JUDGMENT

Saiful Azian Mokhtar JC:

[1] The plaintiff took out an Originating Summons ("OS") under O 89, r 1 of the Rules of 2012 (ROC) to recover possession of a parcel of land in Kampung Minusoh, District of Tongod, Sabah held under Country Lease No 255342011 ("the subject land") against the 16 defendants named in OS as well as other unidentified persons in occupation thereof.

Facts

[2] The plaintiff is the registered owner of the subject land, while the defendants are the villagers from Kampung Minusoh, District of Tongod, Sabah.

[3] The plaintiff applied for the subject land and was successful. The Offer to Alienate dated 25 July 1998 was issued to the plaintiff. Originally, the Jabatan Tanah dan Ukur ("JTU") approved an area measuring 249 hectares or 615.3 acres to be alienated to the plaintiff but as a result of objections and claims of Native Customary Rights (NCR) by some of the villagers from Kampung Minusoh, District of Tongod, parts of the approved land measuring approximately 55.87 hectares or 138.05 acres was excised from the approved area.

[4] The area to be excised was determined after land enquiries were conducted by the Penolong Pemungut Hasil Tanah, Tongod ("Tongod PPHT"). In total, 13 orders all dated 3 September 2015 were issued by the Tongod PPHT recognizing the various NCR claims. When the land title to the subject land was finally issued, the area which the Tongod PPHT ordered to be excluded land had been excised from the area alienated to the plaintiff, and the plaintiff was issued with a land title for a smaller parcel of land.

[5] The villagers had also lodged a complaint with the Human Rights Commission of Malaysia (SUHAKAM). The complaint was investigated and SUHAKAM came out with a proper report, which was exhibited as GBH-2 to the 6th, 9th and 17th Supplemental Affidavit (Encl 61).

[6] When the plaintiff's surveyor wanted to conduct survey works, the plaintiff's surveyor was prevented from doing so by the villagers. The plaintiff then raised the problem with the JTU. Through a letter dated 29 March 2022, the Deputy Director of JTU confirmed that the land title was registered on 8 October 2021 and further informed the plaintiff that maintaining and developing the land is the full responsibility of the plaintiff as the landowner, including issues related to encroachment on the subject land. The plaintiff also wrote to the Tongod District Office for permission to develop the subject land, which was granted vide the Tongod PPHT's letter dated 4 April 2022.

[7] Thereafter, the plaintiff proceeded to enter the subject land to develop the same, but the plaintiff's workers were harassed by the villagers of Kampung Minusoh. The plaintiff also lodged several police reports and instructed the plaintiff's solicitors, Messrs Yap Chin & Tiu to issue a Notice to Vacate the subject land to the defendants on the basis that they were the trespassers on the subject land. Having failed to vacate, this OS was filed.

[8] The 1st to 5th, 7th, 8th and 12th to 15th defendants were represented by Messrs. Rayhan & Co (hereinafter referred to as "Rayhan's clients"), while the 6th, 9th and 17th defendants were represented by the Messrs. Goldam & Co (hereinafter referred to as "Goldam's clients").

[9] The remaining defendants, namely the 10th, 11th and 16th defendants did not appear nor were they represented by counsel during the hearing of the OS on 9 August 2024 and this Court after being satisfied that the 10th, 11th and 16th defendants were properly served with the cause papers, allowed the plaintiff's claim against the said 10th, 11th and 16th defendants.

[10] On 22 January 2025, this Court and granted an order for possession of the subject land against Messrs. Rayhan's clients and Messrs. Goldam & Co's clients. These are the grounds of this Court 's decision.

Applicable Law

[11] Order 89, r 1 of the ROC reads:

Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or