JUDGMENT

Steve Ritikos JC:

(In Respect Of Encl 5)

The Application

[1] The Plaintiff's application vide the Amended Originating Summons in Enclosure 5 for summary possession of the land held under CL 115509683 measuring approximately 16.10 hectares (40 acres) situated at Sg Sahabat Tendu, District of Lahad Datu, Sabah ("the said Land") under O 89 Rules of 2012.

[2] For ease of reference, the cause papers in this application are:

(1) The Plaintiff's Originating Summons dated 21 October 2024 [Enclosure 1];

(2) The Plaintiff's Affidavit in Support affirmed by Datu Mohd Ali Bin Datu Pullah on 16 October 2024 [Enclosure 2] ("AIS");

(3) The Plaintiff's Amended Originating Summons dated 20 January 2024 [Enclosure 5] ("Amended OS");

(4) The Defendant's Affidavit in Opposition affirmed by Alberto Bin Domingo on 31 January 2025 [Enclosure 7] ("AIO");

(5) The Plaintiff's Affidavit in Reply affirmed on 19 February 2025 [Enclosure 8] ("AIR"); and

(6) Defendant's Rebuttal affirmed on 7 April 2025 [Enclosure 9] ("Rebuttal")

Brief Facts Of Case

[3] The Plaintiff is the appointed administrator of the piece of land known as LA No 20-01110013 pursuant to a Syariah Court Order dated 9 October 2008 (see Exhibit "DMA-2" in encl 2).

[4] The said Land was originally applied by the plaintiff's late father, the late Datu Pula Bin Tumanggung who passed away on 13 April 2004 ("the original registered owner").

[5] On 15 November 2018, the plaintiff and defendant entered into a sale and purchase agreement ("S&P") of the land known as LA No 20-01110013 for the purchase price of RM250,000.00 ("the purchase price"). The sale and purchase agreement was prepared by the common solicitors, Messrs. Chang & Kamarudin, Advocates & Solicitors. The Defendant had paid the full purchase price toward the sale of the said Land.

[6] The Defendant then entered and occupied the said Land and developed the same with oil palm trees without interference and/or intervention from the plaintiff for more than 5 years until the plaintiff's present action.

Plaintiff's Submission

[7] The Plaintiff submits that as an administrator of his late father's estate, he does not have any authority to enter into any sale and purchase agreement or any transfer of the deceased's estate without first obtaining an Order from the Syariah Court .

[8] Thus, the plaintiff submitss that he does not have any good title to pass to the defendant when he entered into the sale and purchase agreement in 2018, rendering the S&P bad in law, illegal and void ab initio under the Sabah Land Ordinance as the land in question was not registered with any draft and/or issued title deed number. Therefore, the said S&P could not be enforced and/or specifically performed by any parties.

[9] The Plaintiff submits that the letter from the Mahkamah Anak Negeri, Lahad Datu dated 16 August 1994 (Exhibit "AD-2" in encl 7) is irrelevant and not applicable as the land in question then was non-existent on 16 August 1994, and it was only applied by the plaintiff's late father on or around 2001.

[10] The Plaintiff submits that the 2 letters dated 14 September 2018 and 3 October 2019 (Exhibit "AD-4" in encl 7) from the Land and Survey Department only serve as confirmation that the land applied by the plaintiff's late father is in existence but they do not have any merits to support the defendant's claim for legal and/or beneficial ownership over the land in question.

[11] Alternatively, the plaintiff submits that the letters (exhibits "DMA-5" and "DMA-6" in encl 2) sufficiently and amply notified the defendant of the plaintiff's intention initially to legalise the S&P dated 2018 with reviewed terms. However, the defendant failed to respond to the plaintiff's request and plaintiff eventually applied to repossess the land.

[12] On the issue of amendment of the OS and additional prayer, the plaintiff submitss that initially the OS remained unserved even on a second attempt, however, on 2 May 2025, the plaintiff's solicitors received an email from the defe