Partition of land under Sarawak Land Code does not require consent of all co-proprietors if a competent court orders it.

[1] This is the Plaintiffs' application pursuant to s 129 of the Sarawak Land Code (Cap 81) for the partition of the land described as Sibu Occupation Ticket No 35735 ("Land") vide the Originating Summons dated 25 September 2015 filed herein (Enclosure 1).

[2] The relevant affidavits filed and exchanged in relation to the said Originating Summons are as follows:-

(i) The Plaintiffs' Affidavit in Support affirmed by Lee Neng King on 25 September 2015 (Enclosure 2);

(ii) The Defendants' Affidavit in Opposition affirmed by Ngu Leh Ngiik on 19 November 2015 (Enclosure7);

(iii) The Plaintiffs' Affidavit in Reply affirmed by Lee Neng King on 25 November 2015 (Enclosure 8);

(iv) The Defendants' Affidavit in Opposition 2 affirmed by Ngu Leh Ngiik on 2 December 2015 (Enclosure 9);

(v) The Defendants' Affidavit in Opposition 3 affirmed by Lee Meng Hee on 2 December 2015 (Enclosure 10);

(vi) The Plaintiffs' Affidavit in Reply (2) affirmed by Lee Neng King on 7 December 2015 (Enclosure 11);

(vii) The Defendants' Affidavit in Reply 4 affirmed by Lee Meng Hee on 13 January 2016 (Enclosure 14);

(viii) The Defendants' Affidavit in Reply 5 affirmed by Ngu Leh Ngiik on 15 January 2016 (Enclosure 15); and

(ix) The Plaintiffs' Affidavit in Reply (3) affirmed by Lee Neng King on 21 January 2016 (Enclosure 17).

Background

[3] The Plaintiffs and the Defendants are the registered co-proprietors of the Land holding the following shareholdings in the Land:-

The Plaintiff' Contentions

[4] The Plaintiffs contended as follows:-

(i) that in early 2013, the 2nd Plaintiff had approached both the Defendants and informed them of the proposed partition/sub-division of the Land based on their respective shareholdings and the areas currently occupied by them. The Defendants agreed and requested the 2nd Plaintiff to engage a qualified surveyor to survey and prepare the plan for sub-division of the Land;

(ii) that they and the Defendants then engaged one Mr Wong Goh Ann, a qualified surveyor, to prepare a plan for sub-division of the Land into 2 plots of land in accordance with the Defendants' collective shares and the Plaintiffs' collective shares in the Land. The appointed Surveyor then prepared the plan for sub-division of the Land ("Plan of Sub-Division") whereby the Land is divided into Plot 1 and Plot 2. Plot/sublot 1 consists of an area of 4,827.31 square metres whereas Plot/sublot 2 consists of an area of 12,611.00 square metres and there is an area of approximately 3.69 square metres reserved for SESCO for the purpose of a tower base site;

(ii) That the Plan of Sub-Division is in compliance with s 231(1) of Sarawak Land Code as it is prepared by a qualified person and it showed all existing roads, reserves and access-ways, the proposed roads, drains and location of drainage outlet and their alignments and dimensions and such other details as may be required by the State Planning Authority. The said Plan of Sub-Division was duly approved by the Land and Survey Department via its letter dated 2 October 2013 [Ref No: 3/TP/3D/37/2013(HQ] for the purpose of agriculture and subject to payment of RM20.00 (See: Exhibit "NLN-2" of Defendant's Affidavit in Opposition dated 17 November 2015);

(iv) That all the Plaintiffs and the Defendants had mutually consented to the Plan of Sub-Division (although the Defendants their Affidavit in Opposition herein stated otherwise) and the consent is shown at exh "A-3" of the Plaintiffs Affidavit in S