[2023] 1 LNS 498 Legal Network Series

MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK
AT SANDAKAN
[CIVIL APPEAL NO. SDK-12BNCvC-5/10-2022]

BETWEEN

MIHRAB KAGIAU
(NRIC NO. 731211-12-5671) … 1 ST APPELLANT

HATIJAH KAGIAU
(NRIC NO. 770422-12-5876) … 2 ND APPELLANT

AND

KANIDI JAMPI
(NRIC NO. 750808-12-5396) … RESPONDENT

[In the matter of the Sessions Court of Sabah and Sarawak at

Sandakan Suit No. SDK-A52NCvC-9/6-2020

Between

Kanidi Jampi
(NRIC No. 750808-12-5396) … Plaintiff

And

Mihrab Kagiau
(NRIC No. 731211-12-5671) … 1 st Defendant

Hatijah Kagiau
(NRIC No. 770422-12-5876) … 2 nd Defendant]

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BEFORE THE HONOURABLE HIGH COURT JUDGE

JUSTICE CELESTINA STUEL GALID

JUDGMENT

Introduction

[1] This was an appeal by the 1 st and 2 nd Defendants (collectively

referred to as “the Defendants”) against the decision of the
Sessions Court in allowing the Plaintiff ’s claim and dismissing
the Defendants’ counterclaim with costs of RM20,000.00.

The Plaintiff’s claim

[2] The Plaintiff was the registered owner of the land held under
Native Title No. 083130581 measuring 3.815 hectares situated at
Kg. Nangoh in the District of Beluran, Sabah (“the Land”) and
was so since 22.11.2016.

[3] The Plaintiff claimed that the Defendants had trespassed on the
Land by constructing buildings thereon including business
premises such as a restaurant, mechanical workshop, spare parts
shop, a sundry shop and so forth, all without the consent of the
Plaintiff. Despite his notice of demand dated 24.05.2020, the
Defendants have continued to trespass and carry out the
activities on the Land.

[4] The Plaintiff, inter alia, claimed for a declaration that he was
entitled to vacant possession of the Land and prayed for an order
that the Defendants deliver vacant possession of the Land to the
Plaintiff within 14 days from the date of the judgment.

The Defendants’ defence and counterclaim

[5] The Defendants denied that they were trespassers on the ground
that prior to the issuance of the title deed to the Land, the
Plaintiff’s late father, Jampi bin Kampila (“Jampi”) and their

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late mother, Sitti Binti Harun (“Sitti”) had entered into an

agreement to sell 13.5 acres out of the Land for the
consideration sum of RM27,000.00. Thereafter, vacant
possession was given to Sitti.

[6] The Defendants further pleaded that before her passing on

18.10.2015, Sitti had bequeathed the Land to her 6 children
including the Defendants. The Defendants averred that the
agreement between Jampi and Sitti was binding on the Plaintif f.

[7] The Defendants admitted to cultivating, developing and

maintaining the Land and operating businesses thereon from
2006 until 2015 and that all these were without any objections
from the Plaintiff.

[8] The Defendants claimed that they had on 24.10.20 19 entered

into an agreement with one Golden Pump Sdn Bhd to operate
and for the supply of portable container system ( “PCS”) fuel
station on the Land. However, due to the Plaintiff ’s complaint
and interference with the relevant authorities, their application
to develop and establish a PCS fuel station on the Land was
rejected resulting in them suffering loss and damages.

[9] The Defendants, inter alia, prayed for general damages to be

assessed and a declaration that the Defendants were legal and
beneficial owners of the Land by virtue of their ‘Native
Customary Rights’ or ‘Customary Tenure’.

This Court’s decision

Whether the Defendants had trespassed on the Land

[10] There was no dispute that the Plaintiff was the registered owner
of the Land. This was based on the fact that the title deed was
one of the documents in the “Common Agreed Bundle of
Documents – Agreed as to both contents and authenticity” which

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was a Part A document under Order 34 rule 2(2)(d) of the Rules

of Court 2012 (“ROC 2012”).

[11] There was also no dispute that the Plaintiff had locus standi to
institute the action. In any event, as the registered land owner,
the Plaintiff was entitled to possession and was therefore
entitled to sue for trespass – see Mohamed Said v. Fatimah
[1962] 1 MLJ 328; Senik v. Hassan & anor [1963] 1 LNS 120
and Tenaga Nasional Bhd v. Bukit Lenang Development Sdn Bhd
[2019] 1 MLJ 1.

[12] The Defendants did not dispute that they were in occupation of
the Land – they had admitted to having constructed buildings,
cultivated and conducted businesses thereon. This was expressly
pleaded in paragraph 12 of their statement of defence and in the
Defendants’ own testimonies during the trial. Thus, the only
question to be determined was whether the Defendants were
justified to be on the Land based on their pleaded defence.

