[2020] 1 LNS 1686 Legal Network Series

IN THE HIGH COURT OF MALAYA AT JOHOR BAHRU

IN THE STATE OF JOHOR DARUL TAKZIM, MALAYSIA
[ORIGINATING SUMMONS NO: 24–3244/2006]
[EXECUTION APPLICATION NO: JA–36–2–03/2018]

Dalam Perkara mengenai Seksyen

327 Kanun Tanah Negara, 1965
(sebagaimana dipinda)

Dan

Dalam Perkara mengenai tanah-

tanah terkandung dalam Johor
Geran No. 10973 Lot 1417
(sekarang dikenali sebagai GRN
81809 Lot 1417), EMR 1876 Lot
531 (sekarang dikenali sebagai
GM 1304 Lot 5481), EMR 2439
Lot 536 dan EMR 3560 Lot 3425
(sekarang dikenali sebagai GM
2152 Lot 3425) semuanya terletak
di Mukim Benut, Daerah Pontian,
Negeri Johor.

Dan

Dalam Perkara mengenai tanah-

tanah terkandung dalam EMR
3019 Lot 3798 (sekarang dikenali
sebagai GM 3491 Lot 3798) dan
EMR 2473 Lot 3796 (sekarang
dikenali sebagai GM 3028 Lot
3796) Mukim Sungai Kluang
Daerah Rengit, Negeri Johor.

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[2020] 1 LNS 1686 Legal Network Series

Dan

Dalam Perkara mengenai Kaveat

Persendirian yang dimasukkan
oleh TAN LIAN HOO pada 31- 10-
2002 didaftarkan di bawah No.
Perserahan P12439/2002 Jilid 1834
Folio 70 dan Kaveat Persendirian
yang dimasukkan oleh TAN LIAN
KERN pada 28-10-2004
didaftarkan di bawah No.
Perserahan 37202/2004 mengikat
tanah terkandung dalam Johor
Geran 10973 Lot 1417 (sekarang
dikenali sebagai GERAN 81809
Lot 1417), Mukim Benut, Daerah
Pontian, Negeri Johor.

Dan

Dalam Perkara mengenai Kaveat

Persendirian yang dimasukkan
oleh TAN LIAN HOO pada 28- 10-
2003 didaftarkan di bawah No.
Perserahan 1152/2003 dan pada
28/10/1997 didaftarkan dibawah
No. Perserahan 489/1997, Jilid 27
Folio 194 yang mengikat tanah
terkandung dalam EMR 1876 Lot
531 (sekarang dikenali sebagai
GM 1304 Lot 5481), EMR 2439
Lot 536, EMR 2362 Lot 3436
(sekarang dikenali sebagai GM

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[2020] 1 LNS 1686 Legal Network Series

2997 Lot 3436) dan EMR 2363 Lot

3437 (sekarang dikenali sebagai
GM 2998 Lot 3437) semuanya
terletak di Mukim Benut, Daerah
Pontian, negeri Johor.

Dan

Dalam Perkara mengenai Kaveat

Persendirian yang dimasukkan
oleh TAN LIAN HOO pada 8- 02-
2002 didaftarkan di bawah No.
Perserahan 129/2002 mengikat
tanah terkandung dalam EMR
3560 Lot 3425 (sekarang dikenali
sebagai GM 2152 Lot 3425)
Mukim Benut, Daerah Pontian,
negeri Johor.

Dan

Dalam Perkara mengenai Kaveat

Persendirian yang dimasukkan
oleh TAN LIAN HOO pada
16/5/2003 dibawah No. Perserahan
132/2003 dan pada 14/5/1997 di
bawah No. Perserahan 38/1997
Jilid 5 Folio 85 yang mengikat
tanah terkandung dalam EMR
2473 Lot 3796 (sekarang dikenali
sebagai GM 3028 Lot 3796) dan
EMR 3019 Lot 3798 (sekarang
dikenali sebagai GM 3491 Lot
3798) terletak di Mukim Sungai

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[2020] 1 LNS 1686 Legal Network Series

Kluang, Daerah Rengit, negeri

Johor.

