Lim Hock Leng J:

INTRODUCTION/AGREED FACTS

[1]The first, second and thirdplaintiffs will be collectively referred to as the plaintiffs. They are among the 172 beneficial owners/beneficiaries of an undivided parcel of land measuring some 2,000 acres in the District of Tongod in Sabah held under a communal title held vide field register Title No 254000087 (‘the land’).

[2]The plaintiffs bring the representative action herein for themselves and the other beneficiaries against the first defendant for trespass in relation to a specific part of the Land.

[3]On 2 May 2018, the Land was alienated to the 172 beneficiaries by the Director of the Lands and Surveys Department who as the collector was named as the trustee. The beneficiaries had shares in the undivided Land ranging from 3 to 25 acres, as set out in the title deed.

[4]The first defendant purported to occupy a part of the Land (‘the subject land’) pursuant to a written lease agreement dated 7 August 2018 which was entered into with one Jafray Samin (‘DW1’) for the monthly rental of RM3,500.

[5]It is also an agreed fact that, since 16 August 2021, the first defendant had entered the subject land and carried out site clearing and earthworks in furtherance of a road construction project.

[6]It is further an agreed fact that the first defendant had not asked for or obtained the consent of the plaintiffs or any of the beneficiaries or the second defendant to enter the subject land.

[7]The plaintiffs were unhappy with the first defendant’s occupation and use of the subject land.

[8]On 8 July 2022, they issued a letter of demand to the first defendant to vacate the subject land but to no avail.

[9]On 12 July 2022, the plaintiffs sought consent from the collector of the Lands and Surveys Department as trustee of the land to commence legal action against the first defendant.

[10]The collector did not reply within 14 days as requested.

[11]The collector was then named as the second defendant in the representative action.

[12]By a letter dated 26 August 2022, the State Attorney-General of Sabah representing the second defendant as the collector and trustee for the beneficiaries informed the plaintiffs’ solicitors that the second defendant had filed a memorandum of appearance, but would not file a defence and would abide by the decision of the court.

[13]By virtue of the agreed facts, the issues fall within a narrow compass.

ISSUES

[14]There are eight agreed issues but some of them may be grouped together.

Whether beneficial owners have locus standi to launch representation action, and procedure

[15]The first of the agreed issues is whether the plaintiffs and the other beneficiaries are the legal and beneficial owners of the respective shares in the land earmarked for them in the communal title. A perusal of the title deed will show that they are the beneficial owners of the respective shares shown against their names, while the collector is named as the trustee below the description ‘owner(s).’

[16]Although not specifically set out in the statement of agreed issues for trial (‘SAIT’), the legal issue or threshold question of law here is whether the plaintiffs have locus standi as beneficial owners to bring the representative action on behalf of the other beneficiaries of the land which is undivided albeit with a certain acreage earmarked for each beneficiary, although the collector is the trustee.

[17]A corollary legal issue is whether the right procedure had been adopted, with the collector-qua-trustee named as the second defendant.

Representative action: Requirements

[18]In Duke of Bedford v Ellis

The old rule in the Court of Chancery was very simple and perfectly well understood. Under the old practice the court required the presence of all parties interested in the matter in suit, in order that a final end might be made of the controversy. But when the parties were so numerous that you never could ‘come at justice,’ to use an expression in one of the older cases, if everybody interested was made a party