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2021 MarsdenLR 4045
HIGH COURT SABAH & SARAWAK KOTA KINABALU
LEMBAGA PEMBANGUNAN PERUMAHAN DAN BANDAR & ANOR – Appellant
Versus
JUMARAK NIN KINJIN – Respondent
[Originating Summons No: BKI-24NCvC-112/12-2020]
A registered landowner has the exclusive right to recover possession from unlawful occupants without license or consent, as per previous legal precedents.
Headnote:(A) Housing and Town Development Authority Enactment 1981 (Sabah No 20 of 1981) – Order 89 of the Rules of 2012 – Recovery of possession of land – The registered owner is entitled to recover possession of lands occupied without license or consent. The Plaintiffs demonstrated necessary locus standi, stating the absence of consent from the Defendant, who was not authorized by the Plaintiffs to occupy the land. (Paras 1-41, 52-74)
(B) Native Customary Rights – The jurisdiction to determine Native Customary Rights claims lies exclusively with the ACLR and is barred for High Courts unless an order is made by the ACLR. (Paras 42-44)
Facts of the case: The Plaintiffs, as registered landowners, sought to recover possession of land occupied unlawfully by the Defendant and others, asserting that the Defendant could not prove any legal right to occupy.
Findings of Court: The Court found that the Plaintiffs had the title and necessary authorizations, while the Defendant lacked any proof of consent or legal occupation.
Issues: Whether the Defendant had a license or any legal right to occupy the land.
Ratio Decidendi: A registered proprietor's consent is required for lawful occupation of land, and mere application for land does not provide any legal rights until granted by relevant authorities.
Result: The application for recovery of possession granted with costs awarded to the Plaintiffs.
JUDGMENT
(Enclosure 1)
[1] This is an application by the Plaintiff to recover possession of land held under CL 015683002, CL, CL 015683066, CL 015682952, CL 015682961, CL 015682970, CL 015682989 and CL 015682998 (formerly held under master titles No CL 015495431) and 015497720 on the ground that they are entitled to possession and that the persons in occupation are in occupation without licence or consent.
Brief Factual Background
[2] The 1st Plaintiff, the Housing and Town Development Authority or Lembaga Pembangunan Perumahan Dan Bandar (LPPB) is a statutory body constituted under the Housing and Town Development Authority Enactment 1981 (Sabah No 20 of 1981).
[3] The 1st Plaintiff is the registered owner of two (2) parcels of lands held under titles No CL015495431 measuring an area of 54.85 hectares more or less and CL015497720 measuring an area of 12.39 hectares more or less both situated at Menggatal, Sabah ("the parent lots"). The titles CL 015495431 and CL015497720 were subsequently amalgamated and subdivided into CL 015682989, CL 015682998, CL 015683002, CL 015682970 and CL 015683066 ("the collective Lands"). The 1st Plaintiff remains as the registered owner of the collective Lands. (see Exhibits "MND-1", "MND- 2", "MND-3", "MND-4", "MND5", "MND-6" and "MND-7" of the Plaintiffs' AIS).
[4] The 2nd Plaintiff is a company incorporated in Malaysia and having its office at AP-0-6, Lot 302, Lorong Bandar Putra 1C, Phase 1, Bandar Putra, KM 15, Jalan Tuaran, Menggatal North, 88450 Kota Kinabalu, Sabah. The 2nd Plaintiff is a property developer.
[5] By a Memorandum of Agreement dated 27 December 1993 and various supplementary agreements and deed thereto; as well as a Powers of Attorney dated 1 July 203 and 19 November 2010, (the Power of Attorney) the 1st Plaintiff has appointed the 2nd Plaintiff to develop two (2) parcels of lands held under titles No CL015495431 and CL015497720 situated at Menggatal, Sabah. (See Exhibits "MND-8" and "MND9" of the Plaintiffs' AIS).
[6] In recent years since about 2018, it was discovered that there were squatters who occupied the collective Lands without consent, permission or licence from the Plaintiffs. The Plaintiffs had approached and inquired the unauthorized occupants on their occupation of the collective Lands. The said occupants acknowledged that they do not have any issued document of title to the collective Lands.
[7] To date, there are about 20 structures erected on the collective Lands without the Plaintiffs' consent, permission or licence. The Plaintiff submitted that these structures were erected without the approvals from Dewan Bandaraya Kota Kinabalu or the local authorities; and are therefore illegal structures. (See Exhibits "MND-10" and "MND-11" of the Plaintiffs' AIS).
[8] By a Public Notice issued in November 2019, the 2nd Plaintiff had issued notices to require all the unauthorized occupants in the collective Lands to leave the collective Lands. (See Exhibit "MND-12" of the Plaintiffs' AIS).
[9] The 2nd Plaintiff has also erected multiple notice boards on the collective Lands. The notice boards states that the unauthorized occupants are to move out of the collective Lands failing which the 2nd Plaintiff will take legal action. (See Exhibit "MND-13" of the Plaintiffs' AIS).
[10] Despite the Notices, the unauthorized occupants have failed, refused and/or neglected to accede to the same or any part thereof.
[11] On 23 December 2020, the Plaintiffs applied for the summary possession of land under O 89 by way of Originating Summons supported by Affidavit. The Plaintiffs pray for an order that Plaintiffs do recover possession of the collective Lands on the ground that they are entitled to possession and that the persons in occupation are in occupation without licence or consent. (See the Plaintiffs' OS).
[12] On 29 December 2020, the Plaintiffs' OS, the Plaintiffs' AIS, the Certificate of Urgency, and a copy of the Notice of Hearing dated 28 December 2020 ("the said Doc
