MALAYSIA

IN THE HIGH COURT IN SABAH AND SARAWAK AT SANDAKAN

ORIGINATING SUMMONS NO: S24-25 OF 1999

IN THE MATTER of an application

under Order 89 of the Rules of the High
Court 1980 for an Order for possession
of the landed properties held under CL
085321633, CL 085327180 and CL
085327199 respectively situated at
Luangmanis, Labuk, Sugut, Sandakan,
Sabah, Malaysia.

BETWEEN

NG KON YU ... PLAINTIFF

AND

SAKIM BIN SAIKING ... 1ST DEFENDANT

PAULAI BIN MATIN ... 2ND DEFENDANT
JIBID BIN SAMPAI ... 3RD DEFENDANT
DAMBA BINTI DAMBON (P) ... 4TH DEFENDANT
MASIN BIN AIN ... 5TH DEFENDANT

BEFORE THE HONOURABLE MR JUSTICE DATUK RICHARD

MALANJUM
IN CHAMBERS
LAND LAW: Application for summary order for Recovery of
possession of land - whether Defendants’ possession of land is
trespass

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NATIVE TITLE: Whether the Defendants by virtue of them being in
the said lands allegedly with the tacit approval of the relevant
authorities have acquired native customary rights or licence over the
same

CIVIL PROCEDURE: Whether summary order can be granted or

whether there is an issue to be tried - whether plaintiff’s failure to
comply with the requirement of full disclosure should deprive him of the
remedy under Order 89 of the Rules of the High Court 1980

JUDGMENT

Introduction

Before me is an application (Enclosure 3) by the Plaintiff made

under Order 89 of the Rules of the High Court 1980 (the Rules). The
order sought for is that the Plaintiff should recover possession of the
landed properties known as CL 085327180 (applied under PT.
90080866) (the first piece), CL 085321633 (applied under PT
87081237) (the second piece) and CL 085327199 (applied under PT.
90080863) (the third piece) (collectively referred to herein as the
‘said lands’) all situated at Luangmanis, Labuk Sugut, Sandakan,
Sabah, Malaysia. The reason for the Plaintiff in asking for such an
order is that he is entitled to possession being the registered owner
and that the persons in occupation are there without licence or
consent.

The Defendants are dis puti ng the clai m of the Plaintiff.

Ac cor di ngl y bot h s i des ha ve fil ed s everal affi davit s. For t he
Pl ai nti ff t her e is t he fi rs t af fi davit i n s upport af fi rmed b y t he

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Plaintiff on 06.04.1999 (Plaintiff’s first affidavit). The Defendants
filed their respective affidavits in opposition and all affirmed them on
18.06.1999. For the 1st Defendant it is Enclosure 14 (1st Defendant’s
affidavit), the 2 nd Defendant it is Enclosure 17 (2 nd Defendant’s
affidavit), the 3rd Defendant it is Enclosure 20 (3 rd Defendant’s
affidavit), the 4th Defendant it is Enclosure 23 (4th Defendant’s
affidavit) and the 5th Defendant it is Enclosure 26 (5th Defendant’s
affidavit).

There is also the affidavit in reply from the Plaintiff

affirmed on 25.04.2000 (Enclosure 41) (Plaintiff’s affidavit in
reply).

In the course of the hearing of this case the Plaintiff made an

application (Enclosure 35) under Order 38 rule 13(1) of the Rules for
an order that the Assistant Collector of Land Revenue (ACLR)
Beluran be compelled to come to Court to produce certain
documents. That application was heard and the order granted when
the learned counsel for the Defendants offered no objection. Thus in
this case there was in fact a short hearing of evidence from the
ACLR Beluran and the admission of documents as exhibits.

The Undisputed Facts

It is not in doubt that presently the ownership of the said lands
is now registered under the name of the Plaintiff since 01.09.1998.
It is also not in dispute that the Defendants are in fact in occupation
of the said lands and having built their houses and also cultivated
the same with both short and long terms crops. But the parties have

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differing versions on what led them to the same lands.

The Version Of The Plaintiff

According to the Plaintiff he became the owner of the said

lands in the sequence as follows:

On the 20.06.1995 the Plaintiff purchased two parcels of the

said lands from one Leong Yuk Fong. The Plaintiff
purchased the last piece from one Tsen Kin Wai. For the
purpose of this Judgment these persons from whom the
Plaintiff bought the said lands would be referred to as the
vendors. The first, second and third pieces measure 13.25
acres, 12.18 acres and 12.62 acres respectively. On the same
day of purchase the respective vendors made the Plaintiff
their Attorney.

The Plaintiff disclosed that when he purchased the first piece

it was only on approval stage with the title deed yet to be issued.
As for the second piece it was at the draft title stage. But the third
piece was only at an application stage bearing land application
number PT. 90080863. On 12.09.1996 the registered title for the
second piece was issued while for the first and third pieces the
respective title deeds were only issued on 16.11.1996.

