somad bin Ahmad & 5 lagi v Saadiah Binti Ahmad & 2 Lagi (P-02(NCVC)(W)-1184-06/2018)

1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: P-02(NCVC)(W)-1184-06/2018 ANTARA

1. SA’ADIAH BINTI AHMAD … PERAYU-PERAYU (NO. K/P: 781003-07-5396)

2. CHE BEDAH BINTI AHMAD (NO. K/P: 791026-07-5056)

3. CHE SOOM BINTI ISMAIL (NO.K/P: 460925-07-5344) DAN

1. SO’MAD BIN AHMAD … RESPONDEN-RESPONDEN (NO.K/P: 760930-07-5159)

2. SAMSUDIN BIN AHMAD (NO.K/P: 710201-07-5241)

3. ROHANI BINTI AHMAD (NO.K/P: 670719-07-5242)

4. MASITOH BINTI AHMAD (NO.K/P: 691219-07-5046)

5. AMRAN BIN AHMAD (NO.K/P: 730305-07-5009)

6. OMAR BIN AHMAD (NO.K/P: 510216-07-5395) 2 [Dalam Mahkamah Tinggi Malaya Di Georgetown Dalam Negeri Pulau Pinang, Malaysia Guaman No: PA-22NCVC-61-03/2017] Antara

1. So’mad bin Ahmad … Plaintif-Plaintif (No.K/P: 760930-07-5159)

2. Samsudin bin Ahmad (No.K/P: 710201-07-5241)

3. Rohani binti Ahmad (No.K/P: 670719-07-5242 4. Masitoh binti Ahmad (No.K/P: 691219-07-5046)

5. Amran bin Ahmad (No.K/P: 730305-07-5009)

6. Omar bin Ahmad (No.K/P: 510216-07-5395) dan

1. Sa’adiah binti Ahmad … Defendan-Defendan (No. K/P: 781003-07-5396)

2. Che Bedah binti Ahmad (No. K/P: 791026-07-5056)

3. Che Soom binti Ismail (No.K/P: 460925-07-5344) CORAM Hamid Sultan bin Abu Backer, JCA Zaleha binti Yusof, JCA Yaacob bin Haji Md Sam, JCA 3 JUDGMENT [1] This is an appeal against the decision of the High Court at Pulau Pinang dated 15.5.2018 allowing the respondents’ claim as appeared in paragraph 32 of the respondents’ Amended Statements of Claim. [2] The parties in this appeal are all siblings except for the 3rd appellant and 6th respondent. The 3rd appellant is the mother of the other appellants and all the respondents except for the 6th respondent. The 6th respondent is a son and the administrator of the estate of Omar bin Ahmad, who passed away on 21.3.2013. Omar bin Ahmad was also a child of the 3rd appellant. [3] The dispute revolves around the properties known as the land held under grant No: GM 1099, Lot 1506, Mukim 9, Seberang Perai Utara and the land held under grant No. GM 1100, Lot 1507, Mukim 9, Seberang Perai Utara (the said properties). [4] The said properties were registered under the name of one Ahmad bin Sharif (Ahmad), the husband of the 3rd appellant, before Ahmad’s demise. Ahmad passed away on 15.7.2006, leaving the parties in this case as his beneficiaries. 4 [5] The respondents had on 5.10.2015 discovered that a Distribution Order No: JKPTG/PK/07/02/0325/2012 relating to the estate of Ahmad involving the said properties was made by the Inheritance Division of the Pulau Pinang Land Office. It was based on the application filed by the 3rd appellant which was heard on 7.2.2013. According to the Notes of Proceedings, all the 3 appellants were present at the hearing while all the respondents were absent but purportedly had agreed to surrender their portions in the said properties to the 3rd appellant by signing Form DDA (Regulation 4A) which is the Letter of Consent under the Small Estate (Distribution) Act 1955 to surrender their portion and interest in the said properties to the 3rd appellant. [6] The respondents also discovered that on 18.3.2013, the 3rd appellant transferred the said properties to the 2nd appellant with consideration of “love and affection”. The 2nd appellant later sold the said properties to one Lau Jick Ing and one Gui Soo Goh on 27.1.2015. [7] The respondents then filed this suit which is the subject matter of the appeal before us, claiming, inter alia, fraud and forgery in the Distribution Proceedings and sought to set aside the Distribution Order which they alleged was obtained through forgery of their signatures on the Form DDA. 5 Findings of the High Court [8] Essentially, the learned High Court Judge had found that the evidence of all the respondents that they never signed the Forms DDA had not been challenged by the appellants. Her Ladyship was also of the view since it was the pleaded case of the appellants that the respondent had signed the Form DDA before one K.O. Ellangkovan, a Commissioner of Oath the burden of proving that the respondents had indeed signed those Forms was on the appellants. As K.O. Ellangkovan was not called as a witness by the appellants, adverse inference can be drawn against them. [9] It was also the learned High Court Judge’s findings that the 1st and 2nd appellants were lying in court and not truthful as their oral testimonies contradicted their pleaded case. [10] Based on those reasons she opined that the 1st and 2nd appellants had forged the respondents signatures, hence the respondents claim was allowed. 6 Issues [11] Before us, the appellants had only raised two issues as follows:

