to apply to be joined as defendants, which they certainly could have done. A denial of the opportunity of being heard is a wrong which is personal to the party aggrieved. If therefore such a party does not complain, it is not the affair of others to complain. I find, therefore, that there is substance in the submission of counsel for the plaintiffs that the State Legislative Assembly of Kelantan is, in reality, as he put it, fighting the suit on behalf of Haji Samat and Haji Mahmud.”.

Returning to the present case, it is sufficient to state that the exceptions mentioned above to the general rule expounded in Kheng Chwee Lian has no application here.

At the same time, it is undisputed that the Deputy Registrar allowed Enclosure 23 on an ex-parte basis with no opportunity of being heard extended to I as the administrator of PHY’s estate and the present proprietor of the said property. S/N iHK9kqnLpEKchklX84d3xA

This Court is vested with the necessary jurisdiction to hear Enclosure 47 and subsequently set aside Enclosure 23. Refer to Order 32 Rule 6 Rules of Court 2012 which reads: - “6. Order made ex parte may be set aside (O. 32 r. 6) The Court may set aside an order made ex parte.”.

On the application of Order 32 Rule 6 Rules of Court 2012, refer to Loo Chay Meng v Ong Cheng Hoe (Gamuda Sdn Bhd, Granishee) [1990] 1 MLJ 445 (High Court) pages 446-447: - “In as much as O 49 is silent, say, in respect of the form the application for a garnishee order should take, it is equally silent in respect of the court's jurisdiction to set aside an ex parte order made in the O 49 application. However, just as O 32 r 1 provides the answer as to what form should be used in making such an application, O 32 r 6 provides the answer as to the extent of the court's jurisdiction in respect of ex parte orders. 'The court may set aside an order made ex parte' says r 6 and it is of general application and in my judgment it may and should be applied in O 49 proceedings where relevant. Having concluded as I have done that the order made on 13 April 1988 was an ex parte order, it follows that the court has jurisdiction provided by O 32 r 6 to have it set aside.”.

Refer also to Order 42 Rule 13 Rules of Court 2012 which reads:- “Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment shall make an application to the Court and serve it on the S/N iHK9kqnLpEKchklX84d3xA party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him.”.

As Enclosure 23 affects I’s rights, he is entitled to approach this Court to set aside Enclosure 23 as the court is not functus officio in this regard. What more when I was not heard at all before Enclosure 23 allowed in the first place. Refer to Lai Cheng Ooi (F) v Lim San Peen and Other Appeals [2017] CLJU 1390 (Court of Appeal): - “[12] In this connection, we hasten to observe that any ex-parte order is liable to be set aside by the party who had been served with such an order or by any party which is affected by such order. In setting aside such an order, the court is certainly not functus officio as the right of the party affected to be heard remains subsisting. It is not mandatory, as the appellant appears to suggest, to appeal or to file separate proceedings to impeach the ex-parte order. In summary, orders obtained in breach of the rules of natural justice can be set aside in the same proceedings or in collateral proceedings ex debito justitiae (see Selvam Holdings (M) Sdn Bhd v. Grant Kenyon & Eckhardt Sdn Bhd; (BSN Commercial Bank (M) Bhd & Ors, interveners) [2000] 3 CLJ 16; [2000] 3 MLJ 201 ("Selvam Holdings ").”.

This Court would not refuse I’s application in Enclosure 47 as to do so would cause injustice to I as Enclosure 23 has the effect of prejudicing PHY’s estate which is now deprived of the said property which has been included into PSH’s estate.

Thus, this Court finds that this is a fit and proper case for this Court to exercise its inherent jurisdiction in order to prevent injustice S/N iHK9kqnLpEKchklX84d3xA against PHY’s estate. Read Order 92 Rule 4 Rules of Court 2012 which states: - “For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”.

