JUDGMENT

Suleiman Hashim J:

On 9 November 1987 Mr. Ranjah bin Tikoi @ John died. Mr. Tikoi (deceased) was a traffic controller, Jabatan Keretapi Sabah. Deceased left a pension of according to Jabatan Keretapi Sabah RM512.50 p.m., according to Public Services Department Malaysia (Sabah Branch) RM532.50 p.m. There are two claimants to the pension.

(1) Puan Lee Nyuk Wan @ Julia (plaintiff) who says she is the sole widow;

(2) Puan Chin Oi Jin (defendant) says she is the sole widow.

The Public Services Department Malaysia (Sabah Branch) has indicated that the issue of who is the sole widow or as in a case of a polygamous marriage the issue of who are the widows be resolved before the pension can be released to the rightful widow/s as the case may be.

Plaintiff's case

Plaintiff married deceased at the Roman Catholic Church of St. Francis Xavier, Keningau, the marriage solemnised in accordance with the Roman Catholic Church Marriage Rites, registered under No. 28/55 (LNW1) confirmed by the Rev. Father Joseph Samuel @ Thomas, now Resident Priest, The Roman Church of St. Francis Xavier, Keningau, on 19 August 1955. They have six children, ages not given.

Soon after deceased died plaintiff inquired as to the position of the pension and was shocked that deceased had purportedly divorced her, the purported divorce granted by the Native Court Tenom on 16 August 1965, Certificate of Divorce Mahkamah Anak Negeri Tenom No. 40/65 dated 14 December 1987 (LNW3).

That in fact and in law she is the sole widow, the only person entitled to the pension.

Defendants' Case

As in defendant's affidavit-in-oppostion affirmed on 23 August 1993:

7. I began living with the deceased as husband and wife in 1962. On 28 May 1963, I gave birth to our eldest daughter Jane bte Ranjah. Due to our ignorance, we did not cause a registration of her birth to be properly registered with the Registry of Birth. However, in May 1985, when my said eldest daughter applied for a passport, she caused a relevant surat akuan to be made and attested by the relevant people testifying to her particulars of birth. A copy of the Surat Akuan is now produced and shown to me marked "C3".

8. On 12 December 1964, I gave birth to my second daughter with the deceased. A copy of the extract of her birth certificate is now produced and shown to me marked "C4".

9. At all material times, the deceased and I were living in Membakut Railway Station quarters, Membakut.

10. On 10 March 1975, the deceased and I made the relevant "Pengakuan" before the Mahkamah Anak Negeri, Membakut, testifying to the fact that we had been cohabiting since 1962 as husband and wife according to Murut custom and had two children and requested for our marriage to be officially solemnised. The Mahkamah Anak Negeri Membakut accordingly solemnised our marriage and issued the relevant certificate of marriage. A copy of the said "Pengakuan" is now produced and shown to me marked "C5" and a copy of the said certificate is now produced and shown to me marked "C6".

11. In or about the month of October 1987, my late husband, the deceased was hospitalised at the Queen Elizabeth Hospital, Kota Kinabalu. I lived with him since 1962 as husband and wife and he did not have any relationship whatsoever with the plaintiff since leaving her. Even till he was hospitalised, I was the only one who looked after and cared for him. The plaintiff did not even know about his sickness until his death on 9 November 1987. The plaintiff never came to the hospital to visit the deceased while he was hospitalised nor did she attend the funeral service.

12. While being hospitalised, on the advice of my son-in-law, one Mr. Awang Ahmad, the Legal Officer and Secretary of Sabah Development Bank Berhad, I went to Mahkamah Anak, Negeri Tenom to have a copy of the divorce record between the deceased and his ex-wife, the plaintiff, to be properly documented and the relevant certificate issued. A copy of the said certificate of divorce was duly issued by the office of Mahkamah