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HIGH COURT MALAYA SHAH ALAM
NESTCITY PROPERTY SDN BHD – Appellant
Versus
PENGHUNI-PENGHUNI ATAS TANAH / SESIAPA YANG MENDUDUKI DI ATAS TANAH YAN.... – Respondent
[Originating Summons No: BA-24NCvC-2111-10/2023]
Key Points: - The case concerns a summary order for possession of land under Order 89 of the Rules of Court 2012, where the registered proprietor seeks possession without compensation from occupiers claiming ownership. (!) (!) - Occupiers’ claims of beneficial ownership or equity do not confer registrable interests or rights to compensation against the registered proprietor under the National Land Code 1965. (!) (!) - The court held that occupiers occupying without licence or consent have no enforceable rights against the registered proprietor; possession can be recovered with a summary order and costs against occupiers. (!) (!) - The sale and purchase of undivided shares in land cannot transfer registrable ownership; at best, occupiers may hold a license, which is personal and not enforceable against third parties. (!) (!) - Equitable estoppel or licenses with equity do not run with the land under Malaysian land law; the owner’s indefeasible title under the National Land Code prevails. (!) (!) (!) - Private caveats by occupiers were considered but did not defeat the registered proprietor’s possession rights; the landlord’s title remains indefeasible. (!) (!) - The origining summons proceeded as uncontested where most occupiers settled; remaining occupiers’ opposition was resolved in favor of the owner. (!) (!) (!)
Introduction
[1] The Originating Summons in this action is for a summary order for possession of the land held under Hakmilik GM 5231, Lot 788, Mukim Kapar, Daerah Klang, Selangor Darul Ehsan and with an address at Lot 788, Taman Karuppiah, Padang Jawa, 40200 Shah Alam, Selangor Darul Ehsan ("Land").
[2] By the time the Originating Summons was heard, all but a handful of the Defendants had entered into settlement with the Plaintiff and the registered proprietor of the Land and Consent Judgments were entered accordingly.
[3] The 5th Defendant was represented by solicitors who had a pending application to discharge themselves for want of instructions. He had neither settled with the Plaintiff nor did his solicitors offer any submissions at the hearing. The 1st Defendant refers to all other unidentified and unrepresented occupiers on the Land.
[4] The 3 Defendants who actively opposed the Originating Summons were (collectively, the "Occupiers")
(a) the 8th and 9th Defendants, represented by the 9th Defendant who is the daughter and administrator of the estate of the 8th Defendant (deceased); and
(b) the 29th Defendant, represented by solicitors who on the morning of the hearing, reported that they had been discharged by the 29th Defendant who changed her mind about settling with the Plaintiff.
[5] I allowed the Originating Summons after hearing submissions from the 9th Defendant in person and counsel for the 29th Defendant and after giving the matter anxious consideration. These are my reasons.
Background Facts
[6] The registered proprietor of the Land is one Ching Teck Kee ("Owner"). On 23 May 2016, he granted a Power of Attorney to the Plaintiff to take all necessary action for an intended development of the Land. This included the power to warn off and prohibit and if necessary proceed against all trespassers including squatters occupying the Land.
[7] The Owner had acquired the Land with vacant possession from one Saviournathan A/L M.R. Sengol in a sale and purchase agreement dated 25 March 2010 for RM700,000.00. Title was duly transferred at the land office registry under Presentation No: 3467/2010 on 21 April 2010.
[8] No caveats or restrictions prevented that transfer even though it is not disputable that there were clearly occupiers on the Land at the time of the purchase. On 4 September 2023, a notice was issued by the Plaintiff to all occupiers of the Land identified as the named Defendants to quit and vacate the Land within 30 days.
Issues For Determination
[9] As the registered proprietor, the Owner through the Plaintiff as his lawful attorney, claimed possession of the Land under O 89 of the Rules of Court 2012 which provides:
"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."
[10] The only issue for determination in this action is whether the Plaintiff is entitled to a summary order for possession of the Land without paying compensation to the Occupiers who had "entered into or remained in occupation without his licence or consent or that of any predecessor in title of his."
[11] The principles in respect of O 89 of the Rules of Court 2012 are trite. In the decision of Bohari Taib & Ors v. Pengarah Tanah & Galian Selangor 1990 MarsdenLR 253 ; 1991 MarsdenLR 892 ; , Mohamed Azmi SCJ in delivering the judgment of the Supreme Court, held that the procedure is:
"... summary, simple and speedy, ie it is intended to operate without a plenary trial involving the oral examination of witnesses and with the minimum of delay, expense and technicality. Where none of the wrongful occupiers can reasonably be identified the proceedings take on the character of an acti
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