[13] The Defendants have premised their rights to be on the Land on

an alleged sale and purchase agreement between Jampi and Sitti.
They had referred to the following documents as the basis for
their assertion:

(i) A handwritten letter signed by Jampi and Sitti dated

12.03.2000;

(ii) A ‘Borang Akuan’ or statutory declaration affirmed by

Jampi on 17.04.2000;

(iii) A ‘Surat Kenyataan’ by Jampi dated 17.04.2000; and

(iv) A ‘Surat Wasiat’ by Sitti dated 01.08.2015.

[14] These documents were part of the documents filed under

“Disputed Bundle of Documents” which was marked by the
learned Sessions Court Judge (“LSCJ”) as Bundle D. The status

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of the documents therein were stated as “disputed as to both

contents and authenticity” which would have made them Part C
documents under Order 34 rule 2(2)(e)(ii) of the ROC 2012. A
copy of the ‘Surat Kenyataan’ by Jampi dated 17.04.2000 was
also produced in a bundle titled “1 st and 2 nd Defendants’
Supplementary Bundle of Documents No. 5” which was marked
by the Sessions Court as Bundle I.

[15] Although referred to in the Defendants’ witness statements, my

scrutiny of the Notes of Proceeding (“NOP”) could not find any
recording of the eventual tendering and marking of these
documents as individual exhibits at the trial. When queried by
this Court, learned counsel for the Defendants also confirmed
that they were not.

[16] What then was the effect of the Defendants’ failure to have these
documents admitted as exhibits?

[17] This Court needed only to refer to Court of Appeal case of Lee
Chye Yen & Anor (t/a ‘Ebiz Solution Network’) v. EoneNet Com
Sdn Bhd [2014] 4 MLJ 595 where the court opined:

“[19] This is what actually happened in the present case

where the said statutory declaration as well as the copy of
the copyright works annexed thereto were only placed in
Part C of the bundles of documents. (Part C contains
documents where the authenticity and the contents of the
documents are disputed and not agreed upon by the
parties). Surprisingly enough, those documents were not
even tendered and produced in court when the maker or
deponent (‘PW1’) gave evidence in court. They remained
as disputed documents in Part C of the bundle of
documents until the end of the trial.

...

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[25] The original or true copy of the copyright works must

form part of evidence during trial. By leaving the
documents in Part C of the bundles of documents as
disputed documents and not produced in court during trial,
the documents are not in evidence. It is insufficient just to
make the documents available for inspection throughout
the trial as suggested by the learned judge in her grounds
of judgment. The documents must be properly tendered
and produced as admissible evidence in court during tr ial.”

[18] It is also insufficient to have the disputed document marked as

an “ID” without having it admitted as an exhibit – see the
Federal Court case of UEM Group Bhd v. Genisys Integrated
Engineers Pte Ltd & Anor [2010] 9 CLJ 785. In the present case,
the documents being relied on by the Defendants were not even
marked as “ID” documents.

[19] Although the Defendants’ witnesses did give oral evidence on

these documents, however, without these documents being
properly before the court, there was no support for their
testimonies. The Defendants’ oral testimonies alone were
insufficient to discharge their evidential burden. The resulting
consequence of the failure to have the documents properly
marked as exhibits meant that there was nothing before the
Sessions Court and this Court supporting the Defendants’ claim
of their alleged interest in the Land.

[20] The Plaintiff would have been entitled to judgment of his claim
by this ground alone. As noted earlier, there was no question
that the Defendants were occupying the Land which was
registered in the Plaintiff’s name since 2016. Even if it could be
argued that Jampi and (by extension) the Plaintiff had allowed
the Defendants to be on the Land since the year 2000, by his two
letters dated 14.08.2019, the Plaintiff had clearly indicated his
intention for the Defendants to vacate the Land. Any permission

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or consent which the Defendants could be said to have relied on

had been withdrawn by the Plaintiff through the said letters. As
the registered owner, the Plaintiff was entitled in law to do so.

[21] For the reasons set out below, this Court was of the view that
even if the Court was to consider the said documents as the basis
for the Defendants’ alleged rights on the Land, their defence
would still not afford an answer to the Plaintiff’s claim.

Could the Defendants’ alleged rights over the Land prevail over the
Plaintiff’s?

[22] To recap, the whole basis for the Defendants to assert that they
had rights over the Land was the alleged sale by Jampi to Sitti.
In addition, they claimed to have been on the Land since the
year 2000 and that they had cultivated and developed the Land.
This was the further basis for the Defendants ’ counterclaim
namely for a declaration that they had acquired “Native
Customary Rights” (“NCR”) or “Customary Tenure” over the
Land.

[23] The NCR issue may be immediately dealt with as the law on this
issue is settled. The civil court does not have original
jurisdiction to hear and or to determine NCR claims – Darinsok
Pangiran Apan & Ors v. Hap Seng Consolidated Bhd & Ors
[2011] 6 CLJ 733. The jurisdiction lies before the Collector
under section 14 of the Sabah Land Ordinance (“the Ordinance”)
which reads:

“Claims to native customary rights shall be taken down in

writing by the headman or by the Collector, and shall be
decided by the Collector.”

