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2021 MarsdenLR 2059
HIGH COURT SABAH & SARAWAK TAWAU
NUR AZLIN RAZAL @ ABD RAZI – Appellant
Versus
KAMUNRI NAHO & ORS – Respondent
[Suit No: TWU-22NCvC-5/3-2019]
The registered proprietor holds superior rights over the land, with claims of the defendants being legally ineffective due to lack of proof and compliance with land regulations.
Headnote:(A) Native Title 103058608 - Power of Attorney Act 1949 - Land Ordinance (Cap 68) - Interpretation (Definition of Native) Ordinance (Cap 64) - Dispute over land ownership - Plaintiff, as registered proprietor, is entitled to possession of the land, as defendants failed to prove their claim of ownership or possession rights. (Paras 147 and 148)
(B) The court held the power of attorney did not confer rights to build dwellings nor survive the donor’s death. (Paras 87, 153)
(C) Plaintiff is a bona fide purchaser for value without notice, and defendants’ claims were deemed unreliable and legally ineffective. (Paras 137, 149)
Facts of the case: The plaintiff purchased the land from the administrator of the estate of the original owner. Defendants claimed rights based on a power of attorney and alleged purchase; however, no clear proof of these claims was provided.
Findings of Court: The court found the plaintiff had the proper title and the defendants failed to establish any legitimate proprietary interest in the land, and were occupying it unlawfully.
Issues: The court considered the validity of the power of attorney, whether it survived the donor's death, and the legality of the defendants’ occupation.
Ratio Decidendi: The title of land passed only through proper legal channels, and the defendants could not substantiate their right to possess the land under the power of attorney.
Result: Plaintiff granted possession of the land; nominal damages awarded and costs granted in favor of the plaintiff.
JUDGMENT
1) Introduction
[1] The plaintiff is the sole registered owner of a parcel of land measuring 3.291 hectares more or less, situate in Tawau, Sabah.
[2] The land is held under Native Title 103058608. It is the subject matter of dispute in the case at hand.
[3] The plaintiff's cause of action lies in trespass.
[4] The plaintiff's case is that, on dates unknown, the defendants had wrongfully entered onto and taken possession of the subject land. She complained that they had constructed dwellings thereon and continue to commit trespass. She thus initiated the action herein to recover possession of the land, damages, interest and costs.
[5] The 1st to 35th, as well as the 37th and 39th defendants (collectively referred to as "the defendants") are jointly represented by a common set of solicitors. The 36th and 38th defendants are unrepresented and did not enter appearance; they are not defending the action.
2) A History Of The Land
[6] The original owner of the land is one Amasain Namong. He acquired it by way of a land application submitted to the government vide Permohonan Tanah no 80100101.
[7] Amasain's land application was approved vide a letter dated 19 August 1992 (CBD, Part B, page 5).
[8] According to the defendants' pleaded case, the 39th defendant had purchased the land from Amasain. From the only documentary evidence led vide a receipt, the purchase was around 11 December 1994.
[9] Amasain passed away on 12 January 2005, without leaving a will. The title deed was accepted and issued in his name thereafter by the administrator of the estate on 20 October 2015.
[10] In addition, Amasain had "irrevocably appointed" the 39th defendant as his attorney in relation to the subject land by a power of attorney dated 31 December 1998 ("the PA").
[11] The PA is said to have conferred upon the 39th defendant as the donee, the powers to take possession of the land for the purpose of clearing and planting, to plant and farm on the subject land as approved by the government, to sign on the donor's behalf and to apply for the draft title or the title itself, to develop, sell and transfer the subject land, to apply for and obtain permission to change the special terms and conditions, and so on. The PA was said to have been registered in court on 5 January 1999.
[12] All the defendants claimed that they had been occupying the subject land since 1998, and did so with authority in the circumstances just set out.
[13] After Amasain passed away intestate on 12 January 2005, his son Mohammad @ Ribut Amasain ("Ribut") became the administrator of his estate by an order of the Mahkamah Tinggi Syariah Tawau dated 9 June 2014.
[14] The Perintah Perlantikan Sebagai Wali Harta was issued after no objections had been received. It bears the notation "Perintah ini dikeluarkan selepas luput tempoh untuk merayu dibawah s 139(4) Enakmen Tatacara Mal Mahkamah Syariah Negeri Sabah 2004." See CBOD, Part B, page 7.
[15] By an order of distribution granted by the Mahkamah Tinggi Syariah Tawau dated 19 November 2015, the following children of Amasain became owners of the land in the proportions stated:
Ribut (2/5 share),
Kurus Misain (2/5 share); and
Udang Binti Amasain (1/5 share).
[16] They became the registered owners of the subject land on 8 December 2015 vide memorial no 1010004706 as endorsed on the title deed of the land.
[17] They offered to sell the land to the plaintiff for RM60,000.00. In compliance with the special terms stated in the title deed, the prior written consent of the Director of Lands and Surveys was obtained vide a letter dated 22 August 2016. The requisite consent is endorsed on the title deed.
[18] The registered owners and the plaintiff signed the memorandum of transfer dated 1 September 2016, upon payment of the purchase price. The title deed was handed over to the plaintiff. On it, the transfer of ownership was registered on 8 September 2016 vide memorial number 1010005003.
3) The Pleadings
[19] At the outset, the defendants averred t
