IN THE COURT OF APPEAL MALAYSIA

(APPELLATE JURISDICTION)

CIVIL APPEAL NO: S-02(NCVC)(A)-1899-09/2018

BETWEEN

KWAN NGEN WAH … 1ST APPELLANT

ANG YUNG YUNG … 2ND APPELLANT

[ADMINISTRATRIX OF THE ESTATE
OF THE DECEASED KWAN NGEN CHUNG
(NRIC NO. 600712-12-5821)]

AND

JULITA BINTI TINGGAL … RESPONDENT

[In the matter of High Court in Sabah and Sarawak at Kota Kinabalu
Application for Judicial Review No. BKI-13NCvC-17/10-2017(HC2)

IN THE MATTER OF the dissenting

single minority decision of the Native
Court of Appeal at Kota Kinabalu,
Sabah Appeal No. BKI-47-5/5-2016
that was pronounced in Open Court on
14.7.2017 in allowing the appeal and
erroneously recorded as the final
decision;

1
AND

IN THE MATTER OF the appeal to the

Native Court of Appeal at Kota
Kinabalu, Sabah against the
unanimous decision of District Native
Court Case No. Mand 10/2012
delivered on 10.5.2016;

AND

IN THE MATTER OF the appeal by

Kwan Ah Hee (deceased), Kwan Ngen
Wah and Kwan Ngen Chung to the
Native Court of Appeal at Kota
Kinabalu, Sabah by way of appeal no.
BKI-47-5/5-2016;

AND

IN THE MATTER OF the Native Courts

Enactment 1992

AND

IN THE MATTER OF the Native Courts

Ordinance (Sabah Cap. 86)

2
 AND

IN THE MATTER OF Order 53 of the

Rules of Court, 2012 and other relevant
provisions

AND

IN THE MATTER OF the Schedule to

the Courts of Judicature Act 1964

AND

IN THE MATTER OF Chapter VIII of

Part 2 of the Specific Relief Act, 1950

AND

IN THE MATTER OF Section 3(1) – (4)

inclusive of the Interpretation
(Definition of Native) Ordinance
(Sabah Cap. 64)

Between

Julita Binti Tinggal … Applicant

3
 And

Kwan Ah Hee … 1st Respondent

Kwan Ngen Wah … 2nd Respondent
Kwan Ngen Chung … 3rd Respondent
Native Court of Appeal … 4th Respondent]

CORAM:

ABDUL KARIM BIN ABDUL JALIL, JCA

RAVINTHRAN PARAMAGURU, JCA
AHMAD ZAIDI BIN IBRAHIM, JCA

JUDGMENT

Introduction

[1] This is an appeal against the decision of the High Court sitting in
Kota Kinabalu. The High Court granted the judicial review application by
the respondent (Julita Binti Tinggal) to quash the judgment of Justice
Ismail Brahim who sat as the presiding judge of the three-member panel
of the Native Court of Appeal. Consequently, the judgment of the
remaining two lay members of the Native Court of Appeal who dissented
from the judgment of Justice Ismail Brahim was declared as the final
judgment.

4
Background facts

[2] The instant dispute is about native status of the first appellant and
Kwan Ngen Chung (deceased) who is represented by his administratrix,
the second appellant. For ease of reference, we shall refer to them
collectively as the appellants.

[3] Under section 3(1) of the Interpretation (Definition of Native)

Ordinance 1952 (Sabah Cap.64), a person claiming to be native may
apply to a Native Court established under the Native Courts Enactment
1992 for a declaration to that effect. Under section 3(2), the Native Court
has exclusive jurisdiction to determine the application and grant a
declaration to that effect. The judgment of the Native Court under section
3(3) is subject to review and scrutiny, and appeal to the District Officer or
a Board of Officers appointed by the Yang Di-Pertua Negeri. Section 3(4)
enacts that any decision under subsection (1) shall be conclusive
evidence for all purposes in respect of the matter or matters to which it
relates.

[4] This provision was availed of by the appellants a long time ago. In
September of 1979, they applied for native status at the Kota Kinabalu
Native Court. They were successful. The declaration of native status was
scrutinized and endorsed as correct by the District Officer. Both
respondents were issued “Native Certificates” by the Native Court. The
Native Court that heard the application of the appellants was constituted
by the predecessor of the Native Courts Enactment 1992, i.e. the Native
Courts Ordinance 1953 (Cap.86).

