IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) APPLICATION NO. BETWEEN JULITA BINTI TINGGAL + APPLICANT AND KWAN NGEN WAH «1ST RESPONDENT ANG YUNG YUNG .». 2ND RESPONDENT [Administratix of the Estate of the deceased Kwan Ngen Chung (NRIC No.: 600712-12-5821)] [In the Court of Appeal Malaysia (Appellate Jurisdiction) Civil Appeal No. NCVC 99-09/2018) Between KWAN NGEN WAH -- 187 APPELLANT ANG YUNG YUNG 28° APPELLANT [Administratix of the Estate of the deceased Kwan Ngen Chung (NRIC No.: 600712-12-5821)], And JULITA BINTI TINGGAL, .-RESPONDENT [In the matter of the High Court in Sabah & 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. BKO-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 AND IN THE MATTER OF the appeal to the Native Court of Appeal at Kata 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 Ngeh Wah and Kwan Ngen Chung to the Native Court of Appeal at Kata 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. 88), 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 Vill of Part 2 of the Specific Relief Act 1950; AND IN THE MATTER OF Sections 3(1)-(4) inclusive of the Interpretation (Definition of Native) Ordinance (Sabah Cap. 64). Between Julita Binti Tinggal Applicant And Kwan Ah Hee - 1%" RespondentKwan Ngen Wah 2™ Respondent Kwan Ngen Chung ...3 Respondent Native Court of Appeal 4" Respondent (Decided by Puan Supang Lian, the Judge of the High Court in Sabah and Sarawak at Kota Kinabalu on 14" August 2018] NOTICE OF MOTION (Leave to Appeal to the Federal Court) TAKE NOTICE that on the day of 2022 at = amipm, or as soon as he can be heard, Ansari Abdullah, counsel for the abovenamed Applicant shall move this Honourable Court for the following Orders: 1. That leave be granted to the Applicant to appeal against the whole of the decision of the Court of Appeal dated 7 March 2022 which allowed the Appellant's appeal; 2. That the Applicant be granted leave to file and serve its Memorandum of Appeal within 14 days from the date of this Order; 3. Costs of this Application be made the costs of this appeal; and 4. Any other or further order or relief this Honourable Court deems fit and just. ‘The grounds of this Motion and issues that the Applicant shall raise are as contained in the Affidavit in Support affirmed by Julita Binti Tinggal which is filed herein. In summary, the issues which shall be raised are as follows: (a) Whether District Native Court is empowered under Section 16 of the Native Courts Enactment 1992 to invalidate a native certificate;(b) Whether Section 16 of the Native Courts Enactment 1992 can be applied retrospectively to invalidate a native certificate issued under the Native Courts Ordinance; (c) Whether a challenge to a forged native certificate shall be subject to any limitation of time; (d) Whether the minority decision of the High Court Judge in a Native Court of Appeal shall prevail over the majority decision of the Native Court District Chiefs, contrary to Section 24 of the Native Courts Enactment 1992; (e) Whether the limiting words of ‘native law and custom” should be imported into the reading and interpretation of Section 24 of the Natives Court Enactment 1992; and (f) Whether the judgement of the native courts shall be unanimous or that of the majority of its members on issues of native law and custom only. Dated this 2022 Solicitors for the Applicant Deputy/Senior Assistant Registrar Messrs. Ansari & Co Federal Court of Malaysia To: 1. Registrar Court of Appeal Malaysia PutrajayaRespondents’ Solicitors Messrs. Szetu & Co. Advocates & Solicitors F.36-3A, Block F, Floor 3A, KK Times Square, Coastal Highway, 88100 Kota Kinabalu, SabahIN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) APPLICATION NO. BETWEEN JULITA BINT! TINGGAL, «+ APPLICANT AND KWAN NGEN WAH .1ST RESPONDENT ANG YUNG YUNG . 2ND RESPONDENT [Administratix of the Estate of the deceased Kwan Ngen Chung (NRIC No.: 600712-12-5821)] [In the Court of Appeal Malaysia (Appellate Jurisdiction) Civil Appeal No.: S-02(NCvC)(A)-1899-09/2018 Between KWAN NGEN WAH 187 APPELLANT ANG YUNG YUNG 28° APPELLANT [Administratix of the Estate of the deceased Kwan Ngen Chung (NRIC No.: 600712-12-5821)] And JULITA BINT! TINGGAL, RESPONDENT [in the matter of the High Court in Sabah & 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. BKO-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 AND IN THE MATTER OF the appeal to the Native Court of Appeal at Kata 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 Ngeh Wah and Kwan Ngen Chung to the Native Court of Appeal at Kata 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); 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 Sections 3(1)-(4) inclusive of the Interpretation (Definition of Native) Ordinance (Sabah Cap. 64). Between Julita Binti Tinggal Applicant And Kwan Ah Hee 1 RespondentKwan Ngen Wah -..2° Respondent Kwan Ngen Chung 3% Respondent Native Court of Appeal ...4" Respondent [Decided by Puan Supang Lian, the Judge of the High Court in Sabah and Sarawak at Kota Kinabalu on 14" August 2018] AFFIDAVIT IN SUPPORT (Leave to Appeal to the Federal Court) |, JULITA BINTI TINGGAL (NRIC: 590928-12-5242), a Malaysian citizen of full age and having my address at Kg. Sg. Damit, Tuaran, Sabah, do hereby do solemnly and sincerely affirm and state as follows. 