The defect in Enclosure 23 is the non-addition of I as a party when I as the administrator to PHY’s estate is the rightful owner to the said property. His absence renders a great injustice as the said property is now included as part of PSH’s estate contrary to the SLA’s order dated 15.10.2019. Refer to Arab Malaysian Finance Bhd v Badiaddin Bin Mohd Mahidin & Anor [1998] 2 CLJ 75 (Federal Court): - “The discretion to invoke the inherent jurisdiction should also be exercised judicially in exceptional cases where the defect is of such a serious nature that there is a real need to set aside the defective order to enable the court to do justice. In all cases the normal appeal procedure should be adopted to set aside a defective order, unless the aggrieved party could bring himself within the special exception.”. Whether the said property forms part of PSH’s estate

The crux of I’s application in Enclosure 47 concerns the pertinent question as to whether the said property forms part of PSH’s estate. S/N iHK9kqnLpEKchklX84d3xA

The answer to the above would be in the negative for the following reasons.

Firstly, at the time of his death, the said property belongs to PHY and not PSH. PHY in the present case is the late father of PSH while A is PSH’s son.

The above finding is supported by the land search done on the said property by I as could be seen in I’s Affidavit No 1 at page 42 (Exhibit

The said property found to be belonging to PHY who died intestate, it is trite law that his estate is to be distributed in accordance with Section 4(2) Distribution Act 1958 and Section 6(1)(e) Distribution Act 1958.

Section 4(2) Distribution Act 1958 reads as follows: - “(2) The distribution of the immovable property of a person deceased intestate shall be regulated by this Act wherever he may have been domiciled at the time of his death.”.

Section 6 (1) (e) Distribution Act 1958 on the other hand reads: - “(1) After the commencement of this Act, if any person shall die intestate as to any property to which he is beneficially entitled for an interest which does not cease on his death, such property or the S/N iHK9kqnLpEKchklX84d3xA proceeds thereof after payment thereout of the expenses of due administration shall, subject to the provisions of section 4, be distributed in the manner or be held on the trusts mentioned in this section, namely- ………

if an intestate dies leaving a spouse and issue but no parent or parents, the surviving spouse shall be entitled to one-third of the estate and the issue the remaining two-thirds”.

The said property being valued at less than RM 2 Million, it constitutes a small estate within the meaning of Section 3(2) Small Estate (Distribution) Act 1955 and falls within the SLA’s jurisdiction to be dealt with following Section 4(2) Small Estate (Distribution) Act 1955 which states: - “(2) The Estate Distribution Officer of the State where a petition has been lodged or in the case of more than one petition has been lodged, the Estate Distribution Officer of the State where the first petition has been lodged, shall have exclusive jurisdiction to deal with the distribution and administration of the whole estate wherever situated.”.

On this note, at the time the SLA made the order dated 15.10.2019, Section 3 (2) Small Estate (Distribution) Act 1955 defined a small estate as follows: - “(2) For the purposes of this Act a small estate means an estate of a deceased person consisting of any property situated in any State and not exceeding two million ringgits in total value.”. S/N iHK9kqnLpEKchklX84d3xA

The provision above was however amended via Small Estates (Distribution) (Amendment) Act 2022 (Act A1643) (which came into force on 15.07.2024) whereby the amended Section 3 (2) of Small Estate (Distribution) Act 1955 now defines a small estate as follows:- “(2) For the purposes of this Act a small estate means an estate of a deceased person consisting of any property situated in any State and not exceeding five million ringgits in total value.”.

Accordingly, this court would still be following the old Section 3 (2) Small Estates (Distribution) Act 1955 for the purposes of the present case.

The SLA had already made an order dated 15.10.2019 for the distribution of the said property among PHY’s beneficiaries. More importantly, the SLA had rejected statutory declarations purportedly showing PSH’s ownership of the said property. According to the SLA:- “Surat akuan yang disebutkan oleh Pang Shyian Juang ada difailkan dan di semak, dan surat akuan tersebut ditolak daripada menjadi dokumen sokongan bahawa harta itu telah diserah oleh waris simati yang lain kepada Pang Seng Hee. …”.

