Ayaz Ahmad Bin Mohamed Salleh v 1. ) Abd Rashid Bin Mohd Idris 2. ) KETUA PENGARAH TANAH DAN GALIAN NEGERI KEDAH DARUL AMAN

k-01ncvcw-272-06-2023 Court of Appeal (Mahkamah Rayuan) 20 October 2025 • K-01(NCvC)(W)-272-06/2023 • 17 min read

1 cases cited (0 SG, 1 foreign)

Outcome

This appeal is allowed. The order of the learned Judge dated 29.5.2023 is set aside. In the circumstances, the 2011 Judgment is hereby reinstated.

Quoted verbatim from the judgment of Court of Appeal (Mahkamah Rayuan) (k-01ncvcw-272-06-2023). Read the full judgment on the official Malaysia Courts portal for the complete decision.

Catchwords

allegation of judgment obtained by fraud – Power of Attorney – Memorandum of Transfer – National Land Code 2020 (Act 828) – Malay Reservation Land – Trust – Whether or not transferee is a Malay – Statutory Declaration as evidence for being Malay - Signed before Commissioner for Oaths – allegation of forged documents – s 2 of Kedah Reservations Enactment No. 3 – Definition of Malay – Fresh action to impeach and set aside earlier judgment – positive fraud – actual pre-meditated positive fraud - s 44 of Evidence Act 1950 (Act 56) - Status of Commissioner for Oaths – Office of the Chief Registrar of Federal Court – Sijil Kewarganegaraan – National Registration Department

Practice Areas

Evidence Land Law Constitutional Law

Judges (4)

Ahmad Kamal bin Md. Shahid Coram S. Nantha Balan a/l E.s. Moorthy Coram Utama Wan Ahmad Farid bin Wan Salleh Delivered Wan Ahmad Farid bin Wan Salleh Delivered

Counsel (9)

Gunaseelan & Associates Firm Yohendra Nadarajan Firm Daniel Choo Vern Kai Counsel Appellant Dato' V. Manokaran Counsel Appellant Keshvinjeet Singh Counsel Respondent Kumaradevan Rajadevan Counsel Respondent T. Gunaseelan Counsel Respondent Uma Gunaseelan Counsel Respondent Yohendra Nadarajan Counsel Appellant

Parties (3)

KETUA PENGARAH TANAH DAN GALIAN NEGERI KEDAH DARUL AMAN Respondent Abd Rashid bin Mohd Idris Respondent Ayaz Ahmad bin Mohamed Salleh Appellant

Case Significance

Reaffirms that a concluded judgment can be impeached for fraud only by a fresh action, on fresh evidence, establishing actual pre-meditated positive fraud under section 44 of the Evidence Act 1950 — a demanding threshold that was not met here.

This Court of Appeal decision concerns an attempt to impeach and set aside an earlier High Court judgment on the ground that it had been obtained by fraud. The dispute traces back to a 2007 suit at the Alor Setar High Court between the present appellant and the first respondent over a piece of land at Mukim Air Putih, Daerah Pendang, Kedah, and over parcels of Malay Reservation land. In the 2007 suit the first respondent alleged that the appellant had fraudulently used a power of attorney to transfer land to himself; the appellant counterclaimed for a share of Malay Reservation lands and asserted that he was a Malay for the purposes of the Kedah Reservations Enactment. After a full trial the High Court decided in the appellant's favour in a judgment delivered in 2011, ruling that the transfer was not fraudulent and that the appellant, being a Malay, was entitled to the reservation land. Years later, in a fresh 2017 action, the High Court set aside that entire 2011 judgment, holding it had been obtained by fraud. On appeal, the panel (Nantha Balan, Ahmad Kamal bin Md Shahid and Wan Ahmad Farid bin Wan Salleh JJCA) reviewed the law on impeaching a judgment for fraud, confirming that under section 44 of the Evidence Act 1950 a fresh action may be brought, on fresh evidence, to show that a judgment was obtained by fraud or collusion, but only where there is actual, pre-meditated positive fraud. The court held that no such fraud on the appellant's part had been established — even the first respondent's counsel had conceded the appellant was unaware of the relevant Commissioner for Oaths' status. Finding a manifest error below, the court allowed the appeal, set aside the 2017 order and reinstated the 2011 judgment, fixing costs at RM50,000 here and below, subject to allocatur.

Summary

This appeal arose from a 2017 suit that set aside a 2011 judgment concerning Malay Reservation lands in Kedah on the ground of fraud. The key issue was whether the appellant had committed actual positive fraud regarding his racial identity and whether a Commissioner for Oaths who attested a statutory declaration was validly appointed. The Court of Appeal allowed the appeal, finding no actual pre-meditated positive fraud by the appellant, reinstated the 2011 judgment, and awarded RM50,000 costs.

What was the central legal question in this appeal?

Whether the 2011 High Court judgment could be impeached and set aside on the ground that it had been obtained by fraud, applying section 44 of the Evidence Act 1950 and the requirement of actual, pre-meditated positive fraud shown by a fresh action on fresh evidence.

What did the Court of Appeal decide?

It held that positive fraud had not been established, found a manifest error in the 2017 decision to set aside the 2011 judgment, allowed the appeal, set aside the 2017 order and reinstated the 2011 judgment.