Dan

Dalam Perkara mengenai Kaveat

Persendirian No. Perserahan
371/1995 Jilid 23 Folio 55 yang
dimasukkan oleh TAN LIAN
KERN pada 7/10/1995 yang
mengikat tanah terkandung dalam
GM 1304 Lot 5481 (dahulu
dikenali sebagai EMR 1876 Lot
531) Mukim Benut, Daerah
Pontian, negeri Johor.

Dan

Dalam Perkara mengenai Kaveat

Persendirian No. Perserahan
77/1995 Jilid 5 Folio 8 yang
dimasukkan oleh TAN LIAN
KERN pada 16/11/1995 yang
mengikat tanah terkandung dalam
GM 3028 Lot 3796) (dahulunya
dikenali sebagai EMR 2473 Lot
3796) Mukim Sungai Kluang,
Daerah Rengit, negeri Johor.

BETWEEN

1. TAN AH BOH @ TAN LIAN KOON

2. TAN LIN HOCK @ TAN LIAN HOCK
3. TAN TONG CHIN

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4. TAN THONG KOOI

5. TAN TONG GUAN
6. TAN TONG TEK ... PLAINTIFFS

AND

1. TAN LIAN HOO

2. TAN LIAN KERN … DEFENDANTS

GROUNDS OF JUDGMENT

Introduction

[1] This is the Second Defendant’s application (“this Application”)

in enclosure 117 which was in essence to strike out/ stay the
writ of seizure and sale (“WSS”) of the First, Third, Fifth and
Sixth Plaintiffs’ (collectively “the Plaintiffs”) dated 13 February
2020 in enclosure 115, and applications relating thereto in
enclosures 114 (Certificate of Urgency) and 116 (Precise for the
Writ of Seizure and Sale); as well as a stay of the Order
obtained by the Plaintiffs on 17 January 2019, pursuant to their
application in enclosure 7 (Application for the WSS) dated 19
July 2018.

The background facts

[2] This fiercely and vigorously contested matter began via

Originating Summons No: 24–3244 of 2006, when the Plaintiffs
applied to remove caveats lodged by the Defendants between
1995 and 2004 on the Plaintiffs’ lands. An Order was obtained
by the Plaintiffs in 2008 in their favour. On 16 December 2011,
the Registrar had ordered the Defendants to pay to the Plaintiffs
damages, which were eventually assessed in the sum of
MYR999,317, via Order dated 1 February 2013.

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[3] The Defendants refused to pay this sum, and to enforce the
Order dated 1 February 2013, a prohibitory order was obtained
by the Plaintiffs on 22 March 2018, against the Defendants on
lands (“the Lands”) that they part-owned. The Plaintiffs then, on
19 July 2018, filed enclosure 7, for among others, the issuance
of a WSS.

[4] As a result thereof, the Second Defendant filed three

applications on 20 September 2018, 23 September 2018 and 16
December 2018, to set aside the Order of the Registrar dated 16
December 2011, and to stay all execution proceedings. However,
on 17 January 2019, the Judicial Commissioner allowed
enclosure 7, and dismissed all three applications by the Second
Defendant.
[5] On 30 January 2019, the Plaintiffs filed an application to extend
the prohibitory order, which had, in the meantime, lapsed due to
the delay caused by the Second Defendant’s applications. On 30
June 2019, an extension was granted.
[6] On 23 August 2019, the First Defendant filed an application to
set aside the decision of 17 January 2019, and also proceeded to
file, on 29 September 2019, an application to issue a third party
notice to the Plaintiffs’ solicitors, and a further application
dated 7 October 2019 for stay of execution of the Order dated 17
January 2019. The First Defendant relied on the averment that
he had no knowledge of the events that had transpired, and was
not served the cause papers. All three applications were
dismissed on 28 November 2019, on the basis that they were
groundless, repetitive, and were attempts to thwart the execution
of the WSS.
[7] On 12 February 2020, a further extension of the prohibitory
order was allowed, on the basis that the further delay was caused
by the Defendants themselves. On 13 February 2020, enclosure

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115 was issued. The Second Defendant, on 18 February 2020,

filed this Application, which was dismissed for the following
reasons. Since the facts are extremely convoluted, Diagram A is
produced for ease of reference.