5
[5] The Native Certificates of the appellants were challenged some 37
years later against the backdrop of a rival claim to native lands. In 1992,
the appellants purchased 46 parcels of native title lands from their owners.
They took possession of the lands. They developed an oil palm plantation
on it. The titles were not issued at that time. Titles were issued to the 46
land owners in 2001. But a third party by the name of Abdul Hamid Duli
managed to become the registered owner. He sold the lands to a non-
native by the name Vun Yun Lau @ Vun Yun Liew Tony who caused the
lands to be registered in the name of his sister in law who is the
respondent herein (Julita binti Tinggal).

[6] Julita binti Tinggal sold the lands to one Hiew Kon Fah in 2005 who
commenced an action in the High Court sitting in Sandakan in Suit No.
S22-27-2005 against the appellants to recover possession. In that suit,
Hiew Kon Fah challenged the native status of the appellants. Under the
Sabah Land Ordinance 1930 (Cap.68), only a native is entitled to
purchase native title land. The High Court rejected the challenge to the
native status of the appellants. It held that the jurisdiction to determine the
native status belonged to the Native Court. The claim of Hiew Kon Fah
was dismissed and the counterclaim of the appellants herein
(respondents in the Sandakan in Suit No. S22-27-2005) was allowed on
28.10.2011. Hiew Kon Fah’s appeal to the Court of Appeal was
unsuccessful and the matter is now pending before the Federal Court.

[7] Julita binti Tinggal then filed an application to the District Native
Court on 27.3.2017 at Kota Kinabalu to challenge the Native Certificates
of the appellants that were issued on 12.5.1979. The District Native Court
is the middle tier court in the native court system. It is presided by the
District Officer and two members who are District Chiefs or Native Chiefs.

6
Below it is the Native Court that is presided by a District Chief and two
members from the ranks of Native Chiefs. Above it is the Native Court of
Appeal which is presided by a High Court Judge and two members from
the ranks of District Chiefs or Native Chiefs. Lawyers may not appear for
any party in the Native Court or District Native Court. However, they may
represent any party at the Native Court of Appeal provided they are
registered as a “Native Court of Appeal advocate” in accordance with
prescribed procedure.

[8] The application of Julita binti Tinggal was made under section 16(1)
of the Native Courts Enactment 1992. The District Native Court did not
decide the matter immediately. It decided some four years later after
giving short notice to the appellants. On 19.5.2016, it decided that the
native certificates were forged and were invalid. The appellants were
aggrieved by this decision. They filed an appeal to the Native Court of
Appeal. It was presided by Justice Ismail Brahim and two members
(Matsah bin Sahat and Awang Hanib bin Kassim) who are Native Chiefs.
Parties were represented by legal counsel at the appeal hearing.

[9] The Native Court of Appeal delivered its judgment on 14.7.2017.

The two lay members were of the opinion that the District Native Court
had jurisdiction in the matter of the application of Julita binti Tinggal to
revise the decision of the Native Court that issued the native certificates
in question in 1979. They found that the Native Certificates were fake
and/or irregular as the appellants had admitted in another suit that their
parents came from China. They dismissed the appeal and affirmed the
decision of the District Native Court. On the other hand, Justice Ismail
Brahim only dealt with a question of law. He held that section 16 of the
Native Courts Enactment 1992 does not have retrospective effect and

7
therefore the District Native Court did not have jurisdiction to hear the
application of Julita binti Tinggal to invalidate the Native Certificates in
question. In coming to this conclusion, Justice Ismail Brahim adopted the
view of Justice Douglas Cristo Primus Sikayun who presided in the Native
Court of Appeal in the case of Ungkari bin Ikus v Hon Chung Lip (Case
No.BKI-47-10/12-2015.