Crucially, all of PHY’s beneficiaries which includes A consented on oath for I’s appointment as administrator of PHY’s estate and for the said property to be distributed among all of PHY’s beneficiaries. This S/N iHK9kqnLpEKchklX84d3xA formed the basis for the distribution of the said property by the SLA. On A’s evidence before the SLA, reference may made below: - “Keterangan Pang Shyian Juang (790308015073) Hubungan: Anak Lelaki Bersumpang dalam Bahasa Malaysia/ Inggeris/ Tamil/Cina dan faham akan maksudnya. Saya cucu simati setuju dan akui semuanya benar. Saya tiada apa-apa bantahan atau tambahan, setuju dengan pembahagian yang dicadangkan. Itu sahaja.”.

The SLA’s order then states: - “Sehubungan itu, satu perintah pembahagian berbentuk Surat Kuasa Mentadbir (Borang F) dikeluarkan kepada pemohon, Phang Sin Kien sebagai pentadbir untuk mentadbir harta tersebut dengan catatan bahawa hasil dari harta diagihkan mengikut undang-undang pembahagian iaitu samarata semua waris simati dengan pecahan berikut: - i) 1/8 bahagian kepada Pang Syhian Juang (mewakili waris Pang Seng Hee) ii) 7/8 bahagian kepada Pang Sin Kien (mewakili waris simati yang lain termasuk dirinya sendiri).”.

A did not appeal the SLA’s decision and his attempt to obtain an extension of time to do so was both rejected by the High Court and Court of Appeal as stated above. This would mean that A has accepted the SLA’s decision and its correctness in this regard. Refer S/N iHK9kqnLpEKchklX84d3xA to Syed Omar Syed Mohamed v Perbadanan Nasional Bhd [2012] 9 CLJ 557 (Federal Court): - “[20] We also find that the plaintiff did not appeal against the decision of the learned judge striking out the first suit. The failure to appeal meant that the plaintiff accepted the correctness of the decision to dismiss its suit.”.

The SLA’s decision is thus binding on A that the said property belongs to PHY and not PSH as contended by A. Refer to Section 14 (9) Small Estates (Distribution) Act 1955 which states: - “(9) Any order made by a Estate Distribution Officer under this section shall have the same force and effect and shall be enforceable in the same manner as if it had been made by a court but there shall be no appeal from such an order except under section 29.”.

Thus, there is no basis whatsoever to support the contention that the said property belongs to PSH’s estate. Instead, the said property at all material times belongs to PHY’s estate. Enclosure 23 tainted by irregularities

This Court also finds that Enclosure 23 is tainted by various irregularities rendering it liable to be set aside as of right. S/N iHK9kqnLpEKchklX84d3xA

Firstly, Enclosure 23 in sum total has affected the title of I as the registered owner of the said property. I was not made a party when Enclosure 23 was filed by A. A should have added I as a party to the proceedings in Enclosure 23.

With I not being made a party, I was deprived of participating in the hearing of Enclosure 23 which would have enabled him to contest A’s contention that the said property is never part of PSH’s estate but instead at all material times forms part of PHY’s estate.

Secondly, A was fully aware of I’s interest in the said property having being privy to the proceedings before the SLA from which the order for distribution was made on 15.10.2019. I have been denied his right to be heard in this regard when he was never made a party to Enclosure 23.

Thirdly, this Court finds that A has failed to make a full and frank disclosure when applying for Enclosure 23. In this regard, A was fully aware that based on proceedings before the SLA that: -

The said property belongs to PHY’s estate;

The said property is to be distributed among all the beneficiaries of PHY;

PSH’s claim to the said property was already rejected by the SLA as explained above. S/N iHK9kqnLpEKchklX84d3xA

A perusal of all the cause papers pertaining to Enclosure 23 shows no reference at all to the above facts when it was readily known and within A’s full knowledge. Although the above facts would appear not to be in A’s favour, it is trite that he is still duty bound under the law to disclose all material facts nevertheless. Refer to Dormeuil Freres SA & Anor v Nicolian International (Textiles) Ltd [1988] 3 ALL ER 199 (Court of Appeal): - “It is a basic principle applicable to all ex parte applications that a party seeking ex parte relief must make full disclosure to the court of all facts which are material to the exercise of the court's discretion whether or not to grant the relief.”.