[24] Under the scheme of the Ordinance, a decision by the Collector

under section 14 is appealable to the Director of Lands and
Surveys Department and thereafter to the High Court under

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section 41 of the Ordinance. This scheme bars the High Court

from exercising an original jurisdiction, leaving it only an
appellate jurisdiction – see Tio Chee Hing v. United Overseas
Bank (Malaysia) Bhd [2013] 2 CLJ 910.

[25] The Defendants’ NCR claim was therefore a non-starter.

[26] As regards the alleged rights flowing from the alleged sale of
the Land from Jampi to Sitti, it must first be remembered that at
the time of the alleged sale in the year 2000, Jampi only had a
land application over the Land. It was not in dispute that the
title deed was only registered on 09.11.2016.

[27] While the law recognizes rights of parties to a sale and purchase
agreement over land involving land applications, t he recognition
is only as regards their contractual rights against one another –
see Raymond Sung Kok Loong v. Dg. Pindatan Bt Pg Dahamban
& Ors & another case [2011] 1 LNS 1379; Besharapan Sdn Bhd
& Ors v. Agroco Plantation Sdn Bhd &. Anor [2007] 1 MLJ 101.
It does not extend to ensuring the eventual alienation or issuance
of the title deed to the purchaser as ultimately it is the Director
of Lands of Surveys Department who has discretion to alienate
land under section 9 of the Ordinance. This is evident in a long
line of cases dealing with this provision. In Lim Fong Tsin &
Ors v. The Assistant Collector of Land Revenue & Ors [1997]
MLJU 484, for instance, it was held that the Director was not
bound by the acts or representations by the Assistant Collector
of Land Revenue made to the plaintiffs who were claiming under
land applications. The Director maintains his discretion even
though the plaintiff may have been issued with an offer to
alienate the land and paid the premium – see Workon Sdn Bhd v.
The Director of Lands & Surveys, Sabah [1999] 4 MLJ 177, The
State Government of Sabah & Ors v. Clarence Chiuh Ken Loong
& Ors [2017] 3 MLJ 127. In the present case, the Land was

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alienated to the Plaintiff as Jampi’s beneficiary pursuant to the

Jadual Tiga issued in his favour.

[28] If at all, the rights of the Defendants were merely that of Sitti ’s
beneficiaries against Jampi or his estate over the alleged sale
and purchase of the Land and for the specific performanc e
thereof. However, there were a few hurdles related to such an
action which the Defendants would have failed to overcome in
any event.

[29] For one, the Defendants merely relied on the ‘Surat Wasiat’
dated 01.08.2015 but there was no evidence led that the said will
was subsequently proved in the Syariah Court in accordance
with section 11(3)(b)(v) of the Syariah Court Enactment 2004.

[30] Secondly, there was no claim filed by the Defendants whether in

their capacity as Sitti’s beneficiaries and or administrators under
the ‘Surat Wasiat’ dated 01.08.2015 against the Plaintiff and or
Jampi’s estate. In the Plaintiff’s claim, the Defendants were
sued as individuals and they had filed their defence and
counterclaim in the capacity that they were sued by the Pla intiff.

[31] Thirdly, it was apparent from the prayers in the counterclaim

that the Defendants were not seeking for the specific
performance of the alleged sale and purchase agreement between
Jampi and Sitti but to assert their alleged NCR cla ims which as
discussed earlier, was bound to fail for the civil court’s lack of
jurisdiction.

Whether this Court was precluded from considering the above issues?

[32] This Court was very much cognizant that the issues discussed
above were not raised in the court below and or by the parties
themselves in this appeal. Notwiths tanding that this was so, it is
trite that an appeal before the High Court is by way of re -
hearing – see Order 55 rule 2 of the ROC 2012. This Court was

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therefore entitled to make its own analysis an d assessment of the

pleadings and all the evidence as contained in the record of
appeal.

[33] In my considered view, in so doing and sitting as an appellate

court, this Court could not but first consider whether the
evidence relied on by the parties had been properly admitted as
evidence. As discussed above, having failed to exhibit the
documents they relied on, there was no support for the
Defendants’ defence against the Plaintiffs’ claim. In addition,
this Court was bound to consider and give effect to the
applicable law as against the evidence led by the parties. The
Defendants’ purported interest over the Land arising from the
sale and purchase agreement between Jampi and Sitti was at
best, contractual as against Jampi and or his estate. Further,
their NCR claim was wrongly instituted the civil court.

Conclusion

[34] For all the above reasons, I found no merits in the Defendants ’
appeal against the grant of the Plaintiff’s claim and dismissal of
their counterclaim, albeit the LSCJ ’s decision was premised on
different grounds.

[35] In the circumstances, I dismissed the appeal with costs of

RM20,000.00 here and below subject to allocatur.

Dated: 27 FEBRUARY 2023

(CELESTINA STUEL GALID)

Judge
High Court Sandakan

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Date of Grounds of Decision: 27.02.2023

Date of Delivery of Decision: 10.02.2023

Counsel:

For the appellants - Kimberly Ye; M/s Ram Singh Harbans & Co

For the respondent - Elton John; M/s FT Ahmad & Co

Notice: This copy of the Judgment is subject to editorial revision.

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