A will's validity cannot be challenged without a proper cause of action, and claims must be filed within the limitation period.

Lim Hock Leng J:

The Broad Issues, Parties And Dispute

[1] Broadly, the case at hand concerns, inter alia, Orders made by a Native Court and the High Court concerning the estate of a native who died testate, whether one Order is to prevail over the other, and whether the Order of the Native Court may be set aside or attacked in proceedings brought for that purpose.

[2] The case also concerns the role of pleadings and the Statements of Agreed Issues, and the issue whether the will could be impugned notwithstanding the manner in which the alleged vitiating factor of undue influence was pleaded, and the deceased's alleged lack of testamentary capacity.

[3] Additionally, there is the issue whether the Plaintiff's claim is defeated by the plea of limitation by the 1st and 2nd Defendants, notwithstanding that one of the Plaintiff's claims was for declarations.

[4] The Plaintiff is the only child and son of the late Joanes Hoindi Asing @ Hindi ("the deceased").

[5] The deceased had bequeathed a parcel of land held under NT 213101234 ("the Land") to his nephew, the 1st Defendant, under a will made on 26 November 2012.

[6] The deceased passed away on 22 May 2013.

[7] The Land is the subject matter of the dispute.

[8] The Land was sold by the 1st Defendant to the 2nd Defendant pursuant to a sale and purchase agreement dated 18 September 2017. The transfer of the Land was registered on 28 September 2017. The 3rd and 4th Defendants were added as they facilitated both transfers.

[9] The laws in Sabah touching on the issues in this case are the:

(i) Administration of Native and Small Estates Ordinance (Sabah Cap 1);

(ii) Wills Ordinance (Sabah Cap 158); and

(iii) Probate and Administration Ordinance (Sabah Cap 109).

The Plaintiff's Caveats

[10] Long before the dispute started, the Plaintiff had, on 21 December 2009, lodged a caveat over the Land. In Sabah, caveats have a lifespan of 3 years.

[11] On 20 September 2012, the Plaintiff lodged another caveat over the Land on the basis that, inter alia, the deceased had allegedly reported the loss of the title deed whereas he had the title deed in hand, he had cultivated the land, his father was 92 years old and there were parties who had tried to influence his father to sell the land, and he was the heir to the Land.

[12] On 21 December 2012, there was a hearing held by the Assistant Collector of Land Revenue ("the ACLR") who ordered the 2nd caveat to be removed at the instance of his father, the deceased.

[13] The Plaintiff appealed - against the decision removing his caveat - to the Director of Lands and Surveys under Sabah Land Ordinance (Cap 68), ss 13, s 41 of the Land Ordinance (Cap 68).

[14] The Plaintiff's appeal was dismissed by the Deputy Director of Lands and Surveys.

The Conflicting Orders

[15] On 13 August 2013, the Plaintiff obtained an Order from the Mahkamah Anak Negeri Penampang pursuant to the Administration of Native and Small Estates Ordinance . That Order - commonly referred to as the Jadual Tiga - gave him administration and distribution rights over the deceased's estate, in particular, for him to inherit the Land. There is no evidence the deceased's will was produced at the hearing for the Jadual Tiga.

[16] On 10 June 2015, the 1st Defendant was issued a Grant of Probate by the High Court at Kota Kinabalu pursuant to the Probate and Administration Ordinance (Sabah Cap 109) in his favour. The Jadual Tiga was not produced at the hearing.

[17] There are thus 2 conflicting Orders concerning the administration and distribution of the deceased's estate.

[18] Although the Plaintiff had obtained the Jadual Tiga earlier, he was not able to transfer the Land because the title deed was in the hands of the 1st Defendant.

[19] On 17 June 2015, the 1st Defendant applied for leave to take out an application for judicial review to quash the decision of the Native Court in issuing the Jadual Tiga. That application was dismissed.

[20] In due course, the Land Office Penampang acted on the Gran