JUDGMENTBY: THOMSON CJ, GOOD J, NEAL J

THOMSON CJ The respondent to this appeal is the registered proprietor of country land some six acres in extent in the State of Johore and on 6th May, 1958, he applied by way of Originating Summons for certain reliefs in connection with a charge on the land which he had granted in favour of the appellant on 9th January, 1955.

I would observe in limine that the respondent was asking for the discharge of a charge of land which is the equivalent under our land laws of a reconveyance of mortgaged property and it was therefore open to him to proceed by way of Originating Summons under Order LV rule 5A. His solicitor, however, must have been well aware that there was a dispute as to the facts of the case and in the circumstances the proceedings should have been commenced by Writ (see White Book, 1959, p. 1503). In my view this was not in itself fatal to the respondents case but if it has involved any extra costs, as it may have done in the circumstances of the present case, these should be borne by the respondent in any event.

The respondents case was that a few days prior to 9th January, 1955, the appellant agreed to lend him $ 6,750 without interest for a period of six months. The money was paid and on 9th January, 1955, he executed a charge over his land in accordance with the provisions of the Johore Land Enactment setting out the terms of the previous oral agreement and charging his land by way of security for the loan. On 9th July, 1955, when the loan became repayable he had only paid $ 600. Subsequently, however, he paid sums amounting to $ 6,150 in satisfaction of the balance of the loan and the appellant having refused to grant a discharge of the charge he asked for an order directing the appellant to grant such a discharge or alternatively that the Commissioner of Lands for Johore or the Collector of Land Revenue at Kluang should be ordered to discharge the charge and make the necessary consequential memorial on the document of title.

The appellant admitted the terms of the oral contract of loan and after some preliminary lying he admitted that he had received $ 6,750 in all from the respondent. He alleged, however, that when the loan was not repaid on 9th July, 1955, the respondent asked him for further time to pay and that he agreed to this on consideration of the respondent agreeing to pay him a share in the profits of a building project which the respondent was carrying out on his land with the aid of the borrowed money. In his affidavit he was very vague as to the details of this agreement but he alleged that a number of the payments subsequently made to him by the respondent were made in pursuance of it and not in repayment of the original loan in respect of which the charge had been granted.

In the event the trial Judge refused to admit evidence of this alleged oral agreement on the ground that it was evidence to vary the terms of the original loan agreement and granted the respondent the relief for which he asked.

Against that decision the appellant has now appealed.

His first ground of appeal is that the Court had no jurisdiction to deal with the matter. He based his argument on rule 37 of the Johore Land Rules, 1929, which provides that where a charge in respect of country land not exceeding 100 acres is alleged to have been satisfied but the signature of the chargee as to such satisfaction cannot be procured the owner of the land may apply to the Commissioner of Lands to exercise his powers under section 54 of the Land Enactment and that the Commissioner shall after due inquiry make such order as to the cancellation or otherwise of the charge as he may think fit.

I would express no opinion as to whether the, rule in question does indeed give the Commissioner power to deal with a case like the present one. The Court, however, possesses unlimited civil jurisdiction (see Articles 121 and 172 of the Constitution and Clause 77 of the Federation of Malaya Agreement), and

Click Here to Read the rest of this document