Back
2021 MarsdenLR 2874
HIGH COURT SABAH SARAWAK KOTA KINABALU
OMAYA HOLDINGS SDN BHD – Appellant
Versus
ELMYATON YAHYA & ANOR (ENCL 1) – Respondent
[Originating Summo ns No: bKI-24NCvC-72/8-2020]
Custody of a certified copy of a title document does not confer rights to the underlying property; possession is determined by lawful entitlement.
Headnote:(A) Land Ordinance (Sabah Cap 68) – Section 120 – Right to custody of certified copy of document of title – The Plaintiff sought delivery of title from the 1st Defendant, who had been issued a certified copy under s 120 – It was determined that the Plaintiff held no right to custody, as 1st Defendant lawfully obtained the copy and payment was made accordingly. (Paras 18–28)
(B) Affidavit evidence – The court stated affiants' conflicting statements must be ignored where no cross-examination occurs – The court must decide on undisputed facts only. (Paras 13–15)
Facts of the case: The 1st Defendant applied for a certified copy of the land title, while the Plaintiff claimed ownership. The issue was whether the Plaintiff had the right to custody of this document. (Paras 1–10)
Findings of Court: The court found the Plaintiff had no claim against the 1st Defendant regarding the custody of the certified copy. The ruling noted that ownership of the title document does not confer ownership of the land itself. (Paras 42–44)
Issues: The key issue addressed was the Plaintiff's legal right to the custody of the certified copy against the 1st Defendant, despite the ownership of the land. (Paras 18, 42)
Ratio Decidendi: The court concluded that mere possession of the certified copy does not provide any claimant rights over the land. The certified copy, while property, does not equate to ownership of the land. (Paras 36, 39)
Result: Plaintiff's Originating Summons dismissed; 1st Defendant's striking out application rendered unnecessary.
JUDGMENT
Introduction
[1] This case concerns the right to the custody of the certified copy of the document of title in respect of that parcel of land situated at Kg. Rampayan, District of Kota Belud, held under Country Lease 035314375 (hereinafter referred to as"the said Land") which was issued by the 2nd Defendant to the 1st Defendant on 19 September 2017 under s 120 of the Land Ordinance (Sabah Cap 68) upon the application made by the 1st Defendant.
[2] On 18 August 2020, the Plaintiff took out the Originating Summons (encl 1) herein seeking against the Defendants, the following orders:
(a) An Order that the 1st Defendant deliver to the Plaintiff, within three (3) days from the date of the Order, "the replacement document of title" to the said Land;
(b) An Order directing 2nd Defendant to cancel "the replacement title";
(c) An Order directing the 2nd Defendant to rectify the record of the Land Registry in Kota Belud in respect of the issuance of "the replacement title";
(d) Costs of this application.
[3] On 17 September 2020, the 1st Defendant took out a Notice of Application (Encl 3) to strike out the Plaintiff's Originating Summons herein for disclosing no reasonable cause of action or scandalous or frivolous or vexatious or tending to prejudice or embarrass this action or an abuse of process of the court under O 18 r 19 (1)(a), (b), (c) and (d) of the Rules of 2012.
Brief Background Facts
[4] The Plaintiff was alienated by the state, registered as the lessee of the said Land and issued with the document of title on 25 May 1993 thereto with terms among them, additional special terms that the shareholders of the Plaintiff and the shares held by them are as follows:
(a) Datin Arfah Bt Datuk Arif - 1 share
(b) Mohd Hatta Bin Datuk Yahya - 1 share
(c) Elmyaton Bte Datuk Yahya (the 1st Defendant) - 1 share
See: Exhibit OSB-1 of encl 2.
[5] However, based on the Corporate Information issued by the Companies Commission Malaysia on 6 August 2020 in respect of the Plaintiff, the shareholder of the Plaintiff is WY Borneo Sdn Bhd (Co No 670009-U) holding all the 4 issued shares of the Plaintiff. This seems to be contrary to the special additional terms for which the said Land was alienated to the Plaintiff.
[6] The said Corporate Information also reveals that the 1st Defendant is not a member of the Board of Directors of the Plaintiff. The only two (2) Directors of the Plaintiff are Lim Nyek Kiong @ Lim Nyuk Min and Wong Kean Sung who are the only two (2) shareholders in the said WY Borneo Sdn Bhd (Co No 670009-U) based on another Corporate Information issued by the Companies Commission Malaysia on 6 August 2020 in respect of the said WY Borneo Sdn Bhd (Co No 670009-U)
See: Exhibit OSB-2(a) and OSB-2(b) of encl 2.
[7] On 15 September 2017 and upon the application made by the 1st Defendant, the Collector of Land Revenue issued to the 1st Defendant a certified copy of the document of title in respect of the said Land under s 120 of the Land Ordinance (Sabah Cap 68).
[8] On 12 April 2018, the 1st Defendant commenced action in the High court at Kota Kinabalu in Suit No BKI-22NCvC-29/4-2018 (hereinafter referred to as "the said Suit") against the Plaintiff and others claiming that the 1st Defendant remained the Director and shareholder of the 1st Defendant and asserting that she was fraudulently divested of her share in the 1st Defendant. The claimed was resisted by the 1st Defendant and other Defendants who filed their defence in the said Suit.
The 1st Defendant's Notice Of Application Dated 17 September 2020 (Enclosure 3) To Strike Out The Originating Summons-Duplicity In Hearing The Same Matters And Issues
[9] In respect of the Plaintiff's striking out application by Notice of Application (Encl 3), O 18 r 19(3) of the Rules of 2012 provides that the rule relating to striking out any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement under O 18 r 19(1)(a) to (d) of the Rules of 2012