1 | am the Applicant in this Motion and have full knowledge of the matters deposed in this Affidavit which are based on my own personal knowledge and from documents in my possession, unless stated otherwise. Where advice is given, it is given by Messrs Ansari & Co (‘my solicitors’). Parties in this Motion 2. | was the Applicant in the High Court judicial review from the decision of the Native Court of Appeal. | am also a native of Sabah. 3. The 3" Respondent in the High Court judicial review did not proceed with the appeal. Nevertheless, for avoidance of doubt, the Respondents in this motion along with the 3" Respondent in the High Court judicial review shall be referred to as the “Kwan Brothers’.Brief Facts 4. One Abdul Hamid Dullih was the registered owner of the said Lands. He had purchased the said Lands from the successful land applicants Thereafter, | purchased the Lands from Abdul Hamid Dull. | then sold the Lands to one Hiew Kon Fah at a purchase price of RM6, 172,000.00. A legal dispute thereafter arises between Hiew Kon Fah and the Kwan Brothers. In the course of the proceedings, the Kwan Brothers raised the issue that they had purchased the Lands from Haji Nur Sikandalin 1992 before the Lands were sold by Abdul Hamid Dullih to myself in 2005, and as such my title over the Lands is defective. The Kwan Brothers during cross-examination at the High Court in the dispute with Hiew Kon Fah admitted that: (a) _ Allhis 4 grandparents (paternal and maternal) were born in China; (6) _ His parents were not born in Sabah; (c) He did not practice any of the native customs; (d) He does not know how to speak Kadazan; (e) When he was born, his father was not a citizen of the colony of North Borneo; and () He was residing in Lahad Datu and not Kg Tanjong Aru, Kota Kinabalu in the 12 years prior to 1979 A copy of the Notes of Proceedings is now produced and marked as “Exhibit- a’. Given the Kwan Brothers’ challenge against my title over the Lands and their admission above, | commenced an action against the Kwan Brothers in the10. 11. 12. 13. Native District Court to, inter alia, seek for a declaration that their native certificates are void ab initio. On 10.5.2016, the Native District Court found that the native certificates are void ab initio and ordered that the said certificates be surrendered and destroyed; A copy of the decision of the Native District Court is now produced and marked as “Exhibit-B”. The Kwan Brothers thereafter appealed to the Native Court of Appeal. The hearing was heard before one High Court Judge and two District Chiefs. The two District Chiefs agreed with the finding of the Native District Court that the native certificates are void for illegality. The High Court Judge delivered and recorded his dissenting minority decision as the final decision of the Native Court of Appeal on 14.7.2017. A copy of the decision of the Native Court of Appeal is now produced and marked as “Exhibit-C”, In light of the above, | therefore filed a judicial review application to review the decision of the Native Court of Appeal. The Judicial Review Application cause papers are now produced herein and marked as “Exhibit-D”, The judicial review application was heard before the Leamed Judicial Commissioner Supang Lian (as she then was) and Her Ladyship found that the majority decision of the panel should be the decision of the Native Court of Appeal. The Judgment of the High Court is now produced and marked as “Exhibit-E”,14. The Kwan Brothers then appealed against the decision of Her Ladyship. The Court of Appeal heard the appeal on 8.10.2021. The appeal was heard before Justices Abdul Karim Bin Abdul Jalil, Ravinthran Paramaguru, Ahmad Zaidi Bin Ibrahim. 15. On 7.3.2022, the Court of Appeal delivered its decision, allowing the Respondents’ appeal thus overturning the High Court's judicial review decision Legal Issues before the Court of Appeal 16. | have been advised by my solicitors that the primary issues argued at the Court of Appeal are as follows: (a) Whether the Native Courts Enactment 1992 applied retrospectively to Provide for the questioning of native certificates issued in the past by the native courts; (6) Whether the Applicant is time-barred from challenging the validity of the native certificates despite the issue of illegality; and (c) Whether the minority decision of the High Court judge should be recorded as the judgment of the Native Court of Appeal notwithstanding Section 24 of the Native Courts Enactment 192. The Decision of the Court of Appeal 17. The Court of Appeal allowed the Respondents’ appeal. 