Back
2024 MarsdenLR 2909
HIGH COURT SABAH & SARAWAK KOTA KINABALU
LIM HOCK LENG, J
PAULUS @ PAUL GAHIN & ORS – Appellant
Versus
LESTARI LTC SDN BHD & ANOR – Respondent
[Suit No: BKI-22NCvC-55/8-2022]
Beneficial owners of communal land can sue for trespass without trustee's consent, as they possess enforceable possessory rights.
Headnote:(A) Land Ordinance - Sections 12, 14, 41, 42, 76 - Representative action by beneficial owners - Plaintiffs, as beneficial owners of a communal title, possess locus standi to enforce possessory rights without trustee's consent - Special terms in title do not negate their rights. (Paras 15, 22, 33, 35)
(B) Trespass - Elements of trespass established - 1st Defendant entered and occupied subject land without legal justification - Damages awarded for unlawful occupation. (Paras 65, 76)
Facts of the case:
Plaintiffs, beneficial owners of communal land, sued the 1st Defendant for trespass after the latter occupied the land without consent, despite attempts to resolve the matter. (Paras 2, 8, 11)
Findings of Court:
The 1st Defendant was found to be a trespasser and ordered to pay damages and vacate the subject land, with the Plaintiffs entitled to possession. (Paras 78, 79)
Issues: Whether Plaintiffs had locus standi to sue and if the 1st Defendant had lawful rights to occupy the land. (Paras 14, 50)
Ratio Decidendi: The court determined that beneficial owners can sue for trespass without the trustee's consent when enforcing possessory rights, and established the elements of trespass were met in this case. (Paras 33, 66)
Result: Plaintiffs' claims allowed.
Introduction/Agreed Facts
[1] The 1st, 2nd and 3rd Plaintiffs will be collectively referred to as the Plaintiffs. They are among the 172 beneficial owners/beneficiaries of an undivided parcel of land measuring some 2,000 acres in the District of Tongod in Sabah held under a communal title held vide Field Register title no 254000087 ("the Land").
[2] The Plaintiffs bring the representative action herein for themselves and the other beneficiaries against the 1st Defendant for trespass in relation to a specific part of the Land.
[3] On 2 May 2018, the Land was alienated to the 172 beneficiaries by the Director of the Lands & Surveys Department who as the Collector was named as the Trustee. The beneficiaries had shares in the undivided Land ranging from 3 to 25 acres, as set out in the title deed.
[4] The 1st Defendant purported to occupy a part of the Land ("the subject land") pursuant to a written lease agreement dated 7 August 2018 which was entered into with one Jafray Samin ("DW1") for the monthly rental of RM3,500.00.
[5] It is also an agreed fact that, since 16 August 2021, the 1st Defendant had entered the subject land and carried out site clearing and earthworks in furtherance of a road construction project.
[6] It is further an agreed fact that the 1st Defendant had not asked for or obtained the consent of the Plaintiffs or any of the beneficiaries or the 2nd Defendant to enter the subject land.
[7] The Plaintiffs were unhappy with the 1st Defendant's occupation and use of the subject land.
[8] On 8 July 2022, they issued a letter of demand to the 1st Defendant to vacate the subject land but to no avail.
[9] On 12 July 2022, the Plaintiffs sought consent from the Collector of the Lands & Surveys Department as trustee of the Land to commence legal action against the 1st Defendant.
[10] The Collector did not reply within 14 days as requested.
[11] The Collector was then named as the 2nd Defendant in the representative action.
[12] By a letter dated 26 August 2022, the State Attorney-General of Sabah representing the 2nd Defendant as the Collector and Trustee for the beneficiaries informed the Plaintiffs' solicitors that the 2nd Defendant had filed a Memorandum of Appearance, but would not file a defence and would abide by the decision of the Court .
[13] By virtue of the agreed facts, the issues fall within a narrow compass.
Issues
[14] There are 8 agreed issues but some of them may be grouped together.
Whether Beneficial Owners Have Locus Standi To Launch Representation Action, And Procedure
[15] The first of the agreed issues is whether the Plaintiffs and the other beneficiaries are the legal and beneficial owners of the respective shares in the Land earmarked for them in the communal title. A perusal of the title deed will show that they are the beneficial owners of the respective shares shown against their names, while the Collector is named as the trustee below the description "owner(s)."
[16] Although not specifically set out in the Statement of Agreed Issues for Trial ("SAIT"), the legal issue or threshold question of law here is whether the Plaintiffs have locus standi as beneficial owners to bring the representative action on behalf of the other beneficiaries of the Land which is undivided albeit with a certain acreage earmarked for each beneficiary, although the Collector is the trustee.
[17] A corollary legal issue is whether the right procedure had been adopted, with the Collector-qua-trustee named as the 2nd Defendant.
(i) Representative Action: Requirements
[18] In Duke of Bedford v. Ellis [1901] AC 1, where the Plaintiffs were asserting their statutory rights as growers and vendors of flowers and agricultural produce in the market owned by the Duke of Bedford who imposed what were perceived to be discriminatory rates in favour of middlemen, Lord Macnaghten held:
"The old rule in the Court of Chancery was very simple and perfectly well understood. Under the old practice the Court required the presence