Alas, instead of disclosing the facts above, A claimed that the said property belonged to PSH and its omission from PSH’s list of assets was an accidental omission and with further claim that PHY’s sons were not claiming the said property. According to A in his affidavit in-support of Enclosure 23: - “4 Saya sesungguhnya menyatakan bahawa terdapat peninggalan yang tidak disengajakan di mana hartanah tersebut tidak dimasukkan ke dalam Senarai Aset. Saya sesungguhnya percaya dan menyatakan bahawa semua pak cik saya (yang merupakan adik kandung si mati) telah menyatakan bahawa mereka tidak menuntut hartanah tersebut.”.

This is patently false and seriously misleading as it goes against the proceedings before the SLA, A’s previous consent on oath and the documentary evidence showing that the said property belongs to I as the administrator of PHY’s estate. S/N iHK9kqnLpEKchklX84d3xA

Thus, this Court finds that A had misrepresented material facts in obtaining Enclosure 23 hence rendering it a nullity ab initio. Refer to Dato’ Syed Hamzah Syed Abu Bakar v Pendaftar Suruhanjaya Syarikat Malaysia; Puncak Kenangan (M) Sdn Bhd (Proposer Intervener) [2019] 1 LNS 2063 (High Court): - “The Proposed Intervener contends that the action of the Plaintiff was tantamount to fraud on the court, although the Proposed Intervener is not really relying on fraud as a ground to set aside the Order. The Proposed Intervener contends that there has been abuse of the process of the Court. I agree with the Proposed Intervener that the Plaintiff has misrepresented material facts to the Court and was guilty of abuse of court process. In the case of Lua & Mansor v. Tan Ah Kim [2017] 2 CLJ 175, the Court of Appeal said that " Any order by the court that is made ultra vires or beyond the permitted limit under the statutes, obtained by fraud or abuse of court process, is a nullity ab initio.”.

In addition, Enclosure 23 if allowed to stand would have the effect of reversing the final order made by the SLA to which there was no appeal made by A in the first place and of which this court cannot permit. Refer to the Federal Court in Badiaddin where it was held: - “[1a] The Court of Appeal, in allowing the respondent's appeal, had failed to appreciate the central argument on the availability of the inherent jurisdiction of the High Court to exercise its discretion to set aside the illegal attempt by the respondent to subvert and effectively reverse the original, final and perfectly legitimate order of the High Court, as a special exception to the doctrine governing the finality of court orders notwithstanding the absence of any appeal. The learned judges had failed to direct their minds to the fundamental issue of whether the appellants' application came within the category of cases that attracted ex debito justitiae. The second Order for Sale of the land, S/N iHK9kqnLpEKchklX84d3xA which had the effect of an attachment in execution of a judgment, was null and void being in violation of the prohibition imposed by s. 13 of the Enactment. Thus, that order being in violation of a statutory prohibition, it followed that the High Court should have the inherent jurisdiction to set aside the second illegal order on the basis of the ex debito justitiae principle.”.

From another angle, the sum total of Enclosure 23 is that it amounts to a subversion of the machinery of justice which this Court certainly cannot allow to exist. Blowing hot and cold by a litigant particularly on crucial pieces of evidence is abhorred by the Court. Refer to Teh Poh Wah v Seremban Securities Sdn Bhd [1996] 4 CLJ 16 (Court of Appeal): - “This is a case where the wife, by her actings, would have led a reasonable man to believe that she had given her husband a carte blanche to act on her behalf. The undisputed facts reasonably support an inference that the respondent was influenced by the conduct of the appellant to entertain such a belief. She cannot therefore now assert facts that would contradict her earlier conduct. That would be inequitable and therefore unjust. She must face the consequences of the series of events which she set in motion by acceding to the husband's plan. If, it were otherwise, it would amount to our letting her off the hook for assisting in the intentional breach of an order of Court. That would, in our judgment, amount to condoning an attempt to subvert the machinery of justice. We will not tolerate such a result.” Whether Enclosure 23 is an abuse of court process

It is trite law that any litigant or party to a dispute cannot abuse the court process. S/N iHK9kqnLpEKchklX84d3xA

An abuse of court process is where relief at law or equity is used, not to remedy a genuine grievance but as an instrument of oppression. Refer to Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd [1999] 4 CLJ 533 (Court of Appeal): - “In a civilised society, legal process is the machinery for keeping and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression: or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done.”.