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Contentions, evaluation, and findings

Whether leave to issue WSS/ writ of execution necessary

[8] The nub of the Second Defendant’s contention was that since the
First and Fourth Plaintiffs had passed away in September 2018,
and May 2020 respectively, a change, therefore, had taken place
and as such, the WSS was not in compliance with Order 46 rule
2(1)(b) of the Rules of Court (“Rules of Court”), which reads:

Order 46 – Writs of execution: General

Rule 2. When leave to issue any writ of execution is

necessary

(1) A writ of execution to enforce a judgment or order

may not be issued without the leave of the Court in the
following cases:

...

(b) where any change has taken place, whether by death or

otherwise, in the parties entitled or liable to execution
under the judgment or order;

...

[9] In my view, the Second Defendant’s contention is untenable in

view of the fact that, as early as 19 July 2018, the Plaintiffs,
including the First, Fourth to Sixth Plaintiffs had already
applied for the issuance of the WSS in enclosure 7, pursuant to
Order 46 of the Rules of Court. It is also vital to note that on 25
October 2018, the Court had granted the Sixth Plaintiff an Order
allowing him to represent the First and Third Plaintif’s. That
Order dated 25 October, remained binding, effective and final.

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[10] Despite strong resistance displayed by the Second Defendant via

his three applications dated 20 September 2018, 23 September
2018 and 16 December 2018, the learned Judicial Commissioner
on 17 January 2019, allowed enclosure 7 and dismissed all three
applications by the Second Defendant. As of today, that decision
of 17 January 2019 remained final and binding.

[11] The Second Defendant’s contention, therefore, pursuant to Order

46 rule 2(1)(b) holds no water since the WSS in enclosure 115
dated 13 February 2020, issued before the death of the Fourth
Plaintiff, is a consequential order to enclosure 7, which was
already allowed on 17 January 2019, after the order of
substitution dated 15 October 2018 had already been made in
favour of the Sixth Plaintiff to represent the First and Third
Plaintiffs.

[12] It is, therefore, unfathomable that the Second Defendant has now
chosen to apply to strike out enclosure 115, together with
enclosures 114, and 116, bearing in mind the finality of all the
orders made, that had led to enclosure 115.

[13] On this note, reference is made to Mohamed Tawfik Bin Tun Dr.
Ismail v. HLG Credit Sdn. Bhd. & Anor [2012] 5 MLRA 211,
where it was stated that Order 46 rule 2 would not apply where
the writ of execution had already been issued.

[14] The Second Defendant, in his submission relied on several

authorities including that of Kay Hian v. Ma Boon Lan [2014] 1
CLJ 464, where it was stated by the Court of Appeal that leave
pursuant to Order 46, rule 2(1)(b) was necessary. In my view,
the facts of that case are distinguishable as, the plaintiff, in that
scenario, had changed its name from UOB Kay Hian to Kay
Hian, but had not applied to substitute its original name for the
new name. In the present case, it was undisputed that the Sixth

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Plaintiff, by an order dated 25 October 2018, had been appointed

as the personal representative of the First and Third Plaintiffs
pursuant to Order 15 rule 7 (Change of parties by reason of
death) of the Rules of Court, and that the Fourth Plaintiff had
passed away after the WSS had been issued.

[15] The argument of the Second Defendant on the application of

Order 46 rule 2(1)(b) based on the authorities he had cited, was,
therefore, misconceived.