It is the story of the Plaintiff that after he had purchased the

said lands he discovered that there were trespassers on them.
Going by his account the 1 s t Defendant is occupying the first
piece while the 2 nd and 3 r d Defendants are occupying the third
piece. As for the second piece the 4 t h and the 5 t h Defendants
occupy it. The Plaintiff alleged that besides cultivation of crops,
wooden houses have also been constructed on the said lands.

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 In view of the presence of the Defendants the Plaintiff said
that he caused notices to quit to be issued by his solicitors to them.
But that did not bear any result. Hence this present application was
made.

The Version Of The Defendants

Although each of the Defendants filed an affidavit to oppose

the application overall their line of objection is similar. For
convenience I should consider their respective affidavits. But
before doing so I must record here that I find it quite appalling
that there appears to be very little care taken in the preparation of
these affidavits in that four out of five of them make reference
only to the third piece of the said lands. In fact if going by these
affidavits there seems to be either no denial in the allegation of
trespass into the first piece or that there was no entry at all to
begin with. And there is an obvious conflict between the assertion
of the 2 nd Defendant and that of the 3 r d Defendant pertaining to
which piece they have entered although they said that they are
living together. Be that as it may I think I should not penalise
these Defendants who obviously relied on the solicitors for their
professional services. I take it therefore that the assertion of the
Plaintiff as to who occupies which piece of the said lands is
correct. And before going to the respective affidavits it is
common ground of the deponents that their land applications were
made as a group and the leaders of the group were one Kumin bin
Ranggagan and Nicholas Bungalun. It was not therefore surprising

5
that the letters to the relevant authorities were signed by either of
these two persons.

Now, the 1 s t Defendant admits that he is in occupation of the

third piece of the said lands. I think here there is a mistake as the
Plaintiff said that the 1 s t Defendant is occupying the first piece.
Anyway the 1 st Defendant maintains that he is not a trespasser in
that he entered therein by virtue of his wife, Radinah Akun, being
one of the applicants/participants in the State Government
sponsored Small Holders Scheme of Luangmanis, Beluran, Labuk,
Sandakan, Sabah. According to the 1 s t Defendant his wife was
allotted a lot known as Lot 34, Block 2, Phase 2 measuring 14.94
acres. One Sampai Gurotob made the allotment in 1988. Upon the
allotment the 1 st Defendant alleged that he and his wife entered
the area and started planting short-term and long term agricultural
crops therein. It was also averred that his wife submitted her land
application for the lot in 1988. However in the same year the 1 st
Defendant said that they heard that the said lot was alienated to
another. They were angry but the furthest they went was to see a
few politicians for help with no result.

As regards this application it is the stand of the 1 st Defendant

that there are questions to be tried and that the summary application
for an order to evict them is inappropriate. And the reasons given
are several, inter alia, that in view of their entry into the said lot,
applied for it when it was still uncommitted and available and
having cultivated it and raised their family he and his wife should

6
be entitled to claim for customary right over the said lot. And even
if there is no customary right acquired the 1 st Defendant said that
they are licensees as they entered the said lot with the consent of the
Government and thus a lawful entry. And finally the 1 st Defendant
said that he has been advised that there was a failure on the part of
the Plaintiff to comply with rule 3(b) of Order 89 of Rules.

As for the 2 nd Defendant it is his stand that he did not

trespass into the second land. Here again there appears to have
been a mistake as the Plaintiff said that this Defendant occupies
the third piece and not the second piece. Anyway this Defendant
said that he is the cousin of the 3 r d Defendant and lives with him.
And he said that he has been advised that the 3 r d Defendant has
raised triable issues on the claim of the Plaintiff.

It is the averment of the 3 rd Defendant that he came into the

said third piece because he is the son of one Sampai Gurotob who
was one of the many applicants led by the said Kumin Ranggangan
and Nicholas Bundalun in applying for lots under the Small
Holders Scheme. According to the 3 rd Defendant his father had the
area allotted to him measuring 14.89 acres and later became known
as Lot 35, Block 2, Phase 1 since 1976. It was on that same year
that his father entered the said lot to plant crops and built a house
for his family.

As regards the land application made the 3 r d Defendant said

that his father and the other applicants were encouraged to apply
for the lots by the Government at that time. And as such formal

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applications for the lots were made in late 1980 or early 1981. In
1985 his father passed the said lot to him and hence the 3 r d
Defendant continued to live there. But in 1988 he heard that the
said lot was alienated to another person. And as was done by the
1 s t Defendant the 3 r d Defendant also went to see some politicians
for help. Nothing came out of those meetings.

In resisting the application of the Plaintiff the 3 rd Defendant

also relied on the same grounds as canvassed by the 1 st Defendant.
And he went further by saying that the vendor of the said piece only
applied for it in 1990 and obtained the title deed in 1996 while his
father was already in occupation of the same at the time when it was
not yet committed to anyone.

