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2021 MarsdenLR 1529
HIGH COURT SABAH & SARAWAK SANDAKAN
HASSNAR MP EBRAHIM – Appellant
Versus
SAFAR UNTUNG & ORS – Respondent
[Application For Judicial Review No: SDK-13NCVC-2-3-2019]
Mandamus requires the enforcement of a public duty, not discretion. Legislative provisions take precedence over claims of legitimate expectation.
Headnote:(A) Courts of Judicature Act 1964 – Section 25 – Specific Relief Act 1950 – Section 44 – Sabah Land Ordinance – Section 9 – Applicant sought leave for judicial review and an order of mandamus for issuance of land title documents. The court determined mandamus lies only to enforce a public duty, not discretion. The applicant did not establish entitlement to documents as terms of land applications prohibited subleasing without consent. Court held that allegations of tort and abuse of power were irrelevant, and legitimate expectation in property rights could not override statutory discretion. Application dismissed with costs. (Paras 3, 12, 15, 24, 51)
Facts of the case: The applicant claimed beneficial ownership of land and sought to compel issuance of title documents citing failure of the respondents and alleging various improprieties.
Findings of Court: The court found that the applicants did not apply for the land and were aware of prohibitory terms against transfer without consent.
Issues: Whether the applicant had entitlement to issuance of title documents and if the respondents acted unlawfully in denying the documents.
Ratio Decidendi: Establishing the right to mandamus requires a clear public duty, and the discretion given to the authorities under the Ordinance does not equate to a duty to issue titles. The doctrine of legitimate expectation does not override statutory powers provided in land law.
Result: Application dismissed.
Introduction
[1] Enclosure 1 is the application by the self-represented applicant for leave to apply for judicial review against the 1st, 2nd, 3rd and 4th respondents (referred to as "the respondents" unless specifically stated otherwise).
[2] There being no objection by Senior Federal Counsel, leave was granted by this Court on 3 May 2019.
[3] The applicant had vide encl 41 applied to recuse this Court from continuing to hear this application. Enclosure 41 was dismissed on 2 February 2021 and hence, this Court proceeded to hear and decide on encl 1.
The Application For Judicial Review
[4] The applicant's prayers in this application are as follows ( verbatim):
"(1) That leave be granted to the applicant to apply for an Order of mandamus to move the matter to the High Court of Sabah and Sarawak at Sandakan for the following reliefs-
1.1 an order directing and/or compelling the 1st, 2nd, 3rd and 4th respondents by themselves or their agents or servants to issue documents of title within 14 days from the date of this Order for the parcels of land as particularised hereinbelow all situate at Lung Manis Small Holders Scheme in the district of Labuk and Sugut, Sandakan, Sabah (hereinafter the parcels of land described under sub-paragraphs 1.1.1 to 1.1.11 hereinabove are referred to as "the said lands");
1.2 an order directing the 1st, 2nd, 3rd and 4th respondents to forthwith deliver up or cause to be delivered up to the applicant the issued documents of title for the said lands within 14 days from the date of this Order;
1.3 an order that the 1st, 2nd, 3rd and 4th respondents do cause the registrable Memorandum of Transfer in respect of the said lands be registered in favour of the applicant, his wife and/or his daughters pursuant to orders from the Mahkamah Syariah;
(2) A declaration:
2.1 that the applicant is the lawful beneficial and equitable owner of the said lands;
2.2 that the applicant is the lawful attorney over all rights and interests to the said lands by virtue of the applicant's said PA and letters of administration;
2.3 that the agreement entered into between the original successful land applicants of the said lands and the applicant are valid, subsisting and binding
(3) An Order for declaration that the 1st, 2nd, 3rd and 4th respondents jointly and severally liable for tort in abuse of process and powers;
(4) that the 2nd respondent's action based on the directive given by the 1st respondent with instruction the same to withhold issuance of the document of title to the said lands and/or no to entertain the applicant in his effort to obtain the document of title for all the lands he has interest upon is irrational, unreasonable, procedurally improper, breach of Natural Justice, contravenes the Sabah Land Ordinance Cap 68, contravenes the Constitution, against the fundamental principle of fair play, is unlawful, null and void, no legal effect and unenforceable; and
(5) that the combined action of the 1st and 2nd respondents to deny the applicant to be issued documents of title to the said lands, is an abuse of the respondents' administrative Power, in excess of his jurisdiction and is therefore procedurally improper, a breach of Natural Justice, against legitimate expectation, unlawful, void, no legal effect and unenforceable;
(6) Such other or other Orders as may be made or deemed just by this Honourable Court."
[5] The respondents opposed the application.
The Applicant's Complaints
[6] The applicant claimed that the said lands were applied by the respective original land applicants sometime in 1981 under the Luang Manis Smallholders Scheme at Labuk and Sugut districts. According to the applicant, the land applicants who were subsequently issued with and accepted the letters of offer for the said lands had on various dates sold the said lands to him. The applicant claimed that pursuant thereto the land applicants had executed sale and purchase agreements and powers of attorney in his favour.
[7] In addition