Whether this Application was barred by the doctrine of res judicata

[16] It is pertinent to note that this Application contains averments

which, in essence, amount to revisiting the issues in enclosure 7,
which resulted in the decision of 17 January 2019, in favour of
the Plaintiffs. That application had already been fiercely
contested and issues ventilated, and as such, the doctrine of res
judicata was triggered.

[17] The doctrine of res judicata was expounded in numerous

authorities, including Asia Commercial Finance (M) Berhad v.
Kawal Teliti Sdn Bhd [1995] 3 CLJ 783, where it was elucidated
by Peh Swee Chin SCJ, in the following passage:

What is res judicata? It simply means a matter adjudged,

and its significance lies in its effect of creating an estoppel
per rem judicature. When a matter between two parties has
been adjudicated by a Court of competent jurisdiction, the
parties and their privies are not permitted to litigate once
more the res judicata, because the judgment becomes the
truth between such parties, or in other words, the parties
should accept it as the truth; res judicata pro veritate
accipitur.

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[18] This was reiterated by Arifin Zakaria CJ in the Federal Court

case of Joseph bin Paulus Lantip & Ors v. Unilever Plc [2012] 7
CLJ 693, in the following passage:

What is meant by res judicata was well explained in Asia

Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd
[1995] 3 CLJ 783, where Peh Swee Chin FCJ in delivering
the judgment of the court stated…

[19] In my view, the matters raised in this Application from

paragraphs 7 to 12 had already been canvassed, ventilated,
litigated and decided in the hearing of earlier applications filed
by the Defendants, pertaining to enclosure 7. As such, the
doctrine of res judicata applied, which precluded the Second
Defendant from raising these issues in this Application.

Whether this Application was an abuse of the process of Court

[20] The Plaintiffs argued that this Application was an abuse of the
process of Court as it was one of the many attempts by the
Defendants to thwart the Plaintiff’s effort to enforce the
judgment that they had obtained in 2013.

[21] ‘Abuse of process’ was described by Lord Denning in the case

of Goldsmith v. Sperrings Ltd [1972] 2 All ER 566 in the
following enlightening passage:

In a civilised society, legal process is the machinery for

keeping order and doing justice. It can be used properly or
it can be abused. It is used properly when it is invoked for
the vindication of men’s rights or the enforcement of just
claims. It is abused when it is diverted from its true course
so as to serve extortion or oppression; or to exert pressure
so as to achieve an improper end. When it is so abused, it

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is a tort, a wrong known to the law. The Judges can and

will intervene to stop it. They will stay the legal process,
if they can, before any harm is done. If they cannot stop it
in time, and harm is done, they will give damages against
the wrongdoer.

[Emphasis added.]

[22] Reference is made also to the following passage of Abdul Malik

Ishak JCA in the Court of Appeal case of Sim Kooi Soon v.
Malaysia Airlines System [2010] 9 CLJ 924 :

When you say that you are abusing the process of the
court, you are in fact saying that the proceeding is lacking
in bona fides and is not only frivolous, it is also vexatious
or oppressive. Making use of the process of the court in an
oblique way amounts to an abuse of the process of the
court. And the person who abuses the process of the court
is only interested in accomplishing some improper purpose
and that is to mount a collateral attack which offends
justice.

[23] A perusal and scrutiny of the history, chronology and minutes of

the proceedings of this case, and the number of applications
filed by the Defendants (which is apparent from Diagram A) led
to a very strong and irresistible inference that this Application
amounted to a deliberate attempt to impede the execution
proceedings by the Plaintiffs to enforce the judgment obtained
more than seven years ago on 1 February 2013. The challenges
faced by the Plaintiff were exacerbated by the passage of time
which overtook the mortality of several of the Plaintiffs.