I pose here to note that some portions of what the 3 r d

Defendant has said are hearsay and of no evidential value.

The 4 t h Defendant in her affidavit denied that she had

encroached or trespassed into the third piece. There appears a
mistake here as well in that the 4 t h Defendant could have meant
the second piece. While the 3 r d Defendant was only relating to
what his father did in connection with the piece he has been
occupying this 4 t h Defendant said that she was amongst the many
applicants for the lots under the Small Holders Scheme.
According to her she and the other applicants entered their
respective lots in 1976. Her lot measured an area of 14.76 acres.
Upon entering the said piece she said that she and her husband
(the 5 t h Defendant herein) began cultivating various crops therein.

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Having met the relevant authorities pertaining to their land
applications this Defendant said that their impression was that
they could apply the respective lots and in fact they were
encouraged by the Chief Minister Department through the Natural
Resources Department to do so. It was only on 1988 that they
heard that the lots were being alienated to others. That upset them
and meetings with some politicians did not help.

As with the other Defendants this Defendant also raised the

common reasons for resisting the claim of the Plaintiff.

Finally for the 5 th Defendant he affirmed that he is the

husband of the 4 t h Defendant and thus his occupation of the third
piece (the second piece perhaps) is lawful for the reasons given by
his wife in her affidavit.

In other words the thrust of the case of these Defendants is

that no summary order should be given to the Plaintiff pursuant to
Order 89 as there are triable issues raised requiring a trial proper.
And the issues according to them are (1) whether they have
acquired native customary rights based on the fact that they have
been in occupation of the respective pieces long before the
applications of the former owners/vendors of the same; (2) whether
in the circumstances of this case they should be given the status of
licensees since they were encouraged by the Government to enter
and cultivate their respective areas and (3) whether any relief
should be given to the Plaintiff since there is a failure to comply
with the provision of full disclosure as required under Order 89.

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The Version Of The ACLR

The ACLR, Encik Benedict Asmat (PW1), opted not to affirm

any affidavit and so he was subpoenaed to attend the hearing to
produce some documents and to clarify some of the matters raised
in the respective affidavits filed therein.

He began by saying that he was the Assistant District Officer

cum the Assistant Collector of Land Revenue of Beluran. And he
went on to say that in compliance with the Court order he had
brought a certified copy of the plan of the Sungai Lokan Forest
Reserve wherein the Luangmanis Small Holder Scheme II is found
and delineated in red. With no objection from the learned counsel
for the Defendants that certified copy was tendered, admitted and
marked as Exh. P1.

This witness also said that the said lands had been identified
in Exh. P1 and thus delineated in yellow. And he confirmed that
the area in yellow was once part of the Small Holders Scheme.
However when the Telupid-Sandakan Road was constructed the
area in yellow was excised and reverted into State land.
Unfortunately this witness was unable to remember when that
happened. But he confirmed that the area in yellow had been
alienated and with titles.

As regards the process in the issuance of the titles deeds for

the said lands, PW1 said that notices under section 13 of the
Sabah Land Ordinance were given and exhibited to enable anyone

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to submit any objection. As there was no objection received in
this case the land applications were then processed.

Under cross-examination PW1 said that he was not sure

where those notices were exhibited. But as far as he knew notices
were pasted on the Notice Board of the office. And he said that
there was a possibility that due the said lands being in the remote
area the settlers therein would not have had the chance to see the
notices. However PW1 confirmed that prior to the land
applications of the vendors there were earlier land applications by
one Kumin bin Ranggon. He was unable to say if that Kumin was
the group leader of the Defendants. But PW1 said that he had the
list of participants that applied with Kumin in 1976.

When re-examined PW1 said that the land applications of

Kumin was not approved. But he also said that it was difficult to
say since when Kumin and his group applied for the area the
Surveyor said that the area was under the Small Holders Scheme.
And according to PW1 they appealed to the Natural Resources
Department for approval. The instruction from the Department was
that they should be listed in the List of Small Holders if they
qualified. However when the list came out PW1 opined that they
might not have been included.

PW1 also explained at length the procedure on the issuance

of a notice under section 13 and the need for an area applied for
to be inspected by a Land Inspector and subsequently to make a
report. In this case PW1 said that Roger J. Angalong carried out

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inspection on 22.10.94 for PT 90080864-0866 and PT 90080861-
0863 and thereafter prepared two reports in respect of two pieces
of the said lands. And in those reports it was stated that the
applicants, referring to the vendors, cultivated those lands and
that there was no claim for native customary rights.

When PW1 was further asked he said that he was not sure
who did the cultivation. And he was also not sure whether the Land
Inspector did go to the area or he just depended on the information
supplied by the applicants/vendors. In answer to a further question
PW1 said that the Land Inspector would go for inspection when
told to do so by the ACLR and that occurred when there appeared
to be a problem with a particular land application. In this case PW1
said that on 02.08.94 the Land Utilisation Committee directed the
area to be inspected. That is in respect of two of the land
applications. In the other application PT 87081237 he said that the
Committee supported the application without any instruction to
inspect.

