Fraud allegations can challenge the indefeasibility of title under Section 134 of the Sarawak Land Code, regardless of the registered proprietor's complicity.

JUDGMENT

Azizul Azmi Adnan JCA:

Introduction

[1] The present appeal was against the decision of the High Court allowing an application under O 14A of the Rules of 2012, by which the appellant plaintiffs' case was struck out as against the respondent, which was the 3rd defendant in the Court below. The case turned upon the true construction of s 134 of the Sarawak Land Code , which provides for the circumstances under which a land title may be challenged on account of fraud.

[2] We allowed the appeal and directed that the case be remitted back to the High Court for trial. The reasons for our decision are recorded here. In these grounds of judgment, the parties will be referred to as they were in the Court below.

Material Background Facts

[3] The plaintiffs in this case claimed native customary rights over a land measuring more than 220 acres in the Matang Land District in Sarawak. According to the plaintiffs, customary rights over this land were created in the 1940s. In 1993, the land was alienated to the 3rd defendant, Lembaga Amanah Kebajikan Darul Falah.

[4] A settlement survey exercise had been carried out over the subject lands in 1972 by the 1st defendant, who is the Superintendent of Lands and Surveys, Kuching. This survey recorded the names of several claimants of native customary rights over the subject land, including the predecessors-in-title and ancestors of the plaintiffs.

[5] Despite this settlement survey having been conducted and without any extinguishment of the native customary rights of the claimants, the land in question was alienated to the 3rd defendant in 1993. Two leases were granted to the 3rd defendant, the total land area of which was 90.817 hectares, or approximately 224.41 acres. The leases were granted for a period of 99 years. The consideration payable to the state for each lease is a peppercorn per annum.

[6] The plaintiffs' pleaded case was that the alienation and transfer to the 3rd defendant was effected fraudulently by the 1st defendant and the 2nd defendant (being the state Government of Sarawak). It was also contended that the 1st and 2nd defendants were in breach of their fiduciary duties to the plaintiffs when they did so. The plaintiffs further contended that they had discovered the alleged fraud only in 2016, and hence, they were not barred by limitation.

[7] It is important to observe the following points:

(a) there was no allegation of fraud against the 3rd defendant (the respondent here); and

(b) the contention of fraud against the 1st and 2nd defendants was only raised in the plaintiffs' reply to the defence.

[8] Among the reliefs sought by the plaintiffs was a declaration to the effect that the two titles held by the 3rd defendant over the subject land are null and void.

The Order 14A Application

[9] The 3rd defendant made an application under O 14A of the Rules of 2012 for the determination of two preliminary questions of law. The two questions posed were as follows (in verbatim):

(i) whether, the effect of the decision of the Federal Court in TH Pelita Sadong & Anor v. TR Nyutan Jami & Ors & Other Appeals, [2018] 1 MLJ 77 and Court of Appeal in Yahya Timbon & Ors v. Kumpulan Parabena Sdn Bhd; [2020] 5 MLJ 774, on the plaintiffs' action against the 3rd defendant, is that the plaintiffs have no right in law whatsoever to claim declaratory order or any other legal remedy against the 3rd defendant, who is the registered proprietor of Lots 85 and 86, both of Block 1 Matang Land District, and should, therefore, be summarily dismissed; and

(ii) whether the 3rd defendant, by virtue of being the registered proprietor of Lots 85 and 86, both of Block 1 Matang Land District, and the holder of the issue documents of title thereto issued by the Superintendent of Lands and Surveys, holds an indefeasible title to the same as against the plaintiffs, who accordingly have no cause of action against the 3rd defendant.

[10] Should these questions be answered in the affirmative, the 3rd defendant prayed for the sui