[24] This Court takes a very dim view of applications of such nature,
compounded by the fact that the Defendants had not complied

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with a single court order since 2013. It is my view, therefore,

that the Second Defendant had acted inequitably and had not
come to court with clean hands, and as such, this Court, as a
bastion of justice, was fortified in dismissing this Application,

[25] At this juncture, reference is made to Johnson v. Gore Wood &

Co (a firm) [2002] 2 AC 1, where Lord Bingham referred to the
importance of finality in litigation:

The underlying public interest is that there should be

finality in litigation and that a party should not be twice
vexed in the same matter. This public interest is reinforced
by the current emphasis on efficiency and economy in the
conduct of litigation, in the interests of the parties and the
public as a whole. The bringing of a claim or the raising of
a defence in later proceedings may, without more, amount
to abuse if the court is satisfied (the onus being on the
party alleging abuse) that the claim or defence should have
been raised in the earlier proceedings if it was to be raised
at all.

[Emphasis added.]

[26] In my view, the root of this protracted dispute lies in the

judgment sum of MYR999,317, together with interests, which
the Defendants have not only refused to pay, but have taken
turns to mount application after application, appeal after appeal,
in attempts to evade their obligations, pursuant to orders of the
Court.

[27] An analogy is drawn to the facts of the Court of Appeal case of

Sim Kooi Soon v. Malaysia Airlines System [2010] 9 CLJ 924,
where the applicant’s ninth application to review the decision of
the Court of Appeal was dismissed as an abuse of process, in

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view of the fact that he had previously filed eight separate

applications on the same issue. In the present case, it is vital to
highlight that throughout the years, all applications and appeals
filed by the Defendants had been dismissed.

[28] Reference is made also to Ganad Media Sdn Bhd v. Dato’

Bandar Kuala Lumpur (NO 2) [2002] 6 CLJ 6, where Abdul
Malik Ishak J (as he then was) described the role and function of
the Court when dealing with applications that amount to an
abuse of process:

Generally speaking, the process of the court must be used

properly, honestly and in good faith and it must not be
abused. That must surely be the best way to describe the
meaning of the term ‘abuse of process.’ The court will
certainly not allow itself to be misused. The court will
certainly ensure that its machinery will not be used as a
means of vexation or even oppression. It is to prevent the
misuse of the legal machinery that the court must be vested
with the power to intervene summarily. Once an abuse of
process has been detected, the court must intervene to stay
or even to dismiss the proceedings and this would be the
very essence of justice.

[Emphasis added.]

[29] In my view, the Plaintiffs in the present case were not only
denied their rights pursuant to the judgment obtained, they have
suffered litigation fatigue caused by the multifarious
applications by the Defendants. In the interest of justice,
therefore, the Plaintiffs should be allowed to move forward and
enjoy their fruits of litigation, which have been long overdue.

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Conclusion

[30] In the upshot, based on the aforesaid reasons, and after careful
consideration of all the evidence before this Court, and written
and oral submissions of both parties, this Application was
dismissed with costs.

Dated : 19 NOVEMBER 2020

(EVROL MARIETTE PETERS)

Judicial Commissioner
High Court, Johor Bahru

Counsel:

For the first, third, fifth and sixth plaintiffs - Julie Lim; M/s Julie Lim,
Vasanthan & Co

For the second defendant - Yahya Chuah; M/s Sri Kumar Gunapati & Co

Case(s) referred to:

Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd [1995] 3 CLJ
783

Ganad Media Sdn Bhd v. Dato' Bandar Kuala Lumpur (No 2) [2002] 6 CLJ 6

Goldsmith v. Sperrings Ltd [1972] 2 All ER 566

Johnson v. Gore Wood & Co (a firm) [2002] 2 AC 1

Joseph bin Paulus Lantip & Ors v. Unilever Plc [2012] 7 CLJ 693

Kay Hian v. Ma Boon Lan [2014] 1 CLJ 464

Mohamed Tawfik Bin Tun Dr. Ismail v. HLG Credit Sdn. Bhd. & Anor [2012] 5
MLRA 211

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Sim Kooi Soon v. Malaysia Airlines System [2010] 9 CLJ 924

Legislation referred to:

Rules of Court 2012, O. 15 r. 7, O. 46 r. 2 (1)(b)

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