The Issues

The primary issue is whether there is any merit to any of the

assertions by the Defendants and if so what should be the
consequential order to make. To recap the points raised as being
triable issues are:

(1) whether the Defendants by virtue of them being in the

said lands allegedly with the tacit approval of the
relevant authorities have acquired native customary
rights over the same;

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 (2) alternatively, whether they are licensees either on the
basis of their allegation of tacit approval for their
entry into the said lands by the relevant authorities or
due to the passive reaction of the office of the ACLR
Beluran and/or the State Government even after
having being informed or having known, directly or
indirectly, of their entry into the said lands; and
(3) whether the failure of the Plaintiff to comply with the
requirement of full disclosure should deprive him of
the remedy under Order 89.

But before going into the specific issues perhaps I should

examine the scope of Order 89 in term of its application. Where it
is found that there are triable issues raised by a defendant in an
application under this Order the courts usually will not grant
summary judgment to an applicant. And the reason is that in such a
case the issues should be tried by way of viva voce evidence.
Hence Order 89 is appropriate in a plain and obvious case such as
where a defendant is a squatter simplicter.

In the case of Norimah binte Mohamed and Ors v. Bukit

Lenang Development Sdn. Bhd. and other appeals [2000] 3 CLJ
133; [2000] 3 MLJ 129 the Court of Appeal was clear on the
application of this Order when it said this:

“After carefully considering the arguments addressed to us

by counsel, we are satisfied that there is much force in the
submissions advanced on behalf of the appellants. In our
judgment, the issues identified by En Karpal Singh and En
Abdul Razak constitute serious triable issues that are wholly
inappropriate for resolution under the summary jurisdiction
which O. 89 confers.
The position in the instant appeals is adequately covered by
high authority. We refer to the decision of the Supreme
Court in Bohari bin Taib & Ors v. Pengarah Tanah Galian

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Selangor [1991] 1 CLJ 48 (Rep); [1991] 1 MLJ 343, where
it was held the summary procedure under O. 89 is
inapplicable to a case in which arguable issues have been
raised. It is sufficient for us to cite Mohd Azmi SCJ in that
case at p 52:
In our view, the appellants in this particular case have
sufficiently shown by affidavit evidence that they have an
arguable case in that they and some, not all, of the
farmers have occupied the land for three years under
licence and thereafter have remained in occupation with
the continued consent of the state government by virtue of
the 1980 alienation already approved prior to the TOLs.
The learned State Legal Adviser, En Hishamuddin for the
respondent, pointed out that the TOLs and therefore
consent were given only up to 1983. After that no TOL
was issued, thus indicating absence of consent. In our
view, the alleged continued consent of the state
government to their occupation notwithstanding the
expiry of the TOLs, is one of the serious issues to be
tried. The case for the appellants is that they were
already in occupation with consent prior to 1981 and the
grant of TOLs from 1981 to 1983 is merely part of the
chain of events supporting the existence of an approval of
alienation of the lands to them by the state authority
under s. 42 of the National Land Code 1965, and pending
issue of titles under s. 77(2) they are entitled to remain
on the land not as squatters but as of right. The approval
of the state authority as exhibited by the appellants,
would appear to have been made on 4 September 1980,
according to the letter of the Collector of Sabak Bernam
dated 25 October. The opening paragraph of the letter at
p. 95 of the appeal records reads:
“Merujuk kepada perkara tersebut di atas, dimaklumkan
bahawa permohonan tuan/puan ke atas tanah di rancangan
tersebut di atas telah diluluskan oleh Majlis Mesyuarat
Kerajaan Negeri pada 4 September 1980.”
We are therefore of the opinion that there are issues to be
tried in this case which are not suitable to be decided by
affidavit evidence, We accordingly agree that this case
should not be dealt with summarily under O. 89.
Mohamed Azmi SCJ then went on to state at para B-D:

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 ‘In our opinion, for the purpose of summary procedure, a
distinction should be made between squatters simpliciter
who have no rights whatsoever, and occupiers with licence
or consent, and as well as tenants and licensees holding
over. It may be impossible to establish the existence of any
triable issue in the case of bare squatters, but the position
of tenants and licensees holding over, or persons
occupying with implied or expressed consent of the owner
may be different. On the facts, we hold that there are
triable issues on the absence of either licence or consent
as alleged by the respondent. Evidence viva voce is
required not only on the alleged consent of the respondent
to the appellants’ occupation rendering their entry
unlawful, but also on whether the approval of the state
authority to the alienation of the lands to the appellants
and the other occupiers had been given in 1980 under s.
42 of the National Land Code 1965’.” - per Gopal Sri Ram
at page 133.’