18. | have been advised by my solicitors that the Court of Appeal had not taken into account the following(a) _ that the Kwan Brothers have admitted in court proceedings that they are not natives of Sabah and as such it is evident that the native certificates are tainted with illegality; (b) Section 16 of the Native Courts Enactment 1992 grants wide powers to the present native courts to revise orders made by the native courts under the Native Courts Ordinance; and (c) that Section 24 of the Native Courts Enactment 1992 is clear and unambiguous that the unanimous or majority decision its members all be the decision of the Native Court of Appeal 19. | have been advised by my solicitors and verily believe that the Court of Appeal's decision in allowing the Respondents’ appeal, meant that: (2) a native certificate cannot be challenged after the lapse of 60 days to appeal against the certificate even though it may be obtained through forgery or illegality — this means that the courts would be helpless even in the face of blatant forgery or illegality; (b) the plain and unambiguous provision of Section 24 of the Native Courts Enactment 1992 cannot be read literally despite having no vagueness or uncertainty; (2) Section 16 of the Native Courts Enactment 1992 does not give the native courts the power to revise an order made by the native court. Proposed Questions to the Federal Court 20. | have been advised by my solicitors that there are questions of public importance which have not been decided before and/or a question of importance upon which further argument and a decision of the Federal Court would be of public advantage under Section 96 of the Courts of Judicature Act 194 and that there is a prospect of success 824 22. ‘The questions of law of importance are as follows: (a) (a) (e) Whether District Native Court is empowered under Section 16 of the Native Courts Enactment 1992 to invalidate a native certificate; Whether Section 16 of the Native Courts Enactment 1992 can be applied retrospectively to invalidate a native certificate issued under the Native Courts Ordinance; Whether a challenge to a forged native certificate shall be subject to any limitation of time; Whether the minority decision of the High Court Judge in a Native Court of Appeal shall prevail over the majority decision of the Native Court District Chiefs, contrary to Section 24 of the Native Courts Enactment 1992; Whether the limiting words of “native law and custom’ should be imported into the reading and interpretation of Section 24 of the Natives Court Enactment 1992; and Whether the judgement of the native courts shall be unanimous or that of the majority of its members on issues of native law and custom only. | have been advised by our solicitors that there is a prima facie chance of success if leave is granted on the questions raised at the hearing of this, motion. The questions of law will need to be decided and/or revisited to re- affirm the legal principles of law which the Court of Appeal had ignored and to assist the public and also in the public interest to have these questions resolved and decided,23. _ In this respect, | pray for an order in terms of the application. To an affidavit by one deponent Julita Binti Tinggal ] (NRIC No.: 590928-12-5242) J] “ Affirmed on Ol Apyil , 9072 | At OTA WuNAemLu, SABRH. ] Through the interpretation of J Muhamad Amirul Bin Amin ] This AFFIDAVIT IN SUPPORT (Leave to Appeal to the Federal Court) is filed by Messrs. Ansari & Co., solicitors for the Applicant with an address for service at No. 10-1, 1* Floor, Lorong Lintas Plaza 3, Lintas Plaza Luyang, 88300 Kota Kinabalu Sabah. Tel No.: 088-214826 Fax No.: 088-264826 E-mail: ansariof@yahoo.com.my 10IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) APPLICATION NO. BETWEEN JULITA BINT! TINGGAL «+ APPLICANT. AND KWAN NGEN WAH -1ST RESPONDENT ANG YUNG YUNG «+ 2ND RESPONDENT [Administratix of the Estate of the deceased Kwan Ngen Chung (NRIC Ni (00712-12-5821)] {In the Court of Appeal Malaysia (Appellate Jurisdiction) Civil Appeal No. NCvC)(A)-1899-09/2018 Between KWAN NGEN WAH 18" APPELLANT ANG YUNG YUNG 28° APPELLANT [Administratix of the Estate of the deceased Kwan Ngen Chung (NRIC No.: 600712-12-5821)] And JULITA BINT! TINGGAL ...RESPONDENT [In the matter of the High Court in Sabah & Sarawak at Kota Kinabalu Application for Judicial Review No.: BKI-13NCvC-17/10-2017(HC2)] aIN THE MATTER OF the dissenting single minority decision of the Native Court of Appeal at Kota Kinabalu, Sabah Appeal No. BKO-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 AND IN THE MATTER OF the appeal to the Native Court of Appeal at Kata 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 Ngeh Wah and Kwan Ngen Chung to the Native Court of Appeal at Kata Kinabalu, Sabah by way of Appeal No. BKI-47-5/5-2016; AND INTHE MATTER OF the Native Courts Enactment 1992; AND 2IN THE MATTER OF the Native Courts Ordinance (Sabah Cap. 86); 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 Sections 3(1)-(4) inclusive of the Interpretation (Definition of Native) Ordinance (Sabah Cap. 64). Between Julita Binti Tinggal Applicant And Kwan Ah Hee 1* Respondent 23Kwan Ngen Wah ...2"™ Respondent Kwan Ngen Chung 3" Respondent Native Court of Appeal .4" Respondent [Decided by Puan Supang Lian, the Judge of the High Court in Sabah and Sarawak at Kota Kinabalu on 14" August 2018] CERTIFICATE | hereby certify the documents marked as “Exhibit - A”, “Exxhibit - B”, Exhibit - C”, “Exhibit — D” and “Exhibit - E” are exhibits referred to in the Affidavit-in-Support of Julita Binti Tinggal (NRIC No.: 590928-12- 5242) affirmed before me on the 04" day of April, 2022 Before me, Commisioner for Oath 14