Masri Bin Ahmad V Neoh Tong Hock&1lagi


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RAYUAN SIVIL NO: P-02-2275-09/2011












[Mahkamah Tinggi Malaya Di Pulau Pinang Guaman Sivil No: 22-567-2007 Antara


Majlis Agama Islam Negeri Pulau Pinang … Plaintif




1. Neoh Tong Hock


2. Wong Tiam Fook


3. Masri Bin Ahmad … Defendan


4. Mansor Bin Ahmad Defendan


Mahkamah Tinggi Malaya Di Pulau Pinang


Guaman Sivil No: 22-135-2006




1. Masri Bin Ahmad … Plaintif-


2. Mansor Bin Ahmad Plaintif-




1. Neoh Tong Hock


2. Wong Tiam Foo … Defendan






Abdul Wahab Patail, JCA Balia Yusof Wahi, JCA Mohd Zawawi Salleh, JCA


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The Antecedents


[1] The genesis of the appeal concerned a dispute over a piece of land known as Lots 1800 and 1801, Mukim 12, Daerah Barat Daya, Pulau Pinang under Grant Nos. 1121 and 1122 (‘the said land’). The original proprietor was one Ibrahim bin Samat (‘the deceased’).


[2] Sometime in 1979, the deceased had allegedly sold the said land to the 1st and 2nd respondents and the registration was duly completed on 2.10.1979 (‘the 1st transfer’).


[3] The deceased’s grandson, Yusof bin Din (‘Yusof’), became the administrator of the estate of the deceased via grant of letter of administration dated 7.4.1981. On 27.11.1981, Yusof lodged a private caveat on the said land and he alleged that the deceased could not be the vendor who sold the said land to the respondents as the deceased had passed away since 1945. The said caveat lapsed after 6 years.


[4] The deceased’s granddaughter, Hamidah Binti Din (‘Hamidah’), became the administratrix of estate of the deceased via grant of letter of administration de bonis non dated 15.9.1987. She lodged a private caveat on the said land alleging the same ground of fraud as her late brother, Yusof, had alleged earlier.


[5] The parties then locked in litigation of marathon proportions. Hamidah applied to the Georgetown High Court vide Originating


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Summons No.24-434-1995 (‘OS 434’) to extend the private caveat. In her affidavit affirmed on 15.4.1995, the same ground of fraud was reiterated. However, the originating summons was dismissed by learned Judge in Chambers on 15.8.1995. She did not appeal against the said decision.


[6] On 19.10.1995, the 2nd respondent transferred his A undivided share of the said land to the 1st respondent (‘the 2nd transfer’).


[7] The 1st respondent applied via Originating Summons No. 24-1094-1995 (‘OS 1094’) pursuant to Order 89, Rules of the High Court 1980, to recover possession of the said land. Hamidah resisted the application by filing an affidavit in reply deposing the same allegation of fraud. On 27.11.1997, the 1st respondent’s application was allowed. Hamidah did not appeal against the said decision.


[8] Pending the disposal of the Order 89 application, Hamidah filed a writ at Georgetown High Court vide Civil Suit No.22-246-1996 (‘writ 246’) against the respondents. She sought to set aside the transfer and to vest the said land in her name as the administratrix of the estate of the deceased. On 4.8.1997, the Senior Assistant Registrar set aside the said writ upon application made by the respondents. Hamidah’s appeal to the Judge in Chambers was dismissed on 20.1.1998. There was no further appeal.


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[9] On 18.6.1996, the said land was charged to Public Bank by the 1st respondent.


[10] The appellant then became the administrator of the estate of the deceased via grant of letter of administration de bonis non dated 30.5.2006. The appellant and one Mansor bin Ahmad (since deceased) filed a writ vide Civil Suit No.22-135-2006 against the respondents alleging the same grounds of fraud as previously alleged by Yusof and Hamidah. He sought to set aside the transfer and to vest the said land in his name as the administrator of the estate of the deceased.


[11] At the conclusion of the trial, the High Court dismissed the appellant’s claim on two main grounds: (i) limitation, and (ii) res judicata. Hence this appeal.


