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2021 MarsdenLR 3487
HIGH COURT SABAH SARAWAK KOTA KINABALU
ROGER ANJID – Appellant
Versus
SABAH DEVELOPMENT BANK BHD – Respondent
[Originating Summons No: BKI-24NCvC-18/2-2021]
Originating Summons is unsuitable for resolving disputes where material facts are contested, necessitating a fresh writ action for proper adjudication.
Headnote:(A) Land Ordinance (Sabah Cap 68) – Section 62(2) – Plaintiff seeks declarations regarding validity of Land Charge and Power of Attorney – Issues of native status and compliance with Joint Venture Agreement disputed – Court determines that Originating Summons is not suitable for resolution of disputes, necessitating a fresh writ action. (Paras 6, 11, 18)
(B) Ambit of Originating Summons – Not an appropriate forum when material facts are disputed and affidavit evidence would be conflicting – Court strikes out Originating Summons with costs to Defendant. (Paras 10, 22, 24)
Facts of the case: The Plaintiff, a registered proprietor of native titled land, claims the Land Charge is null and void based on violations of the Land Ordinance and Joint Venture Agreement. The validity of the Power of Attorney is also contested.
Findings of Court: The Court concludes that the Originating Summons does not provide sufficient particulars to identify causes of action; other relevant parties were not included, complicating potential resolutions.
Issues: Whether the Originating Summons should be converted to a writ action and if sufficient particulars were provided to support the claimed reliefs.
Ratio Decidendi: The Court emphasized the need for clarity in the Plaintiff's claims, deciding that the complexities involved warrant a fresh writ action rather than conversion of existing proceedings.
Result: Originating Summons struck out with costs.
JUDGMENT
[1] By this Originating Summons dated 18 February 2021, the Plaintiff is seeking the following reliefs against the Defendant:
(1) A declaration that the Land Charge entered between the Plaintiff and the Defendant using the Power of Attorney dated 23 November 2007 is null and void;
(2) Alternatively, a declaration that the Land Charge is null and void for being in contravention with the Joint Venture Agreement dated 23 November 2007; and
(3) An order for NT 083025807 measuring in total approximately 5.870 hectares situated at Kampung Gambaron, Telupid, in the district of Labuk Sugut, Beluran, Sandakan, Sabah (hereinafter referred to as "the said Land") to be returned back to the Plaintiff."
[2] The Plaintiff has been the registered proprietor of the said Land which is a native titled land.
[3] In 2007, the Plaintiff entered into a Joint Venture Agreement with Deindex Contracts Sdn Bhd (hereinafter referred to as "the Developer") for the development of the said Land into a residential cum commercial area.
[4] Pursuant to the said Joint Venture Agreement, the Plaintiff executed a Power of Attorney dated 23 November 2007 (hereinafter referred to as "PA") whereby the Plaintiff appointed one, Lee Kuah Hoh (hereinafter referred to as "Lee") as his attorney to do and execute all the acts, deeds and things as provided therein including under cl 10 thereunder, to charge the said Land as security for bridging finance in respect of the development project.
[5] On 26 October 2009, Lee as attorney of the Plaintiff and by virtue of the PA charged the said Land to the Defendant to secure the repayment of a loan of RM6,800,000.00 granted by the Defendant to the Developer under a Memorandum of Charge registered under Registered Memo No 810022996 (hereinafter referred to as "the said Charge").
[6] For this action, the Plaintiff claimed that Lee is a non-native and therefore the PA was executed in contravention of s 62(2) of the Land Ordinance (Sabah Cap 68) and consequently the said Charge was null and void.
[7] The Plaintiff also claimed that the said Charge was also in contravention of the Joint Venture Agreement as the Developer did not comply with the provision therein in procuring the bank guarantee in his favour. He claimed that this rendered the said Charge null and void.
[8] The Plaintiff also alleged that the Developer has failed to complete the development project in time as provided under the Joint Venture Agreement and that he has terminated the same.
[9] The Defendant filed its affidavit in opposition (Encl 4) disputing most of the allegations of the Plaintiff such as the native status of Lee and the non-compliance by the Developer of the provision under the Joint Venture Agreement in respect of the bank guarantee.
[10] When the Originating Summons was first called for hearing before the Court on 22 March 2021, counsel for the Plaintiff conceded that the material facts for determination of the issues were in dispute and there would also be allegations of fraud pertaining to the issue of the validity of the PA.
[11] Both counsels conceded that Originating Summons is not an appropriate for determination of the issues as the affidavit evidence relating thereto would be conflicting and cannot be resolved without a trial.
[12] Counsel for the Plaintiff applied for the Originating Summons to be converted and be continued as a writ action.
[13] However, the Plaintiff's counsel was agreeable for the Originating Summons to be struck out with no order as to costs and with liberty to file afresh whereas the Defendant's counsel submitted that the Defendant was entitled to be awarded costs of the action.
[14] In view of the concessions made, I find it no point for further affidavit to be filed by the Plaintiff in adducing the conflicting evidence relating to the matters in reply to the various allegations of the Defendant by its affidavit in opposition.
[15] In view of the concessions of the counsels for the parties, the issue is wheth