In an earlier case of Zaibar Auto (Malaysia) Sdn. Bhd. &

Anor. v. Shell Malaysia Trading Sdn. Bhd. [1996] 4 CLJ 212 his
Lordship Gopal Sri Ram at page 216 said this:

“In order to appreciate the arguments advanced in support

of the appeal, it is necessary to hearken to the words of Rule
1 of Order 89 which is in the following terms:
1. Where a person claims possession of land which he
alleges is occupied solely by a person or persons (not
being a tenant or tenants holding over after the
termination of the tenancy) who entered into or remained
in occupation without his licence or consent or that of
any predecessor in title of his, the proceedings may be
brought by originating summons in accordance with the
provisions of this Order.
The rule has always been read, as it ought to be read, as
applying to squatters, pure and simple. It does not apply to
tenants who are holding over. It does not apply to one who
enters upon land or who remains in occupation with the consent
of the applicant under the Order or any predecessor in title of
such an applicant. It does not apply to persons who are in
occupation under a legitimate expectation of receiving, from

15
 the State Authority, issue documents of title to the portions they
occupy. See, Bohari bin Taib & Ors. v. Pengarah Tanah dan
Galian [1991] 1 CLJ 48 (Rep); [1991] 1 MLJ 343.”

Bearing in mind the scope upon which Order 89 has been given
by our Courts I shall now proceed to examine the points raised on
behalf of the Defendants in resisting the present application of the
Plaintiff.

Issue (1)

The Sabah Land Ordinance Cap 68 (the Ordinance)

recognises the existence of the right of the natives of Sabah as
defined to claim native customary rights over un-alienated land in
Sabah. That is why before any land application is processed there
is a mandatory requirement that a notice be issued so as to notify
any native to come forward to present his or her claim of native
customary right over the land applied. And in the event that there
is a claim and it is determined to be a valid claim such right will be
finalised either with the granting of title deed to the native
claimant or that he or she will be paid monetary compensation in
lieu. But an appearance of a land application is not the only
occasion that can trigger the need for the natives to stake their
claim of native customary right. The Ordinance also provides a
provision whereby the Tuan Yang Terutama may gazette an area as
settlement and those who wish to make claims for native customary
right may do so within a specified period. Thereafter the area left
unclaimed will be categorised as State land and no further claim
for native customary right will be entertained.

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 It is also interesting to note that the Ordinance by way of Rules
made thereunder provides a clear instruction on the mode of service
of notices. This is perhaps to ensure that the targets of the same
know the notices.

For convenience it is perhaps appropriate to reproduce some of

the relevant provisions of the Ordinance and the Rules made
thereunder. Under the Ordinance they are as follows:
“12. Application for State land.
Applications for State land may be made to the Director, or
to the Collector, and shall be substantially in the form of
Schedule III.
13. Enquiry as to native rights.
Upon the receipt of any application for unalienated country
land it shall be the duty of the Collector to publish a notice
calling upon any claimant to native customary rights in such
land who is not yet in possession of a registered documentary
title to make or send in a statement of his claim within a date
to be specified in the notice. If no claim is made the land
shall be dealt with as if no such rights existed.
14. Collector to decide claims.
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.
15. Definition of customary rights.
Native customary rights shall be held to be:-
(a) land possessed by customary tenure;
(b) land planted with fruit trees, when the number of fruit trees
amounts to fifty and upwards to each hectare;
(c) solated fruit trees, and sago, rotan, or other plants of
economic value, that the claimant can prove to the
satisfaction of the Collector were planted or unkempt and
regularly enjoyed by him as his personal property;
(d) grazing land that the claimant agrees to keep stocked with a
sufficient number of cattle or horses to keep down the
undergrowth;

17
 (e) land that has been cultivated or built on within three years;
(f) burial grounds or shrines;
(g) usual rights of way for men or animals from rivers, roads,
or houses to any or all of the above.
16. Procedure when rights established.
(1) Native customary rights established under section 15
shall be dealt with either by money compensation or by a
grant of the land to the claimant and in the latter case a
title shall be issued under Part IV.
(2) Where the Collector decides that native customary rights
established under section 15 shall be dealt with by money
compensation, the affected land together with all
buildings, erections and crops thereon shall vest in the
Government free from all encumbrances and shall be
deemed to have been surrendered by the lawful claimant
thereof upon such decision being made.
65. Customary tenure.
65. “Customary tenure” means the lawful possession of land
by natives either by continuous occupation or cultivation for
three or more consecutive years or by title under this Part or
under the Poll Tax Ordinance*, or Part IV of the Land
Ordinance, 1913.
80. Proclamation of settlement.
80. The Yang di Pertua Negeri may by notification in the
Gazette* and by notices locally promulgated proclaim any area
or district in Sabah for settlement under this Part.
See G.N. 705/1960, 360/1963.
81. Native claims to be sent to Collector.
81. It shall be obligatory on all natives claiming land within the
district or area proclaimed who do not already hold a
documentary title therefor, or who claim other native customary
rights therein, to state their claims to the Collector or his agent
either verbally or in writing within the period stated in the
notification, which period shall not be less than four months
from the date thereof.
82. Collector to register and decide claims.
82. The Collector shall enter in a register all claims submitted
within the period assigned in the notification and being guided
by the conditions laid down in the definitions of customary
tenure and of native customary rights in this Ordinance he shall

