Hasan Lah JCA:

[1] On 25 June 2007 we heard these two appeals and after hearing submissions made by the parties we allowed the appeals. We now give our reasons for the decision.

Background

[2] By a development plan duly approved by the then Lembaga Bandaran Tawau viaDP12/73 in or about March 1973 ("the first development plan") for the development of commercial shop houses in Bandar Sabindo Tawau, several parcels of land described under TL 107522985 and TL 107523008 had been set aside for the purpose of maintaining open public spaces (hereinafter referred to as "the said land"). The Master Title described under TL 106290831 had been sub-divided into various sub-divided titles including that of the said land.

[3] The shop houses and infrastructures had been built on the basis of the first development plan and sub-division plan which had clearly identified that the said land had been expressly reserved for public spaces and/or car parks. It was also on this basis that the shop houses were sold to the respective purchasers.

[4] The ten appellants (the plaintiffs in the High Court) are the registered owners of seven of the shop houses constructed in the said project and as the registered owners of the shop houses they claimed that they are the ratepayers, inhabitants, users and beneficiaries of the public space, public playing grounds, parks and gardens within the Tawau Municipal area including in particular the open public space at Bandar Sabindo.

[5] By reason of the plaintiffs being the registered owners, ratepayers and inhabitants as well as beneficiaries of the said land, they claimed they have legitimate and special interest in the same over and above other members of public within the Tawau Municipal area and they have acquired a common right to the use and enjoyment of the said land. The said land was vested in the Majlis Perbandaran Tawau ("the Majlis") in trust to keep the same open or control the use of the same for the plaintiffs' benefit. The said land is therefore trust property. The Majlis is trustee and the plaintiffs are the beneficiaries of the same.

[6] On or about 16 December 1996 the Majlis entered into a joint venture agreement with Aggasf Construction Sdn. Bhd. ("ACSB") and Jeramas Sdn. Bhd. ("JSB") to develop the said land on a joint venture basis into commercial shoplots for commercial gains.

[7] On or about 27 May 2005 the Majlis approved two development plans ("the second development plans") submitted by ACSB and JSB in respect of the said land and ACSB and JSB subsequently commenced works thereon.

[8] On 14 December 2005 the ten plaintiffs commenced the following two suits in the High Court of Sabah and Sarawak in Tawau:

(a) Suit No. T(21)-52-2005 against JSB and the Majlis; and

(b) Suit No. T(21)-53-2005 against ACSB and the Majlis.

[9] The 2 suits are similar in term of facts as well as nature of claims and relief. The plaintiffs claimed for the following relief from JSB and ACSB:

(a) a declaration that the two joint venture agreements are invalid as being ultra vires the Local Government Ordinance 1961 and the Tawau Municipal Council Instrument 1983;

(b) a declaration that the second development plans submitted by JSB and ACSB relating to the said land and approved by the Majlis are invalid;

(c) an order that the second development plans be set aside;

(d) an order restraining JSB and ACSB from entering, trespassing, remaining and carrying out construction works on the said land together with the adjoining lands;

(e) an order compelling JSB and ACSB to forthwith dismantle, remove and clear all plants, equipments and materials laden on the said land.

[10] On the same day the plaintiffs filed summons-in-chambers in both suits under O. 29 r. 1 of the Rules of the High Court applying for interim injunctions to restrain JSB and ACSB from entering, trespassing, remaining or carrying out construction on the said land and an order to compel them to remove equipments and materials from the said land.

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