Lim Hock Leng J:

THE PARTIES AND THE DISPUTE

[1]The plaintiff is the registered proprietor of a parcel of land in Kudat which is by the sea, and held under Town Lease 057506288. The land measures 7,621.4sqm more or less.

[2]The plaintiff had applied for the land on 10 July 2003. He occupied the land under temporary occupation licences ('TOLs') since 2009.

[3]The land was eventually alienated by the Jabatan Tanah dan Ukur to the plaintiff, and the title deed for the land was issued to him on 8 November 2019.

[4]He sued the defendant, the local authority, for trespass, for constructing a concrete jetty on the land, and causing others to use it despite his demands for the structure to be dismantled and removed.

[5]In his suit, the plaintiff also averred that the defendant’s concrete jetty was an illegal structure constructed without the approval of the statutory bodies responsible for the establishment, operation and maintenance of jetties, ports and harbours, as well as the regulation of the waterways in Sabah. In addition, the plaintiff took the position that the use of the concrete jetty was obstructive to vessels around the area, in particular the ro-ro ramp nearby.

[6]The crux of the defendant’s case appears to be that 'the defendant’s jetty was built legally long before the title deed for the said land was registered and the defendant’s jetty is used for public purpose,' and the natives of Kudat were using the defendant’s jetty which was built with funds obtained from the Federal Government in 2019. The defendant pleaded that the premium was a mere RM76,500.

[7]The defendant argued that there had never been any complaints from a statutory body about the jetty since it started operations in the 1990s, and that the recent complaints are an afterthought.

[8]The defendant further argued that the plaintiff had misled the Jabatan Tanah dan Ukur.

[9]By its counterclaim, it sought a declaration that the plaintiff had wrongly and unconscionably applied for the land although he was aware of the defendant’s jetty which served a public purpose, a declaration that the alienation of the land to the plaintiff was unlawful, and an order that the issuance of Town Lease 057506288 be set aside.

EVALUATION OF THE EVIDENCE AND FINDINGS

[10]While the plaintiff had applied for the land on 10 July 2003 and the defendant had subsequently applied for the land on 8 January 2009 it is clear that the land applications do not create or confer on any applicant any rights over the subject land (see s 12 of the Sabah Land Ordinance and r 2 of the Sabah Land Rules, and the decision of the Court of Appeal in The State Government of Sabah & Ors v Clarence Chiuh Ken Loong & Ors

[11]The director of the Jabatan Tanah dan Ukur has discretion to alienate land to such applicant as he considers appropriate, including the plaintiff, subject only to the direction of the state cabinet (see s 9 of the Land Ordinance).

[12]The defendant’s complaint that the land was unlawfully alienated and the title deed was wrongly issued, as well as the insinuation that the premium was too low, must be given short shrift as the director of the Jabatan Tanah dan Ukur is not named as a party to the action herein and has not been given the opportunity to be heard (see the decision of the Federal Court in Dr Lourdes Dava Raj a/l Curuz Durai Raj v Dr Milton Lum Siew Wah & Anor

[13]In any case, the court is not seised of original jurisdiction. The matters raised by the defendant so far as they relate to the decision of the director of the Jabatan Tanah dan Ukur to alienate the land to the plaintiff could only come before the Court on Appeal under s 41(1) of the Land Ordinance (see Burhan Ating & Ors v Director of Lands & Surveys & Ors

[14]The defendant’s complaint that it was wrong of the plaintiff to apply for the land — when he knew of the jetty’s existence on it — is misconceived and misleading.

[15]In the first place, the concrete jetty was not in existence when the plaintiff applied for the land on