[10] The issue in the Ungkari case was the same as in the instant appeal.
The applicant attempted to invalidate the native certificate issued to the
respondent in 1981. The application for revision was made under section
16 of the Native Courts Enactment in 2011. Justice Douglas Cristo Primus
Sikayun observed that section 16 which granted wide powers of revision
to the District Native Court had no equivalent in the predecessor Native
Courts Ordinance 1953. Under the repealed Ordinance, the District
Officer had limited powers to scrutinize the decision of the Native Court.
Citing the Federal Court case of Datuk Syed Kechik bin Syed Mohamed
v Government of Malaysia [1979] 2 MLJ 101, His Lordship held that under
section 3(3) of the Interpretation (Definition of Native) Ordinance 1952
(Sabah Cap.64), an appeal lies against the declaration of native status
and since there was no appeal, the native certificate is final and
conclusive. His Lordship also held that nothing in the Native Courts
Enactment 1992 suggests that it has retrospective effect. In respect of
section 24, Justice Douglas Cristo Primus Sikayun expressed the view
that the role of the two lay members was confined to matters of native law
and custom only.

[11] After deciding the jurisdiction point in respect of section 16 of the

Native Courts Enactment 1992, Justice Ismail Brahim held that as the
matter did not involve native law or custom, he is not required to seek the

8
opinion of the lay members and declared his judgment as the final
judgment of the Native Court of Appeal. His Lordship followed the decision
of Justice Douglas Cristo Primus Sikayun in the Ungkari case on this point
as well. Justice Douglas Cristo Primus Sikayun’s view was also endorsed
by Justice Mairin bin Idang @ Martin at the High Court in the judicial
review case of Jamili Bin Mohiman v Lim Nyuk Foh and anor [2019]
MLRHU 1635.

[12] Julita binti Tinggal filed the instant judicial review application to
reverse the judgment of Justice Ismail Brahim who sat as the presiding
judge of the Native Court of Appeal. The two main reliefs sought in the
judicial review are as follows:

(a) An order of certiorari to quash the decision of Justice Ismail Brahim as

the final judgment and

(b) A declaration that the judgment of the two native chiefs be recorded as
the final judgment.

[13] The learned High Court Judge gave careful consideration to section
24 of the Native Courts Enactment 1992. The provision reads as follows:

Judgement of appellate Court.

24. The judgement of an appellate Court shall be unanimous or that of the

majority of its members.

[14] Under section 2, an “appellate Court” means a District Native Court

or the Native Court of Appeal. Her Ladyship held that since the provision
is unambiguous, Justice Ismail Brahim had acted contrary to section 24 in
recording his judgment as the final judgment of the Native Court of Appeal.
Her Ladyship further held that the lay members who are Native Chiefs

9
have equal standing under the Native Courts Enactment 1992. Her
Ladyship then declined to determine the jurisdiction issue in relation to
section 16 and granted the order to quash the judgment of Justice Ibrahim
Brahim. Her Ladyship also granted a declaration that the majority
judgment be recorded as the final judgment.

Issues

[15] Before us the two main issues argued are whether section 24 should
be given a literal meaning in that regardless of the subject matter of the
judgment, all members of the Native Court of Appeal should have equal
say and whether District Native Court that invalidated the Native
Certificates of the appellants had jurisdiction to do so in the first place. We
shall first determine the jurisdiction point.

Jurisdiction

[16] In our view, the District Native Court did not possess jurisdiction to
invalidate the Native Certificates. Our reasons are as follows.

[17] The jurisdiction of the Native Court in Sabah is set out in section 6
of the Native Courts Enactment 1992 which reads as follows:

6. (1) Every Native Court shall exercise original jurisdiction to the extent set
forth and subject to the provisions of this Enactment to hear, try,
determine and dispose of the following cases:

(a) cases arising from breach of native law or custom in which all the
parties are natives;

10
 (b) cases arising from breach of native law or custom, religious,
matrimonial or sexual, if the written sanction of the District Officer
acting on the advice of two Native Chiefs has been obtained to the
institution of the proceedings, where one party is a non-native;

(c) cases involving native law or custom relating to-

(i) betrothal, marriage, divorce, nullity of marriage and judicial

separation;

(ii) adoption, guardianship or custody of infants, maintenance of

dependants and legitimacy;

(iii) gifts or succession testate or intestate; and

(d) other cases if jurisdiction is conferred upon it by this Enactment or

any other written law. (emphasis supplied)

[18] The italicised words to which we have drawn attention circumscribes

the width of the jurisdiction of the Native Courts. Section 6 emphatically
states that the jurisdiction of the Native Courts is only to “the extent set
forth” and “subject to the provisions this Enactment”. Section 6(1)(d)
states the Native Court has jurisdiction if it is conferred by the Enactment
or “any other written law”. Section 3 of the Interpretation (Definition of
Native) Ordinance 1952 (Sabah Cap. 64) is an instance of jurisdiction
being conferred on the Native Court by “other written law”. However, as
noted earlier, it only confers jurisdiction to the Native Court to determine
the native status of a person. Section 3 does not confer the power to the
Native Court or any appellate Native Court to revisit or revise the Native
Certificates issued under it.