18
 record his decision as to the ownership of the land and the
claims to other native customary rights.
83. Compensation or resumption by Government.
83. The Collector may if so directed order that any land, the
claim to which is admitted by him under the preceding sections,
shall be resumed by Government; and in such case he shall
proceed in the manner provided in the Land Acquisition
Ordinance, to determine the amount of compensation to be paid:
Provided that no land held under a documentary title shall be
liable to resumption under this section.
84. Unclaimed land to become State land.
84. All lands which has not been claimed or the claim to which has
been rejected shall become absolutely the property of Government:
Provided that if a claim has been rejected by the Collector, the
claimant may lodge an appeal to the Director in accordance with the
provisions of section 41.”

And under the Land Rules GN 505 of 1930 these are relevant:

Application for State land:

“2.(1) Every application for State land shall be in writing and
shall contain a sketch showing approximately the situation of
the land applied for:
Provided that applications for titles under Part IV may
be made orally to the Collector.
(2) A register of all applications for land shall be kept in
each district by the Collector in the form set out in
Schedule A.
(3) An application shall not be accepted unless the following
fees are paid:-
(a) in the case of an application for land to be held under Part
II or Part III, at least one-quarter of the survey fees
estimated to be payable on the are of land for which
application is made; and in the case of an application for
land to be held under Part IV at least one-sixth of such
fees;
(b) in the case of an application for land to be held under Part
II or Part III on which premium is payable, at least one-
quarter of the premium assessed by the Collector.

19
 (4) No payments made under subrule (3) shall confer any
right whatsoever to the land applied for and acceptance
of any such payment shall not constitute any undertaking
that the application will be approved.
(5) The Collector may cancel any application if the applicant
shall not have signed the title within six months of being
called on to do so, or shall have left the district without
leaving an address or appointing an agent to act on his
behalf, or shall not have accepted within three months of
their being communicated to him, any special conditions
to be imposed.
(6) If the application is refused, any sums paid under subrule
(3) shall be refunded to the applicant.
(7) If the application is withdrawn, the applicant shall be
liable for all expenses incurred by Government in
connection with the application, and with the survey, if
any, of the land applied for.
(8) Any balance of the sums paid by the applicant under
subrule (3) which may still remain after deductions have
been made in accordance with subrule (7), shall be
refunded to the applicant.
(9) When an application has been cancelled by the Collector
under subrule (5) any sums paid by the applicant under
subrule (3) shall be forfeited to Government.

Service of Notices:
8.(1) The service of all notices or other processes issued under
the provisions of the Ordinance or any rules made
thereunder may be effected as follows:-
(a) by delivering to the noticee or his authorised agent a
copy of the notice or by sending a copy by registered post
if the address of the noticee or his agent be known and
there be postal communication with such place;
(b) when the noticee cannot be found and has no agent
empowered to accept service on his behalf service may be
made on any adult member of the family of the noticee
who is residing with him;
Explanation: A servant is not a member of the family
within the meaning of this rule.
(c) when the serving officer delivers a copy of the notice to

20
 the noticee personally, or to his agent, or to an adult
member of the family of the noticee residing with him, he
shall require as an acknowledgement of service endorsed
on the original notice the signature or right thumb mark
of the person to whom the copy is so delivered.
(2) If the person to whom such copy is delivered or tendered
is unwilling or unable to sign the acknowledgement, or if
the serving officer is unable to find any proper person on
whom to effect personal service, the Collector may order
service to be effected by affixing a copy of the document to
be served in a conspicuous position upon the land (if any)
which is affected, or by
(a) affixing a copy thereof upon the house or place of business of the
person to be served if such can be found within Sabah; or
(b) affixing a copy thereof or a notice containing full particulars thereof
at the mosque, market or other common place of resort in the town
or village in which the person to be served usually resides or last
resided.
(3) The Collector or Registrar may also, if he shall see fit,
make an order for substituted service by advertisement
in the Gazette or in any local newspaper.
(4) In cases where notices or other processes have to be
served on illiterate natives or posted in districts which
are mainly illiterate, the Collector or Settlement Officer
shall employ such other methods of publishing the
notice as may seem reasonable.
(5) In each of the above cases the serving officer or
Collector shall enter on the back of the original of the
document to be served a statement of the time, place and
manner or method in which the service or publication
was effected, or why service was not effected, and shall
sign the same.
(6) The officer issuing the notice may require any serving
officer to make oath or affirmation as to the truth of any
such entry made by him.
(7) Every notice or other process issued under this
Ordinance on behalf of any person other than a
Collector or Registrar shall be served at the expense of
that person.
(8) The expense of any notice or other process issued on
behalf of the Collector or Registrar may be treated at

21
 the discretion of the Collector or Registrar as costs in
the case, and may be made recoverable from any of the
parties, if he shall so direct.”

