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2021 MarsdenLR 3886
HIGH COURT SABAH & SARAWAK KOTA KINABALU
GOH CHIN MOI @ GOH CHIN FUNG & ORS – Appellant
Versus
GOH CHIN FOOK @ GOLOU & ORS – Respondent
[Originating Summons No: BKI-24-91/9/2020]
Intention of land transfer must be established through evidence; disputes regarding land ownership are unsuitable for resolution via an Originating Summons.
Headnote:(A) Native Title Act – Declaration of ownership – The court considered the intentions of the late owner regarding land transfer to her children, and the implications of the 1983 Memorandum of Transfer. The court noted that disputed facts prevent resolution via an Originating Summons. (Paras 4-10)
Facts of the case: Plaintiffs, the daughters of the deceased owner, claim entitlement to land compensation after their mother's intention to transfer land in equal shares was not properly executed. The Plaintiffs received significantly less compensation than intended. (Paras 1-2)
Findings of Court: The court emphasized that the issues are triable in nature, asserting that the resolution requires further inquiry, and there are serious disputes of material facts. (Paras 5-9)
Issues: The court addressed intentions related to land transfer and whether the Plaintiffs' claims are time-barred or guilty of laches. (Paras 4-6)
Ratio Decidendi: The court upheld the principle that if allegations are credibly denied and cannot be resolved without hearing witness evidence, such disputes should not be adjudicated solely on affidavit evidence. (Para 7)
Result: The application is struck out, allowing for filing of a fresh writ action. (Para 11)
JUDGMENT
(Enclosure 1)
[1] This is an application for certain declaratory reliefs and reimbursement of land compensation monies relating to the acquisition of the land held under Native Title 013050961 (the said land). The orders or reliefs sought by the Plaintiffs are as follows:
A. A declaration that Bungar bte Kumpat had prior to her death in November 1983 had indicated her intention to transfer the land held under Native Title 013050961 in equal shares to her eight (8) children namely:
1.1 Goh Chin Moi @ Goh Chin Fung - the First Plaintiff;
1.2 Goh Chin Ming @ Goh Chin Hwa - the Second Plaintiff;
1.3 Goh Chin Lin - the Third Plaintiff;
1.4 Goh Chin Lan @ Voo Chin Lan - the Fourth Plaintiff;
1.5 Goh Chin Siang @ Wu Chin Siang;
1.6 Goh Chin Fook @ Golou - the First Defendant;
1.7 Goh Chin Lok @ Datuk Johnny Goh; and
1.8 Ng Chin Kiong.
B. A declaration that prior to her death, Bungar bte Kumpat acting on her intention, had proceeded to request the Native Court of Inanam for a letter confirming in writing her intentions as above stated to transfer the land held under Native Title 013050961 - the equivalent of one (1) acre each to the First, Second, Third, Fourth Plaintiffs herein and Goh Chin Siang @ Wu Chin Siang as shown from the Native Court Letter dated 21 July 1983 annexed to the 1983 Memorandum of Transfer;
C. A declaration that the District Land Office of Kota Kinabalu in the course of performing their duties acting on the written intentions of Bungar bte Kumpat had on 22 July 1983 erroneously caused to be transferred one thousand of the eighty thousand six hundred twenty-five (1000/80625) shares in the land held under Native Title 01305096 each to the First, Second, Third, Fourth Plaintiffs and Goh Chin Siang @ Wu Chin Siang instead of the share equivalent of one (1) acre each to accord with the intentions of Bungar bte Kumpat;
D. A declaration that prior to the land held under Native Title 01305096 being compulsorily acquired by the Third Defendant, the First, Second, Third, Fourth Plaintiffs and Goh Chin Siang @ Wu Chin Siang are the registered owners and lawfully entitled to the equivalent of one (1) acre each in the said land held under Native Title 013050961;
E. An Order that the First Defendant do hereby return and/or reimburse the First, Second, Third, Fourth Plaintiffs and Goh Chin Siang @ Wu Chin Siang the sum of Ringgit Malaysia One Hundred Seven Thousand Nine Hundred Sixty-Six and Seventy-Eight sen (RM107,966.78) each comprising monies the First Defendant had received upon compulsory acquisition of the said land and that ought instead to be payable to the First, Second, Third, Fourth Plaintiffs and Goh Chin Siang @ Wu Chin Siang. The said monies are to be remitted into their respective bank accounts within one (1) week of this Order - particulars to be advised subsequent hereto;
F. Interest of five (5) percent per annum from 13 August 2019 till the date of payment;
G. Cost to be borne by the Second and Third Defendants; and
H. Any other relief as this Honourable Court deems fit.
Material Facts
[2] From the Affidavits and submissions filed by the Plaintiffs, the Plaintiffs contends that the material facts are as follows:
(i) The Plaintiffs are the daughters of the late Bungar bte Kumpat who was the registered owner of a parcel of land held under title No NT013050961 measuring 8.01 acres situated at Kampung Matadan, in the district of Kota Kinabalu ("the said Land"). The late Bungar bte Kumpat had three other sons namely the Defendant, Goh Chin Lok @ Datuk Johnny Goh and Ng Chin Kiong who was adopted.
(ii) On 21 July 1983, the late Bungar bte Kumpat together with her four daughters - the Plaintiffs and her son Goh Chin Siang @ Wu Chin Siang went to the Kota Kinabalu Land Office for the purpose of transferring one (1) acre each in the said Land to the Plaintiffs and Goh Chin Siang @ Wu Chin Siang.
(iii) A Memorandum of Transfer then was executed by the late Bungar bte Kumpat, the Plaintiffs and Goh Chin Siang @