[19] We shall now turn to the jurisdiction and powers of the District Native
Court under the Native Courts Enactment 1992. Section 16 and 17 of the
11
Native Courts Enactment 1992 provides for the powers of the District
Native Court. Section 16 provides for its revisionary jurisdiction over the
Native Court whereas Section 17 sets out its appellate powers. In addition,
section 21 states that the appellate courts shall have all the powers and
privileges of a Native Court. Under section 2, the appellate court means
the District Native Court and the Native Court of Appeal.

[20] In the instant case, Julita binti Tinggal applied to the District Native
Court to invoke its revisionary power under section 16 to invalidate the
Native Certificates in question. Section 16 reads as follows:

Power of revision.

PART IV REVISION AND APPEAL

16. (1) All proceedings of every Native Court shall be subject to revision by
the District Native Court which, if it considers that such proceedings are
irregular, improper or unconscionable, may quash or vary the same or direct a
rehearing.

(2) A District Native Court may call for and examine the record of
proceedings of a Native Court for the purpose of satisfying itself as to the
correctness, legality or propriety of any order recorded or passed and as to
the regularity of any proceedings of such court.

(3) In exercising its powers of revision, a District Native Court shall have
the discretion whether to allow the parties involved a right to be heard:

Provided that no final order shall be made to the prejudice of any

person unless such person has had an opportunity of being so heard.

[21] This is a general provision conferring revisionary power to the

District Native Court as it is above the Native Court in the native court
system. It must be observed that there is no specific mention of the power
12
to revisit Native Certificates that were issued by the Native Court under
another law, i.e. the Interpretation (Definition of Native) Ordinance 1952
(Sabah Cap.64). In our opinion, the argument of the respondent that the
District Native Court can revise Native Certificates issued under the
general revisionary power in section 16 is not tenable for the following
reason. Under section 3(3) of the Interpretation (Definition of Native)
Ordinance 1952 (Sabah Cap.64), revisionary and appellate power in
respect of Native Certificates issued by the Native Court is specially
conferred on the District Officer or to the Board of Officers appointed for
that purpose by the Head of State. The provision reads as follows:

3(3). Any declaration of any Native Court made in the exercise of the
jurisdiction conferred upon it by subsection (2) shall be subject to review and
scrutiny by, and appeal to the District Officer or a Board of officers appointed
by the Yang di-Pertua Negeri for the purpose.

[22] It must be noted that this is a comprehensive provision that gives

oversight role to the District Officer or Board of Officers in relation to the
Native Court’s power to issue Native Certificates. It not only provides for
“review and scrutiny” but also provides an avenue for “appeal” to the
District Officer or the Board of Officers. The role of the Board of Officers
was discussed by this court in the case of Madlis Azid v Board of Officers
& Ors [2015] 3 CLJ 168. In that case, the appellants claimed that the
Native Certificate of the third respondent was forged or did not exist. They
applied to the Board of Officers (the third respondent) to review the Native
Certificate. The question that arose in the appeal was whether a third party
apart from an applicant who claims native status can apply for review of
the Native Certificate to the Board of Officers. The Court of Appeal by a
majority answered the question in the affirmative. We are mindful that the
issue at hand is different. Nonetheless, the point to note is that in that

13
case, the court recognised that an avenue for revision or appeal (even by
third parties) exists in section 3(3) of the Interpretation (Definition of
Native) Ordinance 1952 (Sabah Cap.64). But as we said earlier, this
avenue must be availed of before the District Officer or the Board of
Officers appointed for that purpose.

[23] The majority judges in the above-mentioned case also cited Datuk
Syed Kechik Syed Mohamed v Government of Malaysia & Anor [1978] 1
LNS 44 and said that if there is no appeal against the declaration of native
status, the declaration becomes final and binding under section 3(4) of the
Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap.64).