Now in the instant case there is no dispute that the

Defendants or their parents were in the said lands as early as
1976. And in at least two of their correspondences with the
office of the ACLR Beluran they indicated that they had already
entered the said lands and cultivating them. (see: DBD-2A and
DBD-2E of the 4 t h Defendant’s affidavit - Enclosure 23). Yet
nothing was done by the ACLR in compliance with section 164
of the Ordinance. There was also no evidence showing that the
office of the ACLR issued some form of protest against the
occupation of the said lands by the Defendants or their
predecessors at that time. Meanwhile it is not in dispute that
there were land applications made for the said lands by the
Defendants or their predecessors as early as 1976 or thereabout.
In fact the last letter that came from the ACLR office was to
inform the Defendants or their predecessors that their
applications would be brought to a meeting and that they would
be informed of the result in due course. The Defendants said that
that was the last of what they knew of the fate of their/their
predecessors’ applications.

Based on the other correspondences exhibited in Enclosure

23 it is also obvious that those responsible to handle the land
applications did not do their work fairly. They sent the
Defendants/their predecessors on a wild- goose chase. At the same
ti me t here w as no evi de nce t hat t hos e offi cers di d t hei r w or k

22
according to the requirements of the Ordinance or the Rules.
Nothing to indicate that there was a register of land applications
kept as mandated by the Rules. There was also nothing to show
when the land applications of the Defendants or their
predecessors were refused. PW1 could not come with any
information. Indeed he was hesitant to say much of what
happened to the land applications of the Defendants or their
predecessors other than saying that it was difficult for him to say
and that from the record the applications were not approved. It is
to be borne in mind that some of the applications were made as
early as 1976 while the others were in 1980 at the latest. That is
ancient when compared to the land applications of the vendors
that were made only in 1987 for the second piece and 1990 for
the rest of the pieces. These facts demand explanations from the
office of the ACLR Beluran or the officers responsible to handle
land applications at that time. If they did their work according to
the call of service I am certain that this present action would not
have found itself into this Court.

From the tenor of the letters written by the Natural Resources

Department and the office of ACLR Beluran either to the leaders of
the Defendants or their predecessors or to the other Departments,
there was positive indication that the applications would be
processed. There was no caution given that approval was not
guaranteed or that the presence of the Defendants or their
predecessors in the said lands would not be of any advantage in the
process.

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 Another disturbing fact in this matter is that there appears to
be a large area that was applied for by the group at that time. Yet
there was nothing to indicate what happened to the rest of the area.
This fact has a bearing to the status of the Defendants or their
predecessors in relation to the said lands. Were the rest approved
and if so why were the said lands left out?

Accordingly for the forgoing I find it difficult to say that these

Defendants or their predecessors were or are mere squatters
simpliciter. They did not enter the said lands devoid of any reason.
They did so with the view to apply for them and in fact did apply.
And not only did they submit their land applications but also
received replies from the relevant authorities indicating hope to
them. As such even based on the above accounts in relation to Issue
(1) I do not think it can be said that the matter before me is one of a
plain and obvious case suitable for the invocation of Order 89.

Meanwhile there is no dispute that the Defendants or their

predecessors are natives of Sabah as defined. And if indeed their
version as narrated above is correct and that they or their
predecessors have been in the said lands since 1976 there is
therefore definitel y a question of whether they or their
predecessors have acquired native customary right over the same.
No doubt the Plaintiff argued that there was no objection
received after the advertisement of the notices under section 13 of
the Ordinance. But to my mind mere performance of the ritual of
putting up the notices would not rectify the shortcomings in the
handling of the matter and should not cause the obliteration of all

24
rights that might have been acquired by the Defendants or their
predecessors. On the contrary it could be said that the Defendants
or their predecessors had the legitimate expectation that the y
would be issued with title deeds.

From the Rule on service of notices I think it was the intention

of the framer that by all possible means the targets of the notices
should be made aware of them. There is nothing in the Rules to say
that it is sufficient if the notices are pasted in the Notice Board of
the ACLR office. In this case even PW1 acknowledged that it could
be possible that the Defendants or their predecessors did not know
of the notices issued under section 13 of the Ordinance in relation to
the applications of the vendors. Hence, this is another issue that
demands an explanation. If indeed the Defendants were not aware of
the notices then there should be no reason for them to lose their
right to claim for native customary right over the said lands. To
allow that to happen would be a gross violation of the cardinal
principle of natural justice.

As regards the reports that were prepared by the Land

Inspector that should be another reason to say that indeed there
was likely that the Defendants knew nothing of the pending
applications by the vendors. It is quite obvious that the Land
Inspector failed to do his job as required since he reported that
the said lands were cultivated at that time by the vendors. If he
had gone to the area as expected of him he would have found out
the truth. One thing positive that transpired from the reports is
that it confirmed that the said lands were already cultivated at that

25
time. And there was no claim from the Plaintiff that someone else
other than the Defendants or their predecessors were the ones that
did the clearing of the area. In fact there was no denial to the
assertion of the Defendants that it was them or their predecessors
that did the cultivation.