(ii) whether adverse inference under section 114(g) of the Evidence Act 1950 can be drawn against the appellants for the appellants failure to call K.O Ellangkovan as a witness to confirm the purported signatures of the respondent on the said Form DDA. Submissions of the Parties [12] On the 1st issue, it was the appellants’ contention that the respondents had failed to discharge the burden of proving that signatures found on Form DDA were forged. [13] The reason being, the respondents merely denied the signatures or any knowledge of the Forms. Learned Counsel for the appellants argued that expert evidence should have been called to support the respondents’ testimonies that the signatures were not theirs. 7 [14] As the respondents had not discharged their burden of proof, it follows, that on the 2nd issue, the burden had not shifted onto the appellants. They relied on inter alia the decisions of this Court in Lembaga Penggalakan Pelancongan Malaysia v One Big Option Sdn Bhd [2018] 1 MLJ 465 and the decisions of the Federal Court in Syarikat Kemajuan Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul Naim [2015] 3 MLJ 609. [15] Learned counsel for the respondents submitted that the respondent had unequivocally denied that they had signed the Form DDA. They also denied signing it before K.O. Ellangkovan. The respondents testimonies were not challenged by the appellants, instead doing cross examinations, learned counsel for the appellants informed the court that they will use the plea of non est factum maxim. The issue of non est factum was never pleaded by the appellants and therefore the learned High Court Judge was right when she decided not to consider it. [16] On the issue of failure to adduce expert evidence, it was the respondents’ contention that expert evidence is not a mandatory requirements to prove the allegation of forgery against the respondents. They found support in the Federal Court decision in Letchumanan Chettiar Alagappan @ L. Allagappan (as executor to SL Alameloo 8 Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697. [17] On the 2nd issue, it was the respondents’ contention that as the appellants had pleaded in their Statement of Defence that the respondents had signed the Form DDA in front of Commissioner for Oath K.O. Ellangkovan, the burden was therefore upon the appellants to prove these facts. Those who assert must prove. Again they rely on the decision of the Federal Court in Letchumanan Chettiar Alagappan supra. He further submitted, based on this Court’s decision in Yung Kim v Madlis bin Azid @ Aziz & Ors [2018] 1 MLJ 192, the learned High Court Judge was entitled to draw adverse inference against the appellants. Our Decision [18] First, let us examine the Grounds of Judgment of the learned High Court Judge. On the 1st issue, the learned High Court Judge in her Grounds of Judgment had stated as follows: “…Dalam kes ini, keterangan plaintif-laintif (PW1 hingga PW6) bahawa mereka tidak menandatangan Borang DDA dan bahawa tandatangan mereka telah dipalsukan tidak dicabar oleh peguamcara defendan. 9 Sebaliknya, peguamcara defendan telah membangkitkan isu non est factum. Non est factum tidak diplidkan oleh plaintif. Maka, non est factum bukanlah satu isu dalam kes ini dan ditolak oleh Mahkamah. Tanpa ada cabaran, keterangan PW1 hingga PW6 dianggap diterima sebagai benar oleh defendan-defendan. Selain daripada itu, saya juga mengambilkira fakta bahawa PW1 hingga PW6 juga telah mengambil tindakan-tindakan berikut: i) membuat laporan polis, eksibit P6, P7, P8, P12 dan P13; ii) memasukkan kaveat ke atas hartanah tersebut; iii) mendapatkan Perintah Pembahagian secara faraid dari Mahkamah Syariah; iv) Memfailkan tindakan ini di Mahkamah. Kesemua tindakan di atas menyokong versi plaintif-plaintif bahawa mereka tidak tahu menahu mengenai prosiding pembahagian harta pusaka di Pejabat Pembahagian Pusaka, Pulau Pinang. Maka saya terima keterangan PW1 hingga PW6 sebagai