JUDGMENT

Wan Ahmad Farid Wan Salleh CJ:

The Factual Background

[1] This appeal emanates from the decision of the Alor Setar High Court dated 29 May 2023 in Suit No KA-22NCVC-77-09-2017 ("the 2017 Suit"). In the 2017 Suit, the learned Judge had set aside the entire Judgment dated 1 November 2011 in Suit No 21 February 2007 ("the 2007 Suit"), which involved the same parties on the ground, inter alia, that the 2011 Judgment was obtained by fraud.

[2] The brief facts of the case are as follows.

The 2007 Suit

[3] The 1st Respondent herein, Abd Rashid bin Mohd Idris, is the plaintiff in the 2007 Suit. In the 2007 Suit, Rashid's pleaded case was ("Rashid") that he had given a Power of Attorney ("PA") to the appellant, Ayaz Ahmad ("Ayaz"). According to Rashid, Ayaz had fraudulently used the PA to transfer unto himself that piece of land known as HS(D) 2/94 Lot 3014, Mukim Air Putih, Daerah Pendang, Kedah.

[4] At the High Court , Rashid sought inter alia, to set aside Ayaz's registration of the Air Putih Land and a declaration that Rashid is the legally registered owner of the same. As a consequential order, Rashid also sought for the registrar to re-register his name as the legal owner of the Air Putih Land.

[5] Ayaz's defence to the claim is that the transfer of the Air Putih Land to himself was lawful. It is Ayaz's case that the transfer was done pursuant to an arrangement made between himself and Rashid via a letter dated 12 March 1981. In any event, the consideration for transfer was fully paid by Ayaz.

[6] In the 2007 Suit, Ayaz also filed a counterclaim against Rashid inter alia for 50% ownership of 21 pieces of Malay Reservation lands which were registered in Rashid's name. Ayaz also sought for a declaration that Rashid was holding another six pieces of Malay Reservation lands on trust for him.

[7] In the 2007 Suit, Rashid's main defence against Ayaz's counterclaim is that Ayaz was not a Malay and therefore not entitled to ownership of Malay Reserve land.

[8] At the end of a full trial, the Alor Setar High Court decided in favour of Ayaz. The decision, which was delivered on 1 November 2011 ("2011 Judgment"), inter alia, ruled that the use of the PA by Ayaz to transfer the Air Putih Land to himself was not fraudulent. In view of the finding, Rashid's claim was dismissed.

[9] On Ayaz's counterclaim, the learned Judicial Commissioner ("JC") held that Ayaz, being a Malay, was entitled to the 50% ownership of the 21 pieces of Malay Reserve lands. The learned JC further found that Rashid held the six pieces of Malay Reserve lands on trust for Ayaz.

[10] In her grounds of judgment, the learned judicial commissioner inter alia, made the following findings:

(a) Ayaz was not acting in excess of the PA. According to the learned Judicial Commissioner, cl 23 of the PA empowered Ayaz to execute any conveyance deed for the purpose of dealing with the lands registered in Rashid's name and referred thereto in the PA which included the Air Putih Land.

(b) Rashid had not proven fraud or the use of a void instrument in the transfer of the Air Putih Land by Ayaz unto himself.

(c) There was sufficient evidence at the trial that Ayaz was a Malay. According to Ayaz, he only knew much later that Basah binti Morad, a Malay, was his mother. This fact was confirmed by Basah's statutory declaration ("SD") dated 15 February 1987 and the evidence of Ausna binti Salleh, DW3. There was also evidence by Ayaz that he had previously purchased Malay reserved land Lot No 1862 ASPK 13101 Mukim Kubang Pasu, Kedah.

(d) As to the status of Ayaz as a Malay, the learned Judicial Commissioner made the following remarks where D2 refers to Ayaz:

As D2 is a Malay within the meaning of the Federal Constitution, he can hold Malay reserved land as in art 89(6) "Malay reservation" means land to be reserved for alienation to Malays and "Malay" is defined to include any person who under the law of the State in which he is resident, is treated as Malay for the purpose of the reservation of lan