Refer also to Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 2 CLJ 340 (Mahkamah Rayuan): - “When however, the process of the court is invoked, not for the genuine purpose of obtaining the relief claimed, but a collateral purpose, for example, to oppress the defendant, it becomes an abuse of process.”.

It is clearly apparent here that A had misrepresented material facts in obtaining Enclosure 23. He had failed to put before the Deputy Registrar the material facts concerning the fact that the said property being part of PHY’s estate was consented to be distributed among the beneficiaries which includes A as per the SLA’s order dated 15.10.2019. Reference in this regards may be made to Dato’ Syed Hamzah Syed Abu Bakar above. S/N iHK9kqnLpEKchklX84d3xA

A had also relied once again on the statutory declarations to stake PSH’s ownership over the said property when this was already rejected by the SLA during the proceedings which culminated in the order dated 15.10.2019 being made previously as stated above.

To allow Enclosure 23 to remain could be construed as permitting A to circumvent the appeal procedure (when there was no appeal by A on the SLA’s decision) by re-introducing the Statutory Declaration which was previously rejected by the SLA. This would constitute a clear abuse of court process.

Refer to Lim Oh & Ors v Allen & Gledhill [2001] 3 CLJ 233 (Federal Court) page 240: - “Given the view which we take that there was clearly in existence a peremptory order of the court, and that the learned SAR had struck the appellants' first suit out for disobedience of that peremptory order, we agree with the Court of Appeal's conclusion that the appellants ought to have appealed against that decision and that the filing of the second suit containing as it did, the same issues and reliefs as the first suit, amounted to a deliberate attempt to circumvent the necessary appeal procedure and therefore constituted an abuse of the process of the court. ...”.

It is also pertinent to consider the timing of Enclosure 23 in that it was filed immediately after OS 599 was filed by I for the removal of the private caveat on the said property inserted by A previously. With no service of the cause papers in Enclosure 23 being done on I as S/N iHK9kqnLpEKchklX84d3xA the registered proprietor of the said property and the duly appointed administrator of PHY’s estate, the inference that may be drawn by this court was Enclosure 23 was fuelled by an intention on A’s part to not only frustrate OS 599 but also to maintain the private caveat on the said property on the basis it is now part of PSH’s estate purportedly.

It is also to be noted that Enclosure 23 was only filed almost four (4) years after the SLA made the order appointing I as administrator of PHY’s estate and distributing the said property.

To allow Enclosure 23 to stand would lead to an absurdity in law as there would be now two (2) separate court orders. The first order is the one made by the SLA (which is equivalent to a court order) and secondly the order made by the Deputy Registrar in allowing the said property to be part of PSH’s estate. It is trite law that the first order made by the SLA remains valid in force until set aside. It cannot be supplanted by Enclosure 23 accordingly. Refer to Ann Joo Steel Bhd v Pengarah Tanah Dan Galian Negeri Pulau Pinang & Anor and Another Appeal [2020] 1 MLJ 689 (Federal Court): - “[59] It cannot be opened to any person to decide upon himself whether an order of a court which binds him is wrongly issued and does not require his obedience. Until such time it is set aside or varied the order of court is entitled to the obedience and respect from all parties. Any person who fails to obey an order of court runs the risk of being held in contempt with all its attendant consequences (see: Wee Choo Keong v. MBF Holdings Bhd & Anor and another appeal [1993] 3 CLJ 210; [1993] 2 MLJ 217).”. S/N iHK9kqnLpEKchklX84d3xA Whether Res Judicata applies

It is this Court’s finding also that Enclosure 23 is precluded from being filed as a result of Res Judicata.