[24] We also note that section 3(2) and (3) came into its present form
with effect from 1.1.1983 (see Enactment 10/1983). Therefore, when the
Native Courts Enactment 1992 came into force on 1.4.1993, the Sabah
Legislature must be deemed to be aware of the provision for revision and
appeal in respect of Native Certificates in section 3(3) of the Interpretation
(Definition of Native) Ordinance 1952 (Sabah Cap.64). However, no
provision was made to remove the power given to the District Officer or
the Board of Officers in section 3(3) of the Interpretation (Definition of
Native) Ordinance 1952 (Sabah Cap.64) or to confer concurrent power in
respect of the same matter to the District Native Court.

[25] In the premises, we are of the view that the principle of generalia
specialibus non derogant should apply in this case and deprive the District
Native Court of jurisdiction to revisit the legality of Native Certificates. The
proper authority that has jurisdiction in the matter is the District Officer or
the Board of Officers set up for that purpose under section 3(3) of the
Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap.64).

14
Thus, section 16 of the Native Courts Enactment 1992 is a general
provision that grants supervisory authority to the District Native Court over
the Native Court. It cannot supplant the authority of the District Officer or
the Board of Officers under section 3(3) of the Interpretation (Definition of
Native) Ordinance 1952 (Sabah Cap.64).

[26] We are also of the view that Justice Ismail Brahim correctly held that
section 16 of the Native Courts Enactment 1992 cannot be invoked to
invalidate Native Certificates issued in 1979 as it has no retrospective
effect. Nothing in the Enactment suggests it has retrospective effect.
There is no equivalent of section 16 which gives broad powers of revision
in the repealed Native Court Ordinance 1953. The District Native Court
did not exist either under the old Ordinance. Appeals from a Native Court
under the Ordinance was to a District Officer. Section 8 of the repealed
Ordinance provided that all decisions of the Native Court are subject to
“scrutiny” of the District Officer. It reads as follows:

8. All proceedings of Native Court shall be subject to scrutiny by the District

Officer who, if he considers that such proceedings are irregular, improper or
unconscionable, may quash or vary the proceedings or a direct a rehearing.

[27] The power to scrutinize proceedings of the Native Court in section

8 is similar to the power vested in section 3(3) of the Interpretation
(Definition of Native) Ordinance 1952 (Sabah Cap. 64) in the District
Officer. This power was exercised by the District Officer in 1981 as the
Native Certificates of the appellants bear his endorsement “Diperiksa and
didapati betul” (Scrutinized and found to be correct) which are the
statutory words found in the prescribed format of the Native Certificate
under Native Courts (Declaration of Native) Interpretation Rules 1958.
Thus, from 1979 to 1992, it would not have been possible under any
15
provision of the Native Court Ordinance 1953 to revisit the Native
Certificates in question. An appeal by any interested party could have
been made to the District Officer or Board of Officers under section 3(3)
of the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap.64)
but it was never done. Therefore, by virtue of section 3(4), the Native
Certificates have become “conclusive”. The provision reads as follows:

(4) The final decision on any application made under subsection (1) shall be
conclusive evidence for all purposes in respect of the matter or matters to which
it relates.

[28] In the premises, the invocation of section 16 of the Native Courts

Enactment 1992 to revisit the validity of the Native Certificates in question
is only permissible if it had been made clear that it has retrospective
effect. This is because it would impair the existing rights of the holder of
the Native Certificates in question.

[29] We would therefore agree with the judgment of Justice Ibrahim

Brahim at the Native Court of Appeal in this case and the judgment of
Justice Douglas Cristo Primus Sikayun at the same court in the Ungkari
case that section 16 of the Native Courts Enactment 1992 does not have
retrospective application in that it can be invoked to review Native
Certificates that were issued before it came into force. We also agree with
the following observation of Justice Douglas Cristo Primus Sikayun:

If the intention of the State Legislature is to equip and empower the Native
Courts with powers of revision and review for any rulings, orders or decisions
made prior to 1992, it must then be clearly stated. There must be a safeguard
measure to sieve litigious matters, matters such as limitation of time must be
considered and taken into account. Further issues of void and voidability must
be resolved and settled by the legislators and should not be left to the courts to
grapple and unravel. Even the High Court does not have an unlimited
16
 revisionary and review powers. It can be an unruly horse. It is always subject
to restrictions.

