The court ruled that occupancy with consent negates summary eviction procedures under O 89.

[1] We heard this appeal on 1st June 2016 and disposed of the appeal by allowing the same and setting aside the order of the High Court with liberty to parties to apply. We now append below our grounds for allowing the same.

[2] The Respondents are the registered owners of two pieces of lands held under GM113, Lot 1416, Mukim Bukit Raja, Daerah Petaling, Negeri Selangor (hereinafter referred to as "the said Lands") pursuant to two Sale & Purchase Agreements dated 21 June 2012 (see p 49 and 59 Record of Appeal ("RR") Bahagian B). The Appellants contend in fact that they have been occupying the said Lands since the early 1970s originally through written tenancies entered into between the Appellants and the Respondents' predecessors in title commencing back to early 1970s, and have been occupying the said Lands uninterrupted.

[3] The Respondents filed an Originating Summons (Encl 1) pursuant to O 89 of the Rules of 2012 for the Appellants to deliver vacant possession of the said Lands on the basis the Appellants have been occupying the said Land without the consent of the Respondents and the Appellants are trespassers simpliciter (see p 48 - 59 RR Bahagian B). The High Court allowed the Respondent's application, hence this appeal to the Court of Appeal.

[4] We allowed the appeal and set aside the order of the High Court for the following reasons. Order 89 clearly envisages that the Appellant must be a person or persons who entered into or remained in occupation of the said Land without the consent or license of the predecessors in title of the Respondents.

[5] The Appellants contend that the Appellants occupied the said Lands originally through tenancies and thereafter with the consent of the Respondents' predecessors in title. They had in fact been in occupation of the said Lands since their grandparents' time, since early 1970s. (see p 314-332 RR Bahagian C Jilid 1 & p 60 - 85 RR Bahagian B).

[6] The Appellants with the consent of the predecessors in title of the Respondents had given written consent to the Residents of the said Lands to apply for water supply (p 333 - 334 RR Bahagian C Jilid 1; see also Exh "FBMU 3" p 335 - 370 RR Bahagian C Jilid 1).

[7] It is our considered view that the Appellants do not come within the category of the specialised categories of persons that O 89 r 1(1) Rule of 2012 envisages. We refer to the case of Bohari bin Taib v. Pengarah Tanah Galian Selangor , a decision of the Supreme Court wherein it was held:

"(3) For the purpose of the summary procedure under O 89 a distinction should be made between squatters' simpliciter who have no rights whatsoever and occupiers with licence or consent, as well as tenants and licensees holding over."

and We quote from the Judgment of Azmi SCJ as follows:

"In our view, the appellants in this particular case have sufficiently shown by affidavit evidence that they have an arguable case in that they and some, if not all, of the other farmers have occupied the land for three years under licence and thereafter have remained in occupation with the continued consent of the state government by virtue of the 1980 alienation already approved prior to the TOLs. The learned State Legal Adviser Encik Hishamuddin for the respondent pointed out that the TOLs and therefore consent were given only up to 1983. After that, no TOL was issued, thus indicating absence of consent. In our view, the alleged continued consent of the state government to their occupation notwithstanding the expiry of the TOLs, is one of the serious issues to be tried. The case for the appellants is that they were already in occupation with consent prior to 1981 and the grant of TOLs from 1981 to 1983 is merely part of the chain of events supporting the existence of an approval of alienation of the lands to th