A. Preliminary

The matter before me is an application for an Order of Mandamus by the Applicant vides Notice of Motion dated 19.09.1998 (Encl. 20) pursuant to Order 53 Rule 2 of the Rules of the High Court 1980. Specifically, the order sought for is "an Order of Mandamus against the Director of Lands and Surveys (the Respondent) to issue the document of title in respect of Draft Title Country Lease Number 085328016 in favour of the Applicant." At the leave stage only the Respondent was cited as a party. However when the case was fixed for hearing proper the Interveners applied to be joined in the proceeding. Hearings of the matter were fixed on several occasions but adjourned for various reasons mainly on the application of learned counsel for the parties.

B. The Relevant Basic Facts

Several affidavits were filed in connection with this application. They are as follows:-

1. Affidavit in support of Richard Koh Kin Lip affirmed 3rd August 1998 (Koh's first affidavit);

2. Affidavit in Opposition of Julita bte Mani, Simon bin Gasis and Sabin bin Gunting sworn to on 22nd January 1999 (Interveners' first affidavit);

3. Supplementary affidavit of Sabin bin Gunting sworn to on 13th May 1999 (Sabin's affidavit);

4. Affidavit in Reply of Richard Koh Kin Lip affirmed on 24th May 1999 (Koh's second affidavit); and

5. Affidavit in Reply of Simon bin Gasis sworn to on 28th May 1999 (Gasis's affidavit) in reply to Koh's second affidavit.

I note that there is no affidavit filed by the Respondent.

>From these affidavits there are facts that are not in dispute.

The subject matter of the present application is a piece of land measuring approximately 380 acres ('the said Land') situate at Luangmanis, Beluran, Sandakan, Sabah, Malaysia. On one hand it was shown that pursuant to its land application No. 91080197 the Applicant was given an approval vide a letter of approval dated 15.12.1995 under reference LS 801.1.3255(T) 61. The Applicant accepted the offer the next day. A sum of RM57,000.00 was also paid on 18.12.1995 representing 55.10% of the premium payable totaling RM103,275.00. The balance of RM46,275.00 was subsequently paid on 17.06.1997. Thereafter a draft title No. 085328016 was issued in favour of the Applicant. It was duly signed by the Applicant and returned to the Lands and Surveys Department on 17.06.1997. However up to now the draft title has not been registered in the name of the Applicant. Hence this application was filed.

On the other hand it was also disclosed that the Interveners submitted their land applications for 50 acres each in 1993 and were issued respectively with official receipts No. 14087718, 14087716 and 14087717 all dated 03.07.1993. Thereafter they proceeded to develop their respective pieces applied for by planting oil palm although the relevant authority had not issued any approval to their applications. The crop is now producing and the Interveners have also secured permission from the authority to sell the fruits. That the pieces they had applied for were overlapping with the area applied for by the Applicant came to light when between March and April 1997 a private surveyor, Juruukur Asia, engaged by the Applicant, came to their pieces to begin survey work. Such incident led to the Interveners sending their objection to the Assistant Collector of Land Revenue, Beluran. The Member of Parliament for Beluran also wrote a letter dated 17.07.1997 to the District Surveyor seeking for the postponement of the survey work on the said Land pending the settlement of the claims of the Interveners through the process of Land Enquiry. And a further objection letter dated 07.08.1997 was also sent to the Assistant Collector of Land Revenue Beluran by the solicitors of the Interveners. The end result of those letters was a reply dated 04.06.1998 (JSS 22a of Interveners' first affidavit) coming from Assistant Collector of Land Revenue Beluran stating, inter alia, that no further Land Enquiry would be neces