The foregoing facts are also relevant on the issue of whether or

not native customary right has been acquired by the Defendants or
their predecessors in respect of the said lands.

There is no doubt that the Plaintiff is now the registered

owner of the said lands after purchasing them from the vendors.
But at the same time there is no averment from him that he bought
the same in good faith and in complete ignorance of the conditions
therein. It is almost inconceivable that the Plaintiff would not want
to know at least the location and condition of the said lands before
purchasing them. And it is important to note that under the
Ordinance there is no provision for indefeasibility of title unlike
the National Land Code applicable in Peninsula Malaysia or the
Sarawak Land Code. (see: Borneo Housing Mortgage Finance Bhd
v. Time Engineering Bhd. [1996] 2 CLJ 561; [1996] 2 MLJ 12).
Hence, if the approvals of the land applications by the vendors
were secured contrary to law in that the procedure and
requirements were not properly complied with, can it not be said
that the alienation was not in order? Or should the stand be taken
that once a title deed has been issued nothing could be done to
undo any error? These are yet indicators that the issues involved
in this case are not without merits but warrant further deliberation

26
after a full trial. Further, on the assumption that the approval was
given contrary to law, would mere registration of ownership
derived good title that could be passed on? If not then the
Plaintiff might have received nothing from the vendors. These of
course are issues demanding answers that can only be obtained
after a full trial. In fact in the case of Norimah (supra) the Court
of Appeal did not dismiss the claim of the occupants of the land
despite the fact that the applicant was already the registered
owner. And the National Land Code in that case governed the
subject land where there is a provision for indefeasibility of title.

Thus from the foregoing it is clear that on Issue (1) itself

there are issues or sub-issues requiring further enquir y and
hence it is difficult to say that this is a plain and si mple case
which justifies a summar y judgment under Order 89. In Salim
bin Ismail & Lain-Lain v. Lebbey Sdn Bhd (No 2) [1997] 1 CLJ
102; [1997] 2 MLJ 4 his Lordship Ahmad Fairuz JCA (as he
then was) adopted what was said in the Supreme Court Practice
1991 Vol. 1 at p. 1576 which inter alia, states as follows:

“On the other hand, like the default and summary

procedures under O. 13 and O. 14, this order would
normally apply only in virtually uncontested cases or in
clear cases where there is no issue or question to try, ie,
where there is no reasonable doubt as to the claim of the
plaintiff to recover possession of the land or as to wrongful
occupation of the land without licence or consent and
without any right, title or interest thereto. Where the
existence of a serious dispute is apparent to a plaintiff, he
should not use this procedure. If he does, the action may be
struck out (Henderson v. Law [1984] 17 HLR 237, CA)”.

27
Issue (2)

In the event that I am wrong in my conclusion to Issue (1)

above, then for the same reasons as discussed herein I do not think
it is far fetched to say that by remaining silent to the obvious
announcement by the Defendants or their predecessors that they
were entering the said lands entitled the relevant authorities to say
that at all material times they did not know of the entry. Their
silence or passive response would have given the effect of tacit
approval for the entry. As such it would be difficult to say that the
Defendants were and are trespassers and hence squatters
simpliciter. Their continuous presence on the said lands unimpeded
would have clothed them the sense of being allowed or licensed to
be there. And such position would have been strengthened in view
of their land applications and the responses that came from those
responsible on land mattes in Sabah. Surely therefore this is
another point that is highly arguable and should not be cast aside
in favour of a summary order as prayed for by the Plaintiff in this
case.

Issue (3)

In view of the conclusions above I do not intend to deal with

this last point in any great detail. Suffice it to say that on reading the
provision of Order 89 in relation to the other provisions of the Rules
and based on decided cases I am inclined to agree that the alleged
shortcomings on the part of the Plaintiff when making this
application should not be taken as fatal so as to warrant dismissal of
the same in limine.

28
Conclusion

As I agree that there are triable issues involved in this case

it is not therefore a case suitable for summary order as prayed for
by the Plaintiff. I would therefore dismiss this application with
costs to the Defendants to be taxed unless agreed.

Signed
(DATUK RICHARD MALANJUM)
Judge

Date: 3 JULY 2001

Counsel for the Plaintiff: Pn Majnah Abdillah

Messrs Chin Lau Wong & Foo
Advocates & Solicitors
8 th Floor, Wisma Harbour View
P.O. Box 898
90008 Sandakan

Counsel for the Defendants: Mr. Maijol Mahap

Messrs Mahap Jelani & Co
Advocates & Solicitors
No. 82, 2 nd Floor, Block 1
Asia City
P.O. Box 418
88856 Kota Kinabalu

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