JUDGMENT

1. This is an application by an Originating Summons for the removal of caveat no. L.971/1996 made at the Land & Survey Department, Samarahan, and lodged in the plaintiff's land, on 4th May, 1996. The plaintiff is the sole proprietor of a parcel of land known as Lot 17, Block 8, Melikin Land District and the said land was registered in his name on 22nd August, 1994.

2. The basis for the caveat is the defendant's Statutory Declaration dated 4th May 1996, which is reproduced below:-

" STATUTORY DECLARATION

I, EVELYN SIRO ANAK LASEH (BIC K 784209) of NO. 74, SERIAN BAZAAR, 94700 SERIAN, SARAWAK, do hereby solemnly and sincerely declare as follows: [2]

1. ;That I claim to be the legal and/or beneficial owner of one-half (½) undivided right, title, share and interest in all that parcel of land situate at SUNGAI MERANG, SERIAN SARAWAK, comprising of an area of 5.184 hectares more or less and described as LOT NO. 17, BLOCK 8, MELIKIN LAND DISTRICT by virtue of an oral agreement made in early 1982 between the then registered proprietor LOAT AK JENU (BIC. K 501806) and myself together with my husband ALBERT AK MINTOL (BIC. K 751243) whereby the said LOAT AK JENU had offered to me and my said husband and we accepted the offer to settle and build a house and generally to develop the said land on condition that my husband pays him RM500.00 as ex gratia payment as compensation for his efforts in clearing the land boundary for survey purposes because my father LASEH AK PANDAK had not been able to go with him to clear the boundary of the said land for purposes of survey of the said land. The said sum of RM500.00 was paid to LOAT AK JENU a day later and LOAT AK JENU promise to divide the said land with me and my said husband.

2. ;That I have a right to the said land as the said land belongs and/or was inherited from our common forefathers.

3. ;The purpose of my making this Declaration is to enable me to lodge the said Caveat against the said land.

AND I made this Declaration conscientiously believing the same to be true and by virtue of the provision of the Statutory Declaration Act, 1960. SUBSCRIBED AND SOLEMNLY}declared by the said}EVELYN SIRO ANAK LASEH} (Sgd.)this 4 MAY 1996} ............................. Before me, (Sgd) LAI PENG SENGB.A. LL.B. (Hons)Pesuruhjaya Sumpah,No. 3C, T/1, Jln. Getah,93400 Kuching, Sarawak. ------------------------------------------------ COMMISSIONER FOR OATHS"

[3]

3. It is clear in the Declaration that there is nothing to say that the former owner of the said land, Loat ak Jenu (the plaintiff's father), had sold or given or promised to give one½ share of the land to the defendant. Assuming that what the defendant stated in her affidavit in opposition affirmed on 6th November, 1996 is true, why did she do nothing about it these 14 years since 1982. This inordinate delay without a reasonable explanation would easily defeat her claim. She further stated that she paid RM500.00 to Loat, but Loat in his affidavit affirmed on 11th December, 1996, denied categorically that the plaintiff was entitled to a part of the land; he accepted the RM500.00 as a consideration for the use of the land by the defendant. The title to the said land was registered in the sole name of Loat Ak Jenu, and there was no evidence of joint proprietorship as alleged by the defendant. Learned counsel Mr. Bernard Philip contends that there was a triable question but did not say what the question is. He cited the case of Hj. Khalid bin Abdullah v. Khalid bin Abg. Haji Marzuki & Anor O.M. No. KG 3 of 1983 (unreported) in support. This case can easily be distinguished; in the case the landowner had executed a Memorandum of Transfer in favour of the Applicant on 7th April, 1981 before Lot 275 was settled in his name on 1st April, 1982. The land was subsequently registered on 24th November, 1982 and on 8th January, 1983 he sold the land to the respondent. The applicant lodged a caveat in the land. On being served with a notice under Section