A caveator must demonstrate a valid caveatable interest and timely pursue legal action; failure to do so results in the caveat being removed.

JUDGMENT

Celestina Stuel Galid J:

Land Law

Introduction

[1] The matter before me is an appeal by the Plaintiff pursuant to s 41(1) of the Land Ordinance ("the Ordinance") against the decision of the Director of Lands & Surveys Department ("DLS") in reversing the decision of the Assistant Collector of Land Revenue ("ACLR") who refused the 1st Defendant's application to remove the Plaintiff's caveat on the land held under CL 075367902 ("the land").

Analysis And Decision

[2] Section 116 (4) of the Ordinance provides that:

"Any person whose land or interest is bound by a caveat may, except in the case of a caveat by the Collector, make application to the Collector in writing to remove the caveat, and thereupon the Collector may serve a notice upon the caveator in the form of Schedule XXI requiring him to show cause why the said caveat should not be removed, and the Collector shall, after hearing the parties, make such order as he shall think just."

[3] It is trite law that in an application for the removal of caveats, the caveator bears the burden of showing that:

(a) he has caveatable interest in the subject land;

(b) his claim to an interest in the subject land raises a serious question to be tried; and

(c) on a balance of convenience, status quo is to be maintained until the trial of the action.

[4] Richard Malanjum JCA (later CJ of Malaysia) in the Court of Appeal case of Institut Teknologi Federal Sdn Bhd v. IIUM Education Sdn Bhd & Another Appeal; 2007 MarsdenLR 2616 ; ; 2005 MarsdenLR 2336 , inter alia, held that:-

"The first critical issue is for a caveator to show the Court that he has caveatable interest entitled to be protected pending determination of his actual claim. If there is none then the caveat must be removed."

Whether The Plaintiff Has Caveatable Interest In The Land

[5] The caveat in question was dated 16 February 2021 and registered with the memorial number MC2102070168 on 24 February 2021. The ground was stated as "to safeguard its interest pending the transfer of the property into the name of the caveator". Apart from this caveat, there were four other earlier caveats lodged by the Plaintiff over the land which were dated 17 April 2018, 12 November 2015, 10 April 2013 and 25 May 2010 and respectively registered on 24 April 2018, 19 November 2015, 9 May 2013 and 2 July 2010 with each former caveat purporting to be a renewal of the latter.

[6] In the caveat dated 25 May 2010 which was registered on 2 July 2010, the following was stated as the ground for the caveat:

"By a Sale & Purchase Agreement dated 6 May 2003, the Caveatee had sold the property to Ali Hussin bin Ibrahim [NRIC No 671128-12-5599] for valuable consideration. Subsequently by a Sub-Sale & Purchase Agreement dated 20 January 2009, the said Ali Hussin bin Ibrahim [NRIC No. 671128-12-5599] had sold the said Property to the Caveator for valuable consideration."

[7] In effect, the caveat dated 16 February 2021 purported to be a further renewal of the first caveat dated 25 May 2010. Notwithstanding that it was so, it is of significance that the "caveatee" referred to in the caveat dated 25 May 2010 is one Hasim bin Saban ("the deceased") and not the 1st Defendant herein. Neither was the 1st Defendant named in the caveats dated 10 April 2013 nor the one dated 12 November 2015. The 1st Defendant was only named as the "caveatee" in the caveats dated 17 April 2018 and 16 February 2021.

[8] By the caveat dated 17 April 2018, the Plaintiff was quite obviously already aware of the change in ownership of the land and by extension, would have been aware that the ground stated in the caveat dated 25 May 2010 was no longer correct in that the caveatee ie the 1st Defendant have not had any dealings with the Plaintiff. However, the Plaintiff was content to leave the purported ground for the caveat as it was.

[9] It has been held that the ACLR is not entitled to go beyond what was stated in the application when applying for the caveat - see Mok Yong Kong & Anor v. Mok Yong C