On the doctrine of res judicata, refer to Sathyadhyan Ghosel & Ors v Sint Deorajin Dobi & Anor AIR [1960] SC 941 (Indian Supreme Court): - “The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a i res is judicata, it shall be not adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in s. 11 of the Code of Civil Procedure; but even where s. 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original Court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was correct. The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having. At an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.”. S/N iHK9kqnLpEKchklX84d3xA

The SLA in this regard had on 15.10.2019 issued the letters of administration to I with the necessary distribution orders being made where the said property is to be distributed among the beneficiaries as agreed and consented by the latter on oath.

The letters of administration and the distribution order has the same effect as a court order as stated in Section 14 (9) Small Estates (Distribution) Act 1955 reproduced above.

In light of the above, Enclosure 23 has the effect of allowing A to litigate again an issue (ownership of the said property) which has already been decided previously. The Doctrine of Res Judicata disallows this.

Similarly, Res Judicata prevents A from once again relying on the statutory declarations which were previously rejected by the SLA. Allowing Enclosure 23 to remain would thus lead to chaos in the conduct of civil proceedings and there is no certainty and finality as far as the distribution of assets forming part of PHY’s estate and on the claims being put forth by A. Refer to Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1997] 2 CLJ 104 (Court of Appeal): - “[1] Once a judge makes a ruling, substantive or procedural, final or interlocutory, it must be adhered to and may not be reopened. Although the first decision was made on a interlocutory matter which S/N iHK9kqnLpEKchklX84d3xA was purely procedural in nature, it was nevertheless binding on the court and on all parties to the lis until its reversal on appeal. [2] A failure to adhere to the principle of res judicata may lead to chaos in the conduct of civil proceedings.”.

A had also consented on oath for I to be the administrator of PHY’s estate and for the said property to be distributed among the beneficiaries. He cannot now be allowed to re-open this matter by contending to the contrary as he did in filing Enclosure 23. This would constitute a re-opening of a matter (distribution of PHY’s assets ) which has been decided earlier by the SLA. What more the allegations made by A in Enclosure 23 was the same one he took before the SLA namely that the said property belongs to PSH. Refer to Orchard Circle Sdn Bhd v Pentadbir Tanah Daerah Langat & Ors [2021] 1 CLJ 1 (Federal Court): - “[78] The issues regarding the validity of the acquisition proceedings and whether Orchard Circle is the rightful proprietor of the said lands were issues before the learned judge in the first judicial review proceedings, premised on the reliefs sought for in the same. The current reliefs sought by Orchard Circle in the second judicial review application are the same reliefs which had been denied by Hinshawati Shariff J in the first judicial review application. Hence the issues have been disposed of in finality by parties then. It would be an abuse of process to allow Orchard Circle to renew its challenge on the propriety of the land acquisition proceedings when it challenged Form D in the second judicial review proceedings. This would amount to a back door appeal against the High Court order dated 10 December 2010 in the first judicial review application.”. S/N iHK9kqnLpEKchklX84d3xA

In other words, Enclosure 23 has the effect of revisiting the SLA’s order dated 15.10.2019 which is precluded in law. To allow Enclosure 23 to stand would mean subverting the order dated 15.10.2019 when this was already concluded and even consented to by the beneficiaries to the estate of PHY including A. Refer to Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 6 CLJ 673 (Federal Court): - “The re-litigation of a regularly and properly concluded matter as determined by the court is prohibited by the wide doctrine of res judicata. The judicial process rests on the twin pillars of certainty and finality. A final order or a judgment must be therefore be vigorously protected by this doctrine.”

For reasons stated above, Enclosure 47 is allowed with costs of RM3,000.00 to be paid by A to I subject to allocator fees. Dated: 29th August 2025 …………………………………………. (NOOR HISHAM BIN ISMAIL) Judge High Court, Johor Bahru S/N iHK9kqnLpEKchklX84d3xA Solicitors for the Applicant : Chan Kwai Chuan M/s The Chambers of KC Chan Kuala Lumpur Solicitors for the Intervener : Clement Chong Chyi M/s EZ Pang & Co. Kuala Lumpur S/N iHK9kqnLpEKchklX84d3xA