MAY 11 — The following facts appeared in the judgment of Lord President Suffian in the case of Dato Menteri Othman Bin Baginda & Anor v Dato Ombi Syed Alwi Bin Syed Idrus [1981].
On November 20, 1979, when the 14th Undang of the luak of Jelebu died, his successor needed to be, in the words of Clause (1) of Article 14 (XIV) of the State Constitution, a person “lawfully elected in accordance with the custom of [his luak]”. Until then, in accordance with the adat (custom) and constitution of the luak, Dato Menteri Othman bin Baginda (the First Defendant) became Acting Undang. The adat of the luak bound him to instruct Dato Ombi Syed Alwi bin Syed Idrus (the Plaintiff) one of the Dato Lembaga (Tribal Chiefs) of the luak to investigate and nominate candidates, from amongst whom a suitable person would be elected as successor to the deceased Undang.
On December 4, the Dato Menteri received a nomination from Kecik bin Kiman, Dato Raja Diraja or Buapak from Waris Sarin, nominating Musa bin Wahab, P.J.K. (the Second Defendant) as a candidate. On receipt of the nomination, the First Defendant directed the Plaintiff to investigate into Musa’s background and qualifications and include his name in the list of candidates.
On December 14, the First Defendant received a letter from the Plaintiff listing three possible candidates: namely, Syed Zin bin Syed Hussein, Syed Sulong bin Syed Chik, and Nordin bin Ahmad. The Second Defendant’s name was not on the list.
The First Defendant claimed that it was his duty under the law, custom and constitution of the luak to see that the nomination of the Second Defendant be given due consideration, and that the Plaintiff had failed in his duty as Dato Ombi by not considering the Second Defendant’s eligibility as a candidate under the rules of pesaka (succession).
The Plaintiff called a special meeting of the Tribal Chiefs of the luak on December 24 to discuss the matter. On December 31, another special meeting of the Tribal Chiefs was held which was attended by eight of them.
The First Defendant alleged that there was no single candidate acceptable to the eight Tribal Chiefs, whereupon it was his duty under the adat, custom and constitution of the luak to choose the new Undang.
The First Defendant personally investigated into the background and qualifications of all the three candidates submitted by the Plaintiff and into those of the Second Defendant. He concluded that (i) none of the three candidates was eligible; (ii) only the Second Defendant was a fit and proper person to be appointed the new Undang; (iii) there was no reason why the Second Defendant should not be appointed; and (iv) in failing to take into account the Second Defendant’s eligibility, the Plaintiff had failed to carry out his duty as Dato Ombi.
Subsequently on February 4, 1980, the First Defendant) proclaimed the appointment of the Second Defendant as the new Undang of the luak of Jelebu in accordance with the adat, custom and constitution of the luak.
Seventeen days later the Plaintiff filed a suit in the Seremban High Court against the two Defendants, alleging that the Second Defendant was not a candidate as Undang, was not qualified for it under the adat, custom and constitution of the luak, that his appointment was not approved by the Plaintiff and six other Tribal Chiefs of the luak. Accordingly, the Plaintiff asked the High Court to declare that the purported appointment by the First Defendant of the Second Defendant as the new Undang was invalid as being contrary to the adat, custom and constitution of the luak of Jelebu.
In their defence, the two Defendants maintained that the appointment was valid according to the adat, custom and constitution of the luak. Secondly, they contended that the court had no jurisdiction to entertain the action. Thirdly, the Second Defendant for his part alone contended that as the lawfully elected Undang he was immune from being sued in his personal capacity.
On March 24, the two Defendants applied for an order that the Plaintiff’s claim be struck out on the ground that the court had no jurisdiction because the dispute involved a question of adat and custom of Malays in the luak and, in the case of the Second Defendant, on the further ground that under the State Constitution he as Ruling Chief enjoyed legal immunity in his personal capacity.
These contentions were hotly contested. In the event, the learned judge (Federal Court Judge Abdul Hamid, sitting in the High Court) dismissed the application, holding that the court had jurisdiction to entertain the action and that the Second Defendant did not enjoy legal immunity.
The two Defendants appealed to the Federal Court.
The apex court held, by a majority (Lord President Suffian dissenting) as follows:
(1) the Dewan Keadilan dan Undang (DKU) was given power under the State Constitution to advise on matters relating to Malay custom and as the DKU in this case had blessed the appointment of the Second Defendant as the Undang of Jelebu. The court should not attempt to usurp the function of the Dewan, which was a more suitable forum for discharging that function.
(2) The court should decline jurisdiction on the ground that it was forum non conveniens (Latin for an inconvenient court) and that there was another body which was more appropriate and which had been given power under the State Constitution to decide the matter.
(3) The DKU, having sat and deliberated upon the matter and finally given its ruling, the matter should have ended there.
Eighteen years later, in the case of Dato’ Laxamana Dato’ Mokhtar Bin Dato’ Kelana Maamor & Ors v Lembaga Adat Istiadat Luak Sg Ujong [1998], when a similar succession issue as Undang of the luak of Sungei Ujong came before the Melaka High Court, the learned judge, Justice Suriyadi (as he then was) referred to Dato Menteri Othman case and advised the four Plaintiffs before him as follows:
(1) there were sufficient authorities to show that in matters of this nature – that is, customary succession matters – the civil court was not the appropriate body to resolve it.
(2) The High Court was a forum non conveniens.
The gist of the above is this: when the DKU has blessed the appointment of an Undang, it is not for the courts to usurp the function of the DKU. The DKU is a far more suitable forum.
The DKU is the appropriate body to decide on the appointment of an Undang.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
