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2014 MarsdenLR 2416
COURT OF APPEAL PUTRAJAYA
MADLIS AZID – Appellant
Versus
BOARD OF OFFICERS & ORS – Respondent
Civil Appeal No: S-01-294-07-2012]
The court ruled that under Section 3(3) of the Ordinance, only applicants for Native Certificates have standing to seek judicial review of declarations made by Native Courts.
Headnote:(A) Interpretation (Definition of Native) Ordinance, Cap 64 - Section 3 - Judicial review application by appellant dismissed by High Court, holding that the 1st respondent had no power to review Native Certificate of 3rd respondent - Appellant challenged the validity of Native Certificate issued to 3rd respondent based on allegations of forgery and misrepresentation. (Paras 10, 12, 17, 19, 28)
(B) Locus standi - Determination of an applicant's right to seek review - The court addressed whether the appellant, as a third party, had the standing to challenge a Native Court's declaration under s 3(3) of the Ordinance - Decision reinforced on the basis of exclusivity of the Native Court's jurisdiction to declare Native status and limited nature of review available. (Paras 1, 46, 50)
(C) Interpretation of statutory provisions - Fundamental principles of statutory interpretation applied, emphasizing plain and ordinary meaning - Court underscored restrictions placed by subsection (3) of s 3 on who can seek a review of a Native Court declaration, affirming legislature's intent. (Paras 14, 53, 56)
Findings of Court:
Appeal allowed by majority, stating the appellant is permitted to bring forward the challenge as they demonstrated an interest in the outcome based on the ownership dispute over Native lands.
Result: Appeals allowed with majority opinion. Dissent: Justice Rohana Yusuf disagreed, maintaining the legitimacy of the High Court's dismissal, asserting that the appellant lacked locus standi under s 3(3) of the Ordinance.
| Table of Content |
|---|
| 1. appeal against high court's judicial review decision. (Para 1 , 2) |
| 2. appeal context and facts of the native title dispute. (Para 3 , 7 , 8 , 9) |
| 3. factual background of the applicant's complaints. (Para 5 , 6) |
| 4. arguments around the interpretation of the ordinance. (Para 10) |
[1] This is an appeal by the appellant who was the applicant before the High Court against the decision of YA David Wong Dak Wah J given at Kota Kinabalu High Court on 25 May 2012 dismissing the appellant's application for judicial review against the 1st respondent's decision dated 21 January 2012 which ruled that the 1st respondent has no power to review the Native Certificate issued to and held by 3rd respondent in this appeal.
[2] We heard the appeal on 19 May 2014 and 22 May 2014. We then adjourned the matter for deliberation. We have reached a decision; but it is a split decision. My learned brother Justice Abang Iskandar and I had agreed that this appeal be allowed. However, our learned sister Justice Rohana Yusuf holds a different view as stated in her dissenting judgment. We, the majority, now give our reasons for our decision.
[3] To be noted is that the 3rd respondent is neither a party to the Judicial Review No: BKI-13JR-5/2 (the subject matter of this appeal before the High Court at Kota Kinabalu) nor a party in the proceeding before the 1st respondent's under s 3(3) of the Interpretation (Definition of Native) Ordinance (Sabah Cap 64) ("the Ordinance").
[4] However, in the judicial review proceedings before the High Court, the 3rd respondent was served with the cause papers and opportunity was given to the 3rd respondent's counsel to tender his submissions on the applicant's / appellant's application for judicial review.
[5] The background facts to the judicial review before the High Court and also the review before the 1st respondent under s 3(3) of the Ordinance are as follows.
[6] By a suit (S-21-62-2009), the appellant and 97 others had sued Chua (the 3rd respondent) in respect of a dispute as to the ownership of various parcels of native title land totaling 395.62 acres at Sungai Sugut, Labuk, Sabah (Native Lands). The legal basis of the suit was grounded on misrepresentation, nonest factum and inequality of bargaining power. During the trial of that suit, the 3rd respondent had relied on his Native Certificate (which declared that he is a native) to entitle him to own the Native Lands. Learned counsel for the appellant informed the Court that in view of undisputed case law, (see Datuk Syed Kechik Bin Syed Mohamed v. Government Of Malaysia & Anor, and Joseph Paulus Lantip v. Lian Kee Chu & Ors), the appellant could not challenge the authenticity of the 3rd respondent's Native Certificate in that suit itself and his only revenue was to seek a review before the 1st respondent.
[7] The appellant had referred to the 1st respondent his complaint to have the Native Certificate issued to and held by the 3rd respondent reviewed under s 3(3) of the Ordinance vide a letter dated 16 March 2011. The gist of the complaint was that the Native Certificate issued to and held by the 3rd respondent was either forged or did not exist at all. In his letter the appellant cited correspondences from various public and private sources purportedly stating that the Native Certificate in the possession of the 3rd respondent did not exist as it was never issued by the relevant Native Court, namely, the Native Court of Beluran.
[8] The appellant alleged that the 3rd respondent's Native Certificate was "either forged or did not exist at all" because the 3rd respondent's mother was not one "Mariamah binti Berahim" of Sino-Brunei descent as the 3rd respondent had testified that both his parents are from China.
[9] On 20 January 2012, the 1st respondent rejected the application by the appellant to review the status of the Native Certificate issued to the 3rd respondent in this appeal.
[10] In its written decision delivered on 20 January 2012 in respect of the a