The Appeal


[12] Before us, the finding of the High Court was assailed by the appellant on the following grounds:


(a) The learned trial Judge erred in holding that an action under section 340 of the National Land Code (“NLC”) is subject to limitation;


(b) The learned trial Judge erred in holding that the time for period of limitation should begin to run from 24.11.1981, the date when fraud was alleged by Yusof in his application to enter a private caveat; and


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(c) The learned trial Judge erred in holding that the principle of res judicata applied when the earlier applications and suits initiated by Yusof and Halimah were dismissed on technical grounds and not on the merits of the case.


[13] We have heard learned counsel for the appellant and the respondents at some length and gone through the records available before us. In our view, the learned trial Judge’s decision did not suffer from any infirmity requiring interference by this Court. Accordingly, we unanimously dismissed the appeal and affirmed the decision of the High Court.


[14] We now give the reasons for our decision.


Parties’ Respective Submissions


[15] At the outset, it should be noted that the submissions advanced by the appellant before us were repetitions and in some instances an embellishment of the same submissions raised before the High Court. The learned trial Judge had admirably dealt with all the points raised and rejected them.


[16] Learned counsel for the appellant contended that the plea of limitation by the respondents was misconceived. According to learned counsel, section 9(1) of the limitation Act 1953 (“Act 254”) did not apply because the present appeal was not an action to recover land but to set aside the 1st respondent’s tittle and interest in the said land under section 40(2) and (3) of the National Land Code (“NLC”).


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[17] It was the contention of learned counsel for the appellant that the entire scheme under Act 254 dealt with an action to recover land and section 15 of the Act made it clear that an action to recover land was actually an action to recover possession of the land.


[18] In support of the above contention, learned counsel relied on section 2(4) of Act 254 which reads as follows:


“References in this Act to a right of action to recover land shall include references to a right to enter into possession of land or in the case of rent charges any right to distrain for arrears of rent and reference to the bringing of such action shall include references to making of such an entry or distraint.


[19] It was argued that the above section made no reference to the action of setting aside title of land or challenging title to land. The entire scheme under the Act 254 suggests that an action to recover the land includes an action to recover possession of land. Conversely, it was submitted that subsections 340(2) and (3) of the NLC encompassed an action specifically to set aside the title or interest of the person for the time being registered as proprietor of the land. Therefore, section 9 of Act 254 has no application to an action under section 340 of the NLC.


Our Decision


[20] With respect, the submission was devoid of any sound reasoning. Section 2(4) of Act 254 prefixed the interpretation therein with the word “includes”. When an interpretation section


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uses the word “includes”, it is prima facie extensive. It is used as a word of enlargement, to make the definition extensive and not restrictive. In Bharat Coop. Bank (Mumbai) Ltd. v Coop. Bank Employees Union (2007) II LLC 825 SC, it was held:


“…When the word “includes” is used in the definition, the legislative does not think to curtail the definition: it makes the definition enumerative but not thorough. That is to tell, the term defined will hold its average meaning but its scope would be widened to convey within it matters, which in its average meaning may or may not consist… ”.


[21] In similar vein, in Commercial Taxation Officer, Udaipur v Rajasthan Texchem Ltd. [2008] [12] S.T.R 660, it was held:


“. The word “includes” usually used in the interpretation clause in order to enlarge the meaning of the words in the statute. When the word “includes” used in the words or phrases, it must be construed as comprehending nor only such things as they signify according to their nature and impact but also those things which the interpretation clause declares they shall include.”.


[22] In our considered opinion, it would be incorrect to construe that an action to recover land as stipulated in section 9(1) of Act 254 would be only confined to possession of land. Section 2(1) of Act 254 clearly states that ‘land’ includes any legal or equitable estate or interest in land. To put it colloquially, what the appellant says is this: ‘the respondents are not entitled to the land and I want the land’. In the event the court agrees with appellant, the


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appropriate way of giving the land to him is for the court to make a declaration and set aside the respondents’ title, and a consequential order that the land be vested in the appellant’s name as administrator of the estate of the deceased. This is essentially an action to recover land within the meaning of section 9(1) of Act 254, and the period of limitation would be 12 years. (See Ponnusamy & Anor v Nathu Ram [1959] 1 MLJ 46).


