An administrator of a deceased's estate has the locus standi to apply for the removal of a caveat under the Sarawak Land Code.

Vernon Ong FCJ:

Introduction

[1] In this appeal, the Federal Court was called upon to consider the following question for which leave was granted pursuant to s 96 of the Courts of Judicature Act 1964:

Whether an administrator of a deceased's estate has the locus standi to bring an action to remove a caveat lodged against a parcel of land under the estate pursuant to s 177 of the Land Code (Cap 81) having regard to s 218 of the Land Code (Cap 81), ss 15 and 17 of the Administration of Estate Ordinance (Cap 80) and s 8(1) of the Civil Law Act 1956 ?

[2] This question of law relates to the legal right of an administrator of an estate to apply to remove a caveat on a parcel of land belonging to the estate under the Sarawak's Land Code (Cap 81) ('the Sarawak Land Code'). It is sufficient for the purposes of this appeal to state the following salient facts.

Salient Fact

[3] The appellant was appointed as the administrator of his late father's estate pursuant to Letters of Administration granted to him on 27 September 2010. During his lifetime, the appellant's father who was the registered owner of two parcels of land entered into a sale and purchase agreement to sell the said lands to the respondents' late father. Pursuant to the sale, the respondents' father lodged a caveat on the two parcels of land. As the appellant's father passed away without applying for the consent to transfer, the sale agreement remained uncompleted.

[4] In 2016, the appellant qua administrator of his late father's estate, applied to the High Court under s 177 of the Sarawak Land Code to remove the caveat. The High Court dismissed the application on the ground that the appellant qua administrator did not have the locus standi to apply for the removal of the caveat under s 177 of the Sarawak Land Code. The Court of Appeal by a majority decision dismissed the appellant's appeal.

Decision Of The High Court

[5] The learned judge found that the appellant qua administrator did not have the locus standi to apply to remove the caveat as he did not have a registered interest under s 177 of the Sarawak Land Code (see Teng Hung Ping v. Hoan Siew Choo & Ors [1993] 1 MLRH 611, [1993] 2 CLJ 662; Eda Lee @ Lee Ada v. Lai Nam Fah & Anor; [2015] 4 AMR 396). The learned judge drew a distinction with holders of powers of attorney which she held to have registrable interest and thereby had locus to make such applications (see David Gramong v. Rasit Tar ; 1991 MarsdenLR 1077 ; Kumpulan Laudiri Sdn Bhd v. Tang Kah Ung & 2 Ors).

[6] Whilst accepting that the appellant qua administrator was not acting in his personal capacity but acting on behalf of the estate, the learned judge also opined that beneficiaries under an intestacy has no interest in the estate until the administration of the estate is complete and distribution made according to the law of distribution (see Law Hock Key & Anor v. Yap Meng Kan & Ors 2008 MarsdenLR 2340 , [2008] 3 CLJ 470; Hong Leong Bank Bhd v. Staghorn Sdn Bhd & Other Appeals; [2008] 2 MLJ 622; [2008] 2 CLJ 121; Chong Fook Sin v. Amanah Raya Bhd & Ors; [2011] 1 MLJ 721; [2010] 7 CLJ 917).

Decision Of The Court Of Appeal

[7] The Justices in the majority (David Wong and Umi Kalthum, JJCA) affirmed the High Court's decision on the following grounds:

i. The policy and rationale of the Sarawak Land Code is that of registration;

ii. The paramount word in s 177 is the word "registered";

iii. Followed the interpretations given by Richard Malanjum J (later CJ) in Teng Hung Ping, supra and Chong Siew Fai J (later CJSS) in David Gramong, supra;

iv. Eschewing the purposive interpretation, the majority opined that unless one has a registered interest in the scope of the Sarawak Land Code, one has no locus standi;

v. The appellant is not without remedy as he can still avail s 178 of the Sarawak Land Code which provides that the appellant may himself register as the administrator of the estate and with such registration he will have clothed himself with the locus standi to