JUDGMENT

Saiful Azian Mokhtar JC:

Introduction

[1] This judgment after a full trial deals with a sale and purchase of an undivided share in a parcel of land and the subsequent attempt by the Plaintiff, as the purchaser to subdivide the said parcel of land into two separate sub-divided titles.

[2] The Defendant, as the vendor refused to agree to the subdivision and even alleged that there was no sale of the land but instead the land was only used as security for an alleged loan.

Background Facts

[3] The Defendant was the registered owner of a parcel of land held under Native Title 083248891 situated in the District of Telupid, Sabah measuring an area about 4.045 hectares, more or less ("the said Land").

[4] By a Sale and Purchase Agreement dated 20 June 2017 ("the SPA"), the Defendant agreed to sell and the Plaintiff agreed to purchase a portion of said Land measuring about 2.218 hectares (5.48 acres) (equivalent to 548/999 undivided share) ("the Plaintiff's Land") in consideration of RM27,400.00.

[5] By a Supplemental Sale and Purchase Agreement dated 24 September 2019 ("the Supplemental SPA"), it was agreed, inter alia, as follows:

(i) That the size of the Plaintiff's Land, which was originally 548/999 undivided share be varied to 5000/9999 (or ½) undivided share; and

(ii) Both the Plaintiff and the Defendant further agreed to subdivide the said Land into Lot 1 (being the Defendant's Land) and Lot 2 (being the Plaintiff's Land) in accordance to the proposed subdivision plan annexed thereto.

[6] The Plaintiff's Land was duly registered into the Plaintiff's name on 8 January 2020. Thereafter, the proposed subdivision plan was presented for a subdivision on 29 June 2020, Still, it was not approved on the ground that a drainage reserve of at least 5 meters in width was required to be provided for in the subdivision plan.

[7] The Plaintiff then arranged for a new subdivision plan to be prepared with the necessary drainage reserve duly provided for along the middle border of the proposed subdivided Lot 1 and Lot 2 with 2.5 meters width in each lot. The Defendant, however, refused to sign the new subdivision plan. The Defendant also refused to deliver to the Plaintiff the original title deed for the said Land for the purpose of subdivision.

[8] Sometime in May 2023, the Plaintiff's solicitors issued a formal demand to the Defendant but the Defendant still refused to sign the new subdivision plan and deliver the original title deed to the Plaintiff, hence this Suit was filed into Court to compel the Defendant to do so.

[9] The Plaintiff also prayed for an injunction to restrain the Defendant and his agents and/or servants from entering the Plaintiff's Land as well as for damages against the Defendant for permitting third parties to enter the Plaintiff's Land.

[10] By way of defence and Counterclaim, the Defendant sought a declaration that the SPA and Supplemental SPA are null and void ab initio, together with other ancillary orders on the basis that both these agreements were used to disguise a friendly loan.

Statement Of Agreed Facts

[11] The Statement of Agreed Facts (Encl 45) agreed by the parties read as follows:

1. The Plaintiff and the Defendant had entered into a Sales and Purchase Agreement on 20 June 2017 for a portion of the NT 083248891 land measuring 2.218 hectares more or less ie 548/999 undivided share in consideration of RM27,400.00.

2. The Plaintiff and the Defendant had on 24 September 2019 entered into a Supplemental Sale and Purchase Agreement agreed the portion of the land purchased by the Plaintiff shall be ½ undivided share measuring 2.022 hectares more or less. The purchase price of the portion of land remains RM27,400.00. The Purchase Price of RM27,400.00 had been fully paid to the Defendant.

3. It was an express terms of cl 3 of the Supplemental Sale and Purchase Agreement that the Plaintiff and the Defendant agreed for the title deed of NT 083248891 to be submitted for sub division into 2 lots in accordance with the proposed