[23] Another argument of the appellant was that the second part of section 341 of the NLC states that “and accordingly, the Limitation Act 1953, shall in no circumstances operate to extinguish any title to, or interest in, land” shows that the period of limitation for recovery of land under Act 254 deals with adverse possession because adverse possession can extinguish title to, or interest in, land.


[24] The submission was bereft of any merit. Section 341 of the NLC provides that adverse possession, no matter how long, does not confer title to the land. Therefore, the registered proprietor or person entitled to the land, may at any time, take action to evict the stranger or squatter in adverse possession. Consequently, section 341 of the Code, read together with section 9(2) of Act 254, in effect provided that there shall no limitation period to bar the current registered proprietor from taking action. However, the present case cannot come under section 341 of the NLC. The appellant, when he filed his claim, was not the registered proprietor of the land. As such, the respondents were not persons in adverse possession of the said land.


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[25] We now turn to the issue as to when the period of limitation begins. It was the appellant’s contention that time only started to run from 18.4.1994, based upon a letter issued by Messrs. Ban Eng Anual & Foong (solicitors acting for the respondents at the material time) to Messrs. Razak & Co. (solicitors acting for Hamidah), expressing the 1st respondent’s refusal to transfer the said land to the estate of the deceased.


[26] The appellant made reference to the cases of Nasri v. Mesah [1971] 1 MLJ 32 (FC) and Tan Swee Lan v. Engku Nik binti Engku Muda & Ors. [1973] 2 MLJ 187 (FC) in which the Federal Court in both cases held that the period of limitation began to run from the first clear and unequivocal threat to the appellant’s right to a transfer of the land.


[27] In our considered view, the appellant’s reliance on both cases is misplaced. In both Nasri (supra) and Tan Swee Lan (supra), the claimant’s premised their claims on specific performance of an agreement of sale of land. However, the appellant’s action herein is to set aside or challenge a title based on allegation of fraud. Therefore, the applicable provision would be section 29 of Act 254 which provides that time begins to run upon the plaintiff having discovered the fraud or could have discovered it with reasonable diligence.


[28] In the present appeal, the learned High Court Judge held that 12 year limitation started to run from 24.11.1981, being the date on which Yusof, as the first administrator of the estate of the deceased, deposed allegation of fraud pertaining to the said land in


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his private caveat. We found no cogent reason to disturb the trial judge’s findings. His Lordship has properly appreciated the evidence on record and correctly interpreted the law.


[29] Yusof, Hamidah and the appellant all represented the estate of the deceased. The grant of letter of administration to Yusof, and the grant of letters of administration de bonis non to Hamidah and the appellant, were to administer the right and interest of the said land. The action by the estate of the deceased should begin to run at the earliest time when fraud could have been discovered i.e. on 24.11.1981. Further, there was nothing to indicate that knowledge about the fraud was kept from the appellant. When the appellant filed the present action on 16.3.2005, limitation has already set it and his action was therefore statute barred.


[30] Therefore, the grounds of appeal raised by the appellant pertaining to the issue of limitation must fail.


Res Judicata


[31] The appellant contended that res judicata did not apply in the present case because none of the issues raised here have been adjudicated upon and decided on their merits in the three earlier cases relied on by the respondents.


[32] In support of his contention, reference was made to the following passage from the Privy Council case of Koh Heong v Leong Cheong Kweng Mines Ltd. [1964] 30 MLJ 49 at p.53 – 54:


“On the whole their lordships think it impossible to say that there was anything in the first judgment which


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“necessarily and with complete precision” decided this issue against the respondent, and they hold consequently that the estoppel claimed cannot be maintained against it. ”.


[33] The appellant further contended that the learned trial Judge erred by failing to appreciate that the three previous legal proceedings were disposed on grounds of technicality and not on its merits:


(i) OS 434 – The appellant contended that it was possible that the court had refused to extend the caveat because Hamidah had not filed a suit to set aside the transfers. An application to extend a private caveat was purely interlocutory and the court did not decide on the main issues with any finality;


(ii) OS 1094 – The appellant contended that the case was for recovery of possession and there was no necessity for the court to decide on the issue of fraud; and


(iii) Writ 246 – The appellant contended that the court struck out the case on the ground of irregular service of the writ and there was no necessity for the court to decide on the merits of the case.


