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2021 MarsdenLR 901
HIGH COURT SABAH & SARAWAK KOTA KINABALU
INNOWEST SDN BHD – Appellant
Versus
THE DIRECTOR OF LANDS AND SURVEYS – Respondent
[Judicial Review Application No: BKI-25JR-7-4-2021]
Judicial review under the Sabah Land Ordinance affirms the discretionary powers of authorities and the principle that expectations based on offers do not constitute enforceable rights unless formal title registration occurs.
Headnote:(A) Sabah Land Ordinance (Cap. 68) – Section 9 – Judicial review applied by the Applicant against the Respondent’s decision to revoke the Offer to Alienate Land dated February 7, 2020 – The Respondent’s revocation of the offer was held lawful as it was based on Cabinet directions, with no procedural unfairness found (Paras 57-83).
(B) Natural Justice – Principles established that the requirement to be heard is contingent upon statutory provisions, and that legitimate expectations do not override established legal provisions (Paras 68-70).
(C) Mandamus – The court reiterated that mandamus cannot be employed to compel discretionary actions—and the Applicant's expectations based on the Offer to Alienate Land did not create binding rights without registration (Paras 48-67).
Facts of the case: The Applicant sought judicial review of a revocation of an offer to alienate land, claiming unfair treatment and breach of natural justice. The Respondent claimed compliance with the cabinet's decision to maintain the land status.
Findings of Court: Respondent acted within statutory powers and no procedural violations occurred.
Issues: Does the revocation comply with legal procedures and can expectations based on an offer constitute a legally enforceable right?
Ratio Decidendi: There was no breach of natural justice as the Respondent adhered to the statutory framework; thus, the decision to revoke was justified and lawful.
Result: Application dismissed with no order as to costs.
(Enclosure 5)
[1] This is the hearing of the substantive application for judicial review of the Respondent's decision dated 7 February 2021 to revoke the offer to alienate a parcel of land at Kg. Lok Batik in the district of Tuaran. The reliefs sought by the applicant are as follows:
(1) A declaration that the parcel of land measuring around 10 hectares which is the subject matter of the Offer to Alienate Land dated 7 February 2020 made by the Respondent to the Applicant is not within any foreshore reserve or foreshore area;
(2) An order of certiorari to remove into this Honourable Court and quash forthwith the decision of the Respondent to issue the letter dated 8 January 2021 to revoke the Offer to Alienate Land dated 7 February 2020;
(3) An order of mandamus compelling the Respondent to complete the preparation of and to issue the document of title Country Lease 045393173 to the Applicant within one month;
(4) Costs;
(5) Any other or further relief as the Court deems fit.
[2] The grounds of this application are as follows:
(1) That the decision of the Respondent is unlawful, null and void;
(2) That procedural unfairness operated and impinged upon the decision of the Respondent and the decision was made in breach of the principles of natural justice in that:
(a) no opportunity to be heard was afforded to the Applicant even though the Applicant would be adversely affected by any decision to revoke the offer to alienate land;
(b) the Applicant was deprived of the opportunity to inform the Respondent that the Land under the Offer to Alienate Land dated 7 February 2020 did not fall within any foreshore reserve nor any foreshore area;
(c) the decision making process of the Respondent was unfair and in breach of the rules of natural justice, as the Respondent considered a complaint letter dated 15 October 2020 written by the solicitors for Tekun Cemerleng Sdn Bhd alleging that the Land under the Offer to Alienate Land dated 7 February 2020 was within a foreshore reserve without giving any opportunity to the Applicant to rebut this incorrect allegation of fact;
(d) The Respondent did not apply his mind to the evidence, facts, laws and issues before making the decision to revoke the Offer to Alienate Land dated 7 February 2020.
(3) Further or in the alternative, that the decision is irrational, unreasonable and/or unlawful and the Respondent took into account irrelevant considerations and failed to take into account relevant considerations in:
(a) failing to consider that the Land under the Offer to Alienate Land dated 7 February 2020 does not fall within any foreshore reserve or foreshore area;
(b) failing to consider and ignoring the report forwarded to the Respondent by the Assistant Collector of Land Revenue, Tuaran under a letter dated 14 December 2020 which had explicitly stated that the Land under the Offer to Alienate Land dated 7 February 2020 falls outside any foreshore reserve or foreshore area;
(c) the Respondent's decision to revoke the Offer to Alienate Land dated 7 February 2020 was not based on any factual information nor any information gathered from any site inspection;
(d) the Respondent's basis to revoke the Offer to Alienate Land dated 7 February 2020 was irrational, unreasonable and/or unlawful in that the Land was never part of any foreshore reserve;
(e) the Respondent failed to re-consider his decision to revoke even after the Applicant's solicitors wrote to him to inform him that the Land was not part of any foreshore reserve or foreshore area and attaching a survey plan prepared by a licenced surveyor confirming that fact;
(f) The Respondent failed to consider that the Applicant would have had incurred numerous expenses in addition to payment of the premium for the land.
(4) the Respondent acted unlawfully in that the Respondent stated that he was directed to make the decision to revoke the Offer to Alienate Land dated 7 February 2020 and failed to exercise his own discretion; and
(5) The Applicant
