Waseem Yaqoob S/O Sheikh Muhammad Yaqoob v Maybank Islamic Berhad (BA-24NCvC-1437-07/2024)

27.

4.2018 VIDE CIVIL SUIT NO. 21M-1-3/2015 AND IN THE MATTER OF ORDER 42 AND/OR ORDER 92 RULE 4 RULES OF COURT 2012 BETWEEN WASEEM YAQOOB S/O SHEIKH MUHAMMAD YAQOOB (NO. PASPORT: AH6333674) … PLAINTIFF

MAYBANK ISLAMIC BERHAD

RTL VISAGE SDN BHD (COMPANY NO.: 897645-H) (IN LIQUIDATION) … DEFENDANTS 30/03/2026 15:29:34 BA-24NCvC-1437-07/2024 Kand. 42

This decision concerns the Plaintiff’s Originating Summons dated 11.3.2024 as against the 2nd Defendant, RTL Visage Sdn Bhd (in liquidation).

Earlier, the 1st Defendant filed an application to strike out the Plaintiff’s Originating Summons. After hearing the parties, I allowed the application and struck out the Originating Summons as against the 1st Defendant. I have set out my reasons in my earlier Grounds of Judgment.

The earlier decision is published as Waseem Yaqoob Sheikh Muhammad Yaqoob v Maybank Islamic Berhad & Anor [2025] MLRHU 2524.

Following that decision, the Plaintiff elected to proceed with the Originating Summons against the 2nd Defendant.

It is not disputed that the 2nd Defendant has been wound up since 31.1.2019. The Insolvency Department of Malaysia entered an appearance on behalf of the 2nd Defendant. However, no affidavit in reply was filed to oppose the Plaintiff’s Originating Summons.

The Plaintiff therefore proceeded on the basis that the affidavit evidence filed in support of the Originating Summons remained unrebutted and invited this Court to determine the matter against the 2nd Defendant. Issues for determination

In the circumstances, the issues for determination are limited to the following: a) Whether the absence of any affidavit in reply by the 2nd Defendant entitles the Plaintiff to relief sought in the Originating Summons. b) Whether this Court may exercise its inherent jurisdiction to grant the orders sought by the Plaintiff.

The background facts have been set out in my earlier Grounds of Judgment and I will only refer to the material events necessary for the present decision.

The Plaintiff had previously commenced Shah Alam High Court Civil Suit No. 21M-1-03/2015 challenging the transfer of the property to the 2nd Defendant.

After trial, the High Court delivered judgment on 27.4.2018 and made several declarations, including:

that the transfers of the property were fraudulent and void;

that the property be restored and re-registered in the Plaintiff’s name; and

that the charge created between the 2nd Defendant and the 1st Defendant over the property was valid.

The present Originating Summons was filed by the Plaintiff seeking, in substance, to set aside or nullify paragraph (c) of the said judgment.

As explained in my earlier Grounds of Judgment, the 1st Defendant successfully applied to strike out the Originating Summons on the basis that this Court has no jurisdiction to set aside a final order of a High Court of coordinate jurisdiction and that the Plaintiff’s claim is barred by the doctrines of res judicata and issue estoppel. Plaintiff’s submissions

The Plaintiff submits that although the charge between the 1st Defendant and the 2nd Defendant was declared valid, such validity must be interpreted narrowly.

According to the Plaintiff, the charge merely creates a contractual relationship between the lender and borrower, namely the 1st Defendant and the 2nd Defendant, and does not confer any proprietary interest over the land.

The Plaintiff further submits that since the transfers of the property to the 2nd Defendant were declared fraudulent and void, the 2nd Defendant never acquired lawful title capable of being charged.

In support of this argument, the Plaintiff relies on the principle that a void title cannot confer a proprietary interest and refers to authorities including T Sivam a/l Tharamalingam v Public Bank Berhad [2018] 1 MLRA 393 (Federal Court).

The Plaintiff therefore contends that while the loan transaction between the 1st Defendant and the 2nd Defendant may remain contractually valid, enforcement of the charge cannot be directed against the land which has been restored to the Plaintiff.

The Plaintiff also urges this Court to exercise its inherent jurisdiction to grant consequential orders to give effect to the earlier judgment and prevent injustice. Analysis and findings Effect of the absence of affidavit by the 2nd Defendant

I first address the Plaintiff’s submission that the Originating Summons should be allowed since the 2nd Defendant did not file any affidavit in reply.

It is correct that the 2nd Defendant did not file any affidavit in opposition. However, the absence of a response from the 2nd Defendant does not automatically entitle the Plaintiff to the relief sought.