[34] We began our discussion on the principle of res judicata by referring to the Evidence Act 1950. The principle has been enshrined in section 40 of the Act. The section precluded relitigation of a cause of action brought in a prior litigation. This basic principle of law was designed to prevent a losing party from getting


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multiple chances to litigate what was substantially the same case. Res judicata is considered a rule of fundamental and substantial justice, because it encourages reliance on judicial decisions, bars vexatious litigation, and frees courts to resolve other disputes.


[35] Perhaps, the principle in Henderson v Henderson [1843] Hare 100, 115, was probably the commonest form of res judicata to come before our courts. The implications of that principle were examined by the House of Lords in Arnold v National Westminster Bank pic [1991] 2 AC 93, which is authority for the following propositions:


(i) Cause of action estoppel was absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action;


(ii) Cause of action estoppel also barred the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence, and should in all the circumstances, have been raised; and


(iii) Except in special circumstances where this would cause injustice, issue estoppel barred the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully.


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If the relevant point was not raised, the bar would usually be absolute if it could with reasonable diligence, and should in all the circumstances, have been raised.


[36] In Virgin Atlantic Airways Limited (Respondent) v Zodiac Seats UK Limited (formerly known as Contour Aerospace Limited) (Appellant) [2013] UKSC 46, the Supreme Court of United Kingdom, in a judgment given by Lord Sumption, reviewed the law of res judicata. His Lordship considered that res judicata was a portmanteau term which was used to describe a number of different legal principles with different judicial origin:


(i) Once a cause of action had been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings (cause of action estoppel);


(ii) Where the claimant succeeded in the first action and did not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages.


(iii) Cause of action was treated as extinguished once judgment has been given upon it, and the claimant’s sole right was then a right upon the judgment (the doctrine of merger);


(iv) Even where the cause of action was not the same in the later action as it was in the earlier one, some issue which was necessarily common to both and which had been


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decided on the earlier occasion was binding on the parties (issue estoppel);


(v) The principle first formulated in Henderson v Henderson (supra) which precluded a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones; and


(vi) The more general procedural rule against abusive proceedings, which could be regarded as the policy underlying all of the above principles, with the possible exception of the doctrine of merger.


[37] Halsbury’s Law of England, 4th Edition, Volume 16, paragraph 1530; explained the principle of res judicita in the following terms:


“A party is precluded from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him. Even if the objects of first and second actions are different, the finding on a matter which came directly (not collaterally or incidentally) in issue in the first action, provided it is embodied in a judicial decision that is final, is conclusive in a second action between the same parties and their privies. This principle applies whether the point involved in the earlier decision, and as to which the parties are estopped, is one of fact or one of law, or one of mixed fact and law. The conditions for the application of the doctrine have been stated as being that (1) the same question was decided in both proceedings; (2) the judicial decision said to create the estoppel was final; and (3) the parties to the judicial decision or their privies


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were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. Where one party has raised an issue which his opponent alleges is barred by issue estoppel the opponent can either plead the estoppel and leave the matter to be dealt with at the trial, or he can attempt to have the offending plea struck out.”.


[38] Applying the principles laid down in the above authorities to the factual matrix of the present case, we were of the considered opinion that the plea of issue of estoppel had been rightly upheld by the learned trial Judge. The basis of the learned trial Judge’s decision on this issue was that the appellant was estopped from filing the present suit again for the estate of the deceased because Hamidah had earlier been involved in three previous proceedings for the said estate vide OS 434, writ 246 and OS 1094 where orders had been given with no appeal being filed by Hamidah. Hence, the appellant was res judicata to revise the same cause of action which involved the same allegation of fraud.


[39] We agreed with the reasoning of the learned trial Judge. It was not in dispute that Hamidah had relied on the same facts and issues of alleged fraud to constitute her cause of action in OS 434 and writ 246 and to resist the appellant’s application for summary possession in OS 1094. Therefore, the appellant being the current administrator of the estate of the deceased was estopped by the principle of res judicata to institute the present case against appellant pertaining to the said land based on the same facts and issues of alleged fraud which had been adjudicated.