keterangan yang benar”…. “..Seterusnya, defendan pertama dan defendan kedua (DW1 dan DW2) telah memberi keterangan yang bercanggah dengan pliding mereka. Dalam keterangan lisan, DW1 dan DW2 mengatakan plaintif-plaintif menandatangan Borang DDA di hadapan DW1 dan DW2. Kedua-dua saksi ini juga memberi jawapan tidak pasti dan tidak ingat bila ditanya tarikh dan tempat dimana tandatangan plaintif-plaintif diperolehi. Oleh 10 kerana versi lisan bercanggah dengan versi yang diplidkan, saya memutuskan ada sebab yang munasabah untuk saya mengatakan DW1 dan DW2 tidak bercakap benar. Maka, saya tolak keterangan DW1 dan DW2. Dengan tertolaknya keterangan DW1 dan DW2, saya mendapati plaintif-plaintif telah berjaya membuktikan bahawa mereka tidak pernah menandatangani Borang DDA dan bahawa tandatangan mereka di atas borang tersebut telah dipalsukan”. [19] On the 2nd issue, the learned High Court Judge had explained Her Ladyship’s decision as follows: “..Dalam pembelaan mereka, defendan-defendan telah memplidkan bahawa Borang DDA telah ditandatangani oleh plaintif-plaintif di hadapan Pesuruhjaya Sumpah K.O. Elangkovan. Beban untuk membuktikan fakta ini terletak ke atas defendan-defendan dan bukan ke atas plaintif-plaintif yang menafikannya: Letchumanan Chettiar Alagappan @ L. Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697. Keterangan pembuktian yang dikemukakan oleh defendan-defendan sangat tidak memuaskan. Pihak yang terbaik yang dapat mengesahkan plaintif-plaintif sebenarnya ada menandatangan Borang DDA ialah Pesuruhjaya Sumpah K.O Ellangkovan. Tetapi, K.O. Ellangkovan tidak dipanggil sebagai saksi. Peguamcara defendan memberi alasan beliau tidak dapat berjumpa dengan K.O. Ellangkovan. Saya tolak alasan peguamcara defendan kerana tidak munasabah. Di 11 hadapan Mahkamah ini, tiada bukti sapina dikeluarkan kepada K.O. Ellangkovan. Kegagalan memanggil K.O. Ellangkovan membolehkan saya membuat inferen yang bertentangan terhadap defendan-defendan bahawa sebenarnya Borang DDA itu tidak pernah ditandatangan oleh plaintif-plaintif di hadapan Pesurujaya Sumpah itu”. [20] The findings of the learned High Court Judge as quoted above is clearly the findings of facts. It is trite that an appellate court is not justified to disturb any decision of the trial court unless it can be shown that the trial court is plainly wrong in its decision or when there is insufficient judicial appreciation of evidence. What more if the finding is based on credibility of the witnesses who have given evidence at the trial. See: The Federal Court in China Airlines Ltd v Maltran Air Corp Sdn Bhd (formerly known as Maltran Air Services Corp Sdn Bhd) and Another Appeal [1996] 3 CLJ 163; Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 and the Court of Appeal in QM Resources Sdn Bhd v Parade Hotel Sdn Bhd & 2 Others [2019] 1 LNS 864. [21] In this case, we found the learned High Court Judge had clearly assessed and weighed the evidence placed before her and had given her reasons why she accepted the respondents’ evidence and rejected the appellants’. She had the undoubted advantage of seeing and hearing 12 witnesses at the trial and had properly analysed the entire evidence adduced before her before she reached her conclusions. We therefore found no reason to disturb those findings. [22] Further it perplexed us why was the mother, the 3rd appellant, was not called to give evidence. We were told by learned counsel for the appellants, from the bar, that she was told the mother was not well. But there was nothing to that effect in the notes of evidence. The mother was the central figure in the whole transactions. She would be able to explain the purported consent given by the respondents and why the said properties were later transferred to the 2nd appellant. [23] The evidence of the respondents had never been challenged during cross-examination by the appellants counsel. Instead learned counsel for the appellants submitted on the plea