[30] In concluding that section 16 cannot be availed of by Julita binti

Tinggal to challenge the Native Certificates in question, we have also
considered the import of section 31 of the Native Courts Enactment 1992
which repealed the Native Court Ordinance 1953 and provided some
saving measures in respect of the continuity of the operation of the Native
Courts and the validity of its past orders. It reads as follows:

(a) any Native Court established under a warrant issued under the repealed
Ordinance and exercising jurisdiction immediately prior to the
commencement of this Enactment shall be deemed to be a Native Court
constituted under this Enactment having territorial jurisdiction set out in
the warrant of such court;

(b) any District Chief, Native Chief and Headman empowered by the State
Secretary under the repealed Ordinance to adjudicate in any Native Court
established therein shall be deemed to be so empowered under this
Enactment until the same is revoked;

(c) any pending cases validly instituted before any Native Court or any
appellate authority established under the repealed Ordinance shall
continue to be heard, dealt with and disposed of by the corresponding
court constituted under this Enactment in like manner as if the same were
commenced under the provisions of this Enactment;

(d) any order validly made by any Native Court or any appellate authority
established under the repealed Ordinance shall continue to be valid and
enforceable under this Enactment as if the same were made by the
corresponding court constituted thereunder; and

(e) any subsidiary legislation made under the repealed Ordinance shall in so
far as it is not inconsistent with this Enactment continue to be in force and

17
 have effect as if the same had been made hereunder and may be
repealed, varied or amended under this Enactment.

[31] By virtue of this provision, it can be argued that the present day
Native Court, the District Native Court and the Native Court of Appeal are
the successor courts of the Native Court, Office of the District Officer and
the Native Court of Appeal under Native Court Ordinance 1953.
Nonetheless, the equivalent of section 16 of the Native Courts Enactment
1992 which gave very broad powers of revision did not exist in the old
Ordinance. Furthermore, section 3(3) of the Interpretation (Definition of
Native) Ordinance 1952 (Sabah Cap.64) provides for the finality of Native
Certificates in question if there is no appeal under the same provision. For
this reason, even if the District Native Court is viewed as a successor court
of the Office of the District Officer, we do not think that a successor court
can re-open previous decisions without limitation of time and impair
vested substantive rights as stated in the Ungkari case. By comparison,
in section 20, the time limited for appeal is only 60 days. In the instant
case, the challenge to the Native Certificates were mounted some 37
years later because of a competing claim in respect of transactions
involving native lands.

[32] For all the above reasons, we are of the view that regardless of the
merit of the case, the District Native Court acted in excess of jurisdiction
when it admitted the application of Julita binti Tinggal to invalidate the 37-
year old Native Certificates of the appellants. The majority lay members
in the Native Court of Appeal committed the same error.

18
Section 24 of the Native Courts Enactment 1992

[33] As we pointed out earlier, section 24 enacts that the judgment of the
Native Court of Appeal shall be unanimous or by a majority. The learned
High Court Judge gave a plain literal reading to the provision and declared
that the final judgment is the judgment of the majority members, i.e. the
lay native chiefs.

[34] With the greatest of respect, we are of the opinion that Her Ladyship
erred in not considering the jurisdiction point and the legislative purpose
of empanelling a High Court Judge to sit in the Native Court of Appeal.
Our reasons are as follows.

[35] We shall firstly discuss the impact of the jurisdiction point on section
24. We have given our reasons why we concluded that the District Native
Court had no jurisdiction to invalidate the Native Certificates in question.
In the premises, the judgment of the District Native Court was a nullity.
For the same reason, the majority judgment of the two lay members of the
Native Court of Appeal who ruled that they had jurisdiction to affirm the
decision of the Native Court was also a nullity. We are mindful of the
argument of counsel for Julita binti Tinggal that the appellant did not file a
judicial review application to quash the majority judgment. The response
of counsel for the appellant was that Justice Ismail Brahim had declared
his judgment to be the final judgment and therefore they were not the
adversely affected party in the contemplation of Order 53 rule 2(4) of the
Rules of Court 2012 to be clothed with locus standi to apply for judicial
review.