I must still be satisfied that this Court has jurisdiction over the subject matter and that it has the legal power to grant the specific relief sought. Judicial power is derived from law and not from the conduct or default of the parties (see Section 25(1) &

(2), Courts of Judicature Act 1964).

This principle has been clearly affirmed by the Court of Appeal in Bukit Melita Sdn Bhd v Revolusi Rancak Sdn Bhd [2020] 5 MLRA 527, where the Court held that a court acts without jurisdiction if it grants relief which it has no power to award, and that such defect is not cured by the failure of the opposing party to contest the application.

The same position has been recognised by the Federal Court in Fung Beng Tiat v Marid Construction Co [1996] 2 MLRA 392, where it was held that jurisdiction cannot be conferred by consent or waiver. Likewise, in Bina MYK Sdn Bhd v VVO Construction Sdn Bhd [2017] MLRAU 533, the Court of Appeal reiterated that parties cannot, by their conduct, invest a court with jurisdiction which it does not possess.

Further, in United Asian Bank Berhad v Elgi Marka Sdn Bhd [1994] 3 MLRH 473, it was held that an order made without jurisdiction is a nullity and may be challenged at any time.

These authorities make it clear that the absence of opposition by the 2nd Defendant does not enlarge the jurisdiction of this Court, nor does it cure any legal defect in the relief sought by the Plaintiff.

Accordingly, the Plaintiff cannot succeed merely on the basis that the Originating Summons is unopposed. The Court must still determine whether the relief sought is one which it has jurisdiction to grant. Nature of the relief sought

The relief sought in this Originating Summons remains unchanged. The Plaintiff seeks to set aside or nullify paragraph

of the High Court judgment dated 27.4.2018.

As explained in my earlier Grounds of Judgment, paragraph (c) forms part of a final order of the High Court.

The effect of the Plaintiff’s application, if granted, would be to remove or undermine the declaration that the charge created between the 2nd Defendant and the 1st Defendant is valid. Jurisdiction of this Court

The law is settled that a High Court cannot set aside or vary a final order of another High Court of coordinate jurisdiction which was regularly obtained.

Once a judgment has been perfected, the Court becomes functus officio.

The proper recourse available to a party dissatisfied with such an order is to file an appeal to the Court of Appeal.

These principles were discussed in my earlier Grounds of Judgment with reference to authorities including Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 and Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143.

The Plaintiff did not appeal against paragraph (c) of the 2018 judgment.

In these circumstances, the Plaintiff cannot now seek to reopen or neutralise that order through a fresh Originating Summons before another High Court. Plaintiff’s reliance on the nemo dat principle

The Plaintiff places reliance on the principle that a void title cannot confer a proprietary interest and refers to the Federal Court decision in T Sivam a/l Tharamalingam.

However, the difficulty with this argument is that the High Court in the 2018 judgment had already considered the effect of the fraudulent transfers and nevertheless declared that the charge created between the 2nd Defendant and the 1st Defendant was valid.

Whether that conclusion is correct or otherwise is not a matter for this Court to determine in the present proceedings.

The Plaintiff’s submission effectively invites this Court to reconsider the legal effect of the earlier judgment and to reach a different conclusion on the validity and enforceability of the charge.

That is precisely what this Court has no jurisdiction to do. Inherent jurisdiction

The Plaintiff also relies on the inherent jurisdiction of the Court to grant consequential or ancillary orders.

I am unable to accept this submission.

Inherent jurisdiction exists to regulate the Court’s own process and to prevent injustice arising from abuse of procedure.

It does not permit a High Court to set aside or alter a final order of another High Court of coordinate jurisdiction.

To allow such an approach would in effect permit this Court to sit in appeal over the earlier High Court judgment, which is impermissible.

Having considered the Plaintiff’s submissions, I find that the Originating Summons remains legally unsustainable for the same reasons explained in my earlier Grounds of Judgment.

The absence of any affidavit in reply by the 2nd Defendant does not confer jurisdiction on this Court to revisit or set aside issues arising from the earlier High Court judgment.

The defect in the Plaintiff’s case is one of law and jurisdiction, and not dependent on whether the 2nd Defendant contests the matter.

Accordingly, the Plaintiff’s Originating Summons as against the 2nd Defendant is dismissed.

In view of the circumstances of the case and the fact that the 2nd Defendant is in liquidation, I make no order as to costs. Dated this: 26th March 2026 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Representative: For the Plaintiff : Jasbeer Singh Kaura together with Nur Hakimah binti Mohamad Messrs Jasbeer, Nur & Lee For the 1st Defendant : Aimee Lee Messrs Sidek Teoh Wong & Dennis For the 2nd Defendant : Engku Norsuhaila binti Engku Zain