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[40] Granted that the appellant was not a party to or was involved in the previous three proceedings but the principle of res judicata was still applicable to him by virtue of him being a privy and current administrator of the estate of the deceased.


[41] It is accepted that the same parties (idem actor) requirement for a successful reliance on res judicata does not mean identical parties but included their privies such as a deceased and his heirs, a principal and his agent, a person under curatorship and his curator, a pupil and his tutor, a creditor and debtor in respect of a pledged article if the debtor gave article in pledge after losing a suit which a third party claimed it, a purchaser and seller, if the seller has won or lost the action (See Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 654).


[42] In our considered opinion, the question as to whether persons who are in law identified with those who are parties in two or more sets of proceedings should depend upon the facts of each case and should not only apply to the specific person or persons against whom judgment had been obtained. The “same parties” requirement was not immutable and may in appropriate case be relaxed or adapted to address new factual situation that a court may face. The principle of res judicata is founded on the policy considerations that there should be finality in litigation and avoidance of a multiplicity of litigation or conflicting judicial decisions on the same issue or issues. Rigid adherence to the requirement of the same parties would defeat the purpose of res judicita.


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[43] In the South African case of Caesarstone Sdot-Yam Ltd v World of Marble and Granite 2000 CC & Other, 2013 (6) SA 499 (SC), Willis JA said at para 43:


“It may be that the requirement of ‘the same persons’ is not confined to cases where there is an identity of persons, or where one of the litigants is a privy of a party to the other litigation, deriving their rights from that other person. Subject to the person concerned having had a fair opportunity to participate in the initial litigation, where the relevant issue was litigated and decided, there seems to me to be something odd in permitting that person to demand that the issue be litigated all over again with the same witnesses and the same evidence in the hope of a different outcome, merely because there is some difference in the identity of the other litigating party.”.


[44] In Resolution Chemicals Ltd v H. Lundbeck A-S [2013] EWCA Civ 924, the United Kingdom’s Court clarified the position of “privity of interest”, which provides an exception to the general rule of estoppel that only original parties are bound. Lord Justice Floyd concluded from a review of the case law on privity of interest that:


“a court which has the task of assessing whether there is privity of interest between a new party and a party to previous proceedings needs to examine (a) the extent to which the new party had an interest in the subject matter of the previous action; (b) the extent to which the new party can be said to be, in reality, the party to the original proceedings by reason of his relationship with that party, and (c) against this background to ask


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whether it is just that the new party should be bound by the outcome of the previous litigation


[45] In Chee Pok Choy v Scotch Leasing Sdn Bhd [2001] 4 MLJ 346, Gopal Sri Ram JCA (as he then was) reminded us that the purpose of the doctrine of res judicata is to do justice between the disputing parties and that a rigid application of the doctrine should at all costs be avoided if such invocation would result in injustice (at pp. 356):


“Now, res judicata is not merely a technical rule of pleading. It is a doctrine of substantial justice. It’s a process whereby justice is achieved procedurally by precluding a party from reagitating in subsequent proceedings a complaint or an issue that has, or could fairly have been disposed in earlier proceedings between the same parties or their privies. It is merely equity in action in the procedural arena…”.


[46] We agreed with the decision of the learned trial Judge when his Lordship held that to allow the present case to sustain in the light of three binding orders of the Court was to condone an abuse of the process of the Court and to defeat public policy and public interest that there should be finality in litigation. We hasten to add that, in the circumstances of the present case, it was just that appellant be bound by the outcome of the previous proceedings.




[47] In the result, the appeal was dismissed with costs fixed at RM10,000.00 and the order of the High Court affirmed. Deposit was refunded to the appellant.


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Dated: 24 November 2014






Court of Appeal Malaysia


Counsel for the appellant M.Thayalan Messrs. Thayalan & Associates No.24, (Tingkat Satu) Lebuh Penang 10200 Pulau Pinang.


Counsel for the respondents Lim Chang (Bok Chuang Chee with him) Messrs. B.C.Teh & Yeoh Unit 3 & 4, Tingkat 4 & 5 Canton Square No.56, Jalan Cantonment 10250 Pulau Pinang.


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