19
[36] Be that as it may, we are of the view that it was not necessary for
the appellants to obtain an order of certiorari to quash the majority
judgment as it was a nullity from the outset and because the presiding
judge of the Native Court of Appeal treated the majority judgment as a
non-decision for want of jurisdiction and pronounced his judgment to be
the final judgment. Furthermore, the fact that the majority judgment was
not binding and did not require an application for it to be set aside was
tacitly acknowledged by Julita binti Tinggal as she took out the instant
judicial review application to quash Justice Ismail Brahim’s judgment.
Thus, the High Court erred in declaring the majority judgment to be the
final judgment. The judgment of the presiding judge should not have been
quashed but should have been allowed to prevail as the final judgment of
the Native Court of Appeal.

[37] For the above reasons, we are of the view that regardless of the
interpretation of section 24, the judgment of the presiding judge should
not have been quashed as it was the only judgment upon which lawful
reliance could be placed.

[38] We shall now consider the construction to be placed on section 24

of the Native Courts Enactment 1992. Section 24 did not exist in the old
Ordinance. Section 10A of the Native Courts Ordinance 1953 provided
that the Native Court of Appeal shall be composed a High Court Judge,
the Resident and one Native Chief. There is no mention that the judgment
shall be by a majority vote. The only mention of majority judgment was in
respect of the Native Court which was composed entirely of lay Native
Chiefs. Section 4(5) provided as follows:

The judgment of a Native Court shall be that of the majority of its members.
Where their opinion is equally divided the suit or prosecution shall fail.
20
[39] However, in the Native Courts Enactment 1992, section 24 provides
that a judgment of the appellate court shall be unanimous or that of the
majority of its members. At the Native Court of Appeal in this case, Justice
Ismail Brahim said as follows in respect of the role of the lay members:

Although the NCE is silence on the role of the Presiding Judge, I take the view
that he may seek the advice of the other two members when deliberating or
deciding on matters involving customs or ‘adat’. However, when the matter
calls for deliberation on the issue of law [other than customary law or adat] the
presiding judge is not required to seek the advice or assistance of the two
members, even though they may have legal background. The duty to decide
on the issues of law must be left to the presiding judge alone. If this is not
observed there would be a situation where cases may be decided without
sufficient consideration given to the law applicable to matter before the court.
It is for this reason, I think the provision that the High Judge is to act as the
presiding judge over the Native Court of Appeal was included in the NCE. The
same approach had already been taken in Ungkari’s case and I will adopt the
same approach here.

[40] In the Ungkari case, Justice Douglas Cristo Primus Sikayun opined
as follows on the same matter:

I have taken into consideration the views expressed by my two pengapits. But
the issue before this Native Court of Appeal is purely one of law. It should be
clearly noted and understood that the role of the two pengapits is to adjudge
and advise on matters of adat leaving legal issues to the presiding judge to
decide as he is better disposed to handle such matters.

[41] We are of the view that Justice Ismail Brahim and the other judges
(Justice Douglas Cristo Primus Sikayun’s in the Ungkari case and Justice
Mairin bin Idang @ Martin in the Jamili Bin Mohiman case) adopted the
correct approach to section 24. We made this determination after
21
considering the legislative purpose behind the empanelment of a High
Court Judge in the Native Court of Appeal as well as the absurdity that will
result if lay members are at liberty to give any judgment they wished
without regard to the law at the highest tier of the native court system. Our
reasons are as follows.

[42] We reproduced in full section 6 of the Native Courts Enactment 1992

earlier. It sets out the jurisdiction of the Native Courts. It must be noticed
that jurisdiction of the Native Courts is only in respect of native law and
custom governing matters such as marriage, divorce, adoption,
guardianship, inheritance and certain criminal offences involving sexual
misconduct and the like.

[43] In the premises, it follows that Native Chiefs are present at all tiers
of the native court system because their expertise in native law and
custom is required in the adjudication of disputes in matters that fall under
section 6. As opined by Justice Ismail Brahim and Douglas Cristo Primus
Sikayun, a High Court Judge is the presiding judge of the Native Court of
Appeal under the Native Courts Enactment 1992 for a good reason. The
Sabah Legislature had anticipated that issues of civil law that is
unconnected with native law and custom may arise in the adjudication of
disputes. These issues are best dealt by a High Court Judge.