of non est factum which was never pleaded. On this plea of non est factum, we adopt the decision of the High Court in Imbangan Utama Sdn Bhd v Lotan Engineering Works Sdn Bhd [2002] 2 MLJ 313 as follows: “ It really takes a litigant of unusual temerity or cheerful insouciance to register a plea of non est factum, for such plea rarely if ever succeeds. There is a whole pack of legal cards stacked against such plea. As a 13 defence or a cause of action the onus rests heavily and onerously on the party who alleges non est factum. The signer must establish his lack of competence due to illness or innate incapacity or defective education and he was not negligent or had acted nonchalantly or with want of care (see Saunders v Anglia Building Society [1971] AC 1004 (HL). And, he must further establish that he had thought that he was signing a document which was so radically or fundamentally or basically or essentially different in substance or in kind from the document signed (see also Polygram Records Sdn Bhd v The Search & Anor [1994] 3 MLJ 127 and Goh Jong Cheng v MB Melwani Pte Ltd [1991] 1 MLJ 482, [1990] 1 LNS 160).” [24] Non est factum would arise only when the party who purportedly signed the document had signed it but was not able to understand what he signed. However, this was not the case before us. The respondents never said they signed the Form DDA. In the circumstances non est factum is clearly not relevant. [25] We echoed the Federal Court in Letchumanan Chettiar Alagappan, supra, that expert evidence is not mandatory requirement in all cases of this nature. The unchallenged testimonies of the respondents in our view, negate the necessity of calling for expert evidence. 14 [26] It was our view that Her Ladyship was also entitled to draw adverse inference against the appellants under s. 114(g) of the Evidence Act 1950 for their failure to call K.O. Ellangkovan to give evidence. The adverse inference would be the said K.O. Ellangkovan had never attested the signatures of the respondents on Form DDA. The situation was the same as in Chua Yung Kim, supra, where this court decided, inter alia, as follows : “With regard to the issue of forgery, the 9th, 14th, 16th, 21st, 34th, 49th, 52d, 61st and 62nd respondents testified in unequivocal terms that they never thumb-printed the documents that appellant brought over to Kampung Keniogan for them to execute, yet the appellant without any reasonable explanation, chose not to call the person who purportedly attested the documents to give evidence. The evidence was that this person was an unnamed second class magistrate of the District of Paitan. The learned judge was therefore entitled to draw adverse inference against the appellant under s. 114(g) of the Evidence Act 1950 for not calling the mysterious second class magistrate as a witness. The adverse inference would be that this person is either not a magistrate or if he is a magistrate, he never attested to the signing of thumb-printing of the documents by the aforesaid respondents.” 15 Conclusions [27] As alluded to earlier, those were the only two issues raised by the Appellants in this appeal before us. Hence we deemed the other issues raised during the trial at the High Court had been abandoned by the appellants. [28] Based on the two issues and for the reasons given, we dismissed this appeal and affirmed the order of the High Court dated 15 May 2018 with no order as to costs. sgd Dated : 30 October 2019 (ZALEHA BINTI YUSOF) Judge Court of Appeal Malaysia Peguamcara Perayu-Perayu/Defendan-Defendan Norhisham bin Shaidi Tetuan Norhisham & Co Peguambela & Peguamcara No. 3192, Tingkat 2, Lorong Maju Utama 1 Jalan Maju, 14000 Bukit Mertajam PULAU PINANG. 16 Peguamcara Responden-Responden/Plaintif-Plaintif Abd Shukor bin Tokachil Tetuan Shukor & Associates Peguambela & Peguamcara Suite 15.10 & 15.22 15th Floor, Wisma Zelan No. 1, Jalan Tasik Permaisuri 2 Bandar Tun Razak 56000 KUALA LUMPUR. 17