Court emphasized the need for full disclosure and evidence of fairness in partitioning co-owned land under National Land Code, highlighting the binding nature of co-ownership agreements.

JUDGMENT

Amarjeet Singh Serjit Singh JC:

Introduction

[1] On 1 July 2020 Nusa Etika Sdn Bhd ("the plaintiff") filed this originating summons dated 1 July 2020 seeking an order that the land held under Geran Mukim 1109, Lot 2985, Mukim 12, Daerah Seberang Perai Utara, Pulau Pinang ("the land") which is presently held under a co-proprietorship with 29 other persons be partitioned pursuant to subsection 145(1) of the National Land Code 1965 and for consequential orders therefrom. For convenience and brevity hereinafter all sections refer to the 1965 unless stated otherwise.

[2] The plaintiff also sought an injunction to restrain the defendants from interfering with the plaintiff's efforts to obtain an order for partition of the land until the instant application is determined by this Court. In view of the manner in which the hearing of the instant application proceeded and was concluded the injunction sought was of no utility and therefore did not arise to be considered.

[3] Only the 9th, 14th and 26th defendants of the 29 defendants appeared and participated in the proceedings through counsel. The other defendants did not appear although they had been served with the cause papers.

[4] On 12 May 2021, I dismissed the originating summons and awarded costs to the 9th, 14th and 26th defendants. The reasons for my decision are as follows.

Background Facts

[5] The plaintiff, according to the land title, was as of 5 May 2016 the registered as owner of 25327/204188 shares in the said land. It had purchased the shares from the previous owner which was also a company. The land is a freehold land and not subject to any category of land use or has any restriction of interest. The title further stated that the land comprised in the said title:

(a) shall not be affected by any provision of the National Land Code or any other written law prohibiting mining or the removal of specified materials beyond the boundaries of the land; and

(b) shall not be affected by any provision of the National Land Code limiting the compensation payable on the creation of a Collector's right of way to compensation for damage in respect of trees, crops or buildings.

[6] A director of the plaintiff, Chiu Chee Wai, averred in the affidavit in support of the application that he was advised by counsel that the purpose of the application is to bring to an end the co-proprietorship so that the plaintiff and the defendants would obtain separate documents of title for their respective undivided shares. The plaintiff said that it commissioned a surveyor to draw up a proposed plan for the partition. The proposed plan divides the land into 3 long strips of land with the plaintiff taking the 2nd Plot which is a smaller strip between the 1st Plot and 3rd Plot. The defendants neither joined in nor consented to the proposed partition. In fact, it was averred that some of the defendants did attend the plaintiff's solicitors' offices only to disagree with the proposal due to various issues which were not made known to this Court vide the affidavit in support.

[7] The surveyor's plan would result in all the defendants being co-proprietors of plots of land in either the 1st Plot and/or of the 3rd Plot. The director averred that the partition is based on the current premises used by the defendants as residential houses and the purpose to obtain the partition was not for personal use but to surrender the proposed 2nd Plot to the State Authority as a road reserve.

[8] The 26th defendant, Lim Lean Wei, averred in his affidavit in reply dated 17 August 2020 that he, the 9th defendant and 14th defendant, according the land title, hold 1275/102094, 8881/204188 and 5785/204188 undivided shares respectively. He averred that he was authorised by the 9th defendant and 14th defendant, who are his parents, to also affirm the affidavit on their behalf.

[9] Lim Lean Wei produced a sale and purchase agreement dated 16 October 2017 which he had entered into with the previous co-proprietor when purchasing