[44] In the instant case the question of law that arose at the outset of the
Native Court of Appeal hearing was the power of the District Native Court
to admit the application of Julita binti Tinggal and the issue of
retrospectivity of written law. However, both Native Chiefs decided on
these issues without deferring to the opinion of the presiding High Court
Judge. It cannot be the intention of the Sabah Legislature that the majority

22
comprising lay Native Chiefs can outvote the High Court Judge at Native
Court of Appeal on matters that do not involve native law or custom and
which are patently outside their areas of competence. This state of affairs,
if allowed to prevail, may on occasion even give rise to conflict between
decisions of Native Courts and that of the Civil Courts.

[45] For the above reasons, we agree with counsel for the appellant that
the absurdity that would result in a plain reading of section 24 can be
avoided by reading the limiting words of “native law and custom” in respect
of the judgment that will prevail by a majority of its members. Amongst the
authorities cited by counsel for the appellant to persuade us to read
section 24 in this manner is the Federal Court case of Tan Kim Hock
Product Centre Sdn Bhd & Anor v Tan Kim Hock Tong Seng Food Industry
Sdn Bhd [2018] 2 CLJ 567.

[46] The above-mentioned case centred on the effect of a plain reading

of section 9 (since repealed) of the Trade Descriptions Act 2011. The
respondent obtained what is known as Trade Description Order (TDO)
under the provision by way of an ex parte application which was the
prevailing practice by stakeholders in the industry. Section 9 does not
expressly say that the application can be made ex parte.

[47] The Federal Court considered the fact that a TDO, though quasi
criminal in effect, can only be meaningfully used if the element of surprise
is preserved pending further action by the trade mark owner. The Federal
Court also carefully considered the purpose of the Trade Descriptions Act
2011 which was to afford better protection to traders and consumers alike.
The court, speaking through Balia Yusof Wahi FCJ, then said as follows:

23
 [45] Section 9(1) of Act 730 merely provides that any person "may apply to the
High Court"..... Supplementing the words 'ex parte ' into the provision would
certainly achieve the very purpose for the enactment of the provision and satisfy
the mischief which the provision seeks to overcome. It is also in accord with the
provisions of s. 17A of the Interpretation Acts 1948 and 1967 on the purposive
approach of interpretation. To borrow the words of Denning LJ in the Seaford
Court Estates case (supra ), it is to give "force and life" to the intention of the
Legislature.

[48] The Federal Court in the above mentioned case read the word “ex
parte” into section 9 in order to render a TDO workable and promote the
legislative purpose in question. The Federal Court also quoted with
approval the following passage from the Discipline of Law by Lord
Denning to support its approach:

The literal method is now completely out of date. It has been replaced by the
approach which Lord Diplock described as the "purposive approach"... In all
cases now in the interpretation of statutes we adopt such a construction as will
"promote the general legislative purpose" underlying the provision. It is no
longer necessary for the judges to wring their hands and say: "There is nothing
we can do about it". Whenever the strict interpretation of a statute gives rise to
an absurd and unjust situation, the judges can and should use their good sense
to remedy it - by reading words in, if necessary - so as to do what Parliament
would have done, had they had the situation in mind.

[49] In the instant case as well, as we said earlier, the limiting words of
“native law and custom” should be read into section 24 to avoid the
absurdity that will result in a literal reading of the provision. Otherwise, the
intention of the Sabah Legislature in empanelling a High Court Judge to
sit at the apex Native Court would be frustrated. Furthermore, as observed
by Justice Ismail Brahim in this case and by Justice Douglas Cristo Primus
Sikayun in the Ungkari case it has always been the practice of Native
24
Chiefs at the Native Court of Appeal to defer to the opinion of the High
Court Judge on a legal issue that is unconnected with native law and
custom.

Conclusion

[50] For all the above reasons, we unanimously allow the appeal and set
aside the decision of the High Court in the judicial review application. The
respondent shall pay costs of RM45,000.00 here and below to the
appellants which shall be subject to allocatur.

SGD
(RAVINTHRAN PARAMAGURU)
Judge
Court of Appeal Malaysia
Putrajaya
Dated: 7th March 2022

Parties Appearing:

For The Appellants:

Dato’ Cyrus V Das

Rebecca Thong Fei Eng
[Messrs Szetu & Co]

For The Respondent:

Datuk Firoz Hussein bin Ahmad Jamaluddin

Datuk Haji Ansari bin Abdullah Ali
Muhamad Amirul bin Amin
[Messrs Ansari & Co]

25