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2011 MarsdenLR 3230
HIGH COURT TAWAU
GRACE MARK SDN BHD & ORS – Appellant
Versus
THE PERSONS IN OCCUPATION OF LANDS HELD UNDER TITLE NO. CL105545533 CL1.... – Respondent
[Originating Summons No. T-24-56 Of 2010]
The court affirmed the necessity of resolving native customary rights claims through trial, rejecting the argument of indefeasibility of title due to the unique legal context in the region.
Headnote:(A) High Court Rules 1980 - Order 89 - Determination of native customary rights (NCR) - The court set aside its previous order, noting that triable issues exist regarding whether defendants are squatters and their claims of NCR over disputed land - The doctrine of indefeasibility of title was deemed not applicable within the land law context of the case. (Paras 1, 17, 18, 26, 29)
(B) Judicial notice - The court recognized the historical presence of native communities in the disputed land areas and considered cultural practices in the resolution of land title issues. (Paras 7, 19)
Facts of the case:
The defendants claim native customary rights over land disputed by the plaintiffs, who are the registered title holders. The affidavit provided factual context about native land usage.
Findings of Court:
The court held that significant triable issues exist that cannot be resolved via affidavit evidence, necessitating a full trial.
Issues: The court considered the definitions of squatters, the essence of NCR in the context of land ownership, and whether the property could be classified as alienated land requiring specific legal interpretations.
Ratio Decidendi: The court concluded that the assertion of NCR claims deserves examination at trial, emphasizing that definitions of ownership and compliance with legal requirements should be thoroughly scrutinized.
Result: The court set aside the earlier order and provided lawful directives for proceeding with costs. The defendants are entitled to remain on the land until the trial.
I have read all the cause papers including Enclosure 23 (affidavit in opposition by Datuk Lim Yu Ming) and Enclosure 24 the Plaintiffs' submission and I have heard Miss Tracy Voo and Mr. Liew Hon Min both counsel for the Plaintiffs.
The law on the merits of an O 89 for summary possession of land is replete with decided cases. See page 1423 and page 1427 of Malaysian Court Practice 2011 paragraphs 89.1.4 and 89.6.6. It is akin to an O 14 application for summary judgment where only in clear and obvious case will the applicant succeed.
Gopal Sri Ram JCA in respect of the scope of O 89 Rules of The High 1980 in the case of Zaibar Auto (Malaysia) S/B v. Shell Trading Malaysia S/B, at page 216 said:
"The Rule has always been read as it ought to be read, as applying to squatters pure and simple. It does not apply to tenants who hold over. It does not apply to one who enters upon the land who remains in occupation with the consent of the applicant under the Oder or any predecessor in title of such an applicant. It does not apply to persons who are in occupation under a legitimate expectation of receiving from the State Authority issue documents of title to the portion they occupy."
