Defendants lack statutory authority to reduce leasehold tenure conditions from 999 years to 99 years during land subdivision; such conditions deemed ultra vires and unlawful.

JUDGMENT

Wong Siong Tung JC:

The Plaintiff's claims

[1] By this Originating Summons (Encl 1), the Plaintiff is seeking for the following declarations:

(a) That the conditions imposed by the 1st Defendant to surrender the original title for three (3) parcels of land, namely, in CL015354266, CL015354319 and CL015354328 each with leasehold tenure of 999 years in exchange for a reduced leasehold tenure of 99 years for the subdivided lots derived there from, namely and now held under document of title No CL015605991; CL015606005 (derived from CL015354266), CL015606069; CL015606050 (derived from CL015354319); and including CL015606041 (derived from CL015354328) as a condition for the approval of the subdivision of the three (3) parcels of land, namely, CL015354266, CL015354319 and CL015354328 were ultra vires and unlawful and was therefore invalid;

(b) That these subdivided lots namely and now held under CL015605991; CL015606005, CL015606069; CL015606050; and including CL015606041 be restored to the leasehold tenure of 999 years with effect from 13 October 1920 as existed before the subdivision of three (3) parcels of land, namely, in CL015354266, CL015354319 and CL015354328; and

(c) The 1st Defendant and the 2nd Defendant shall give full and complete effect to the declarations.

[2] To support his application, the Plaintiff filed his Affidavit In Support affirmed herein on 31 July 2019 (Encl 2).

[3] The Defendants filed the Affidavit In Opposition of Sernam Singh affirmed herein on 5 September 2019 (Encl 3) to oppose the Plaintiff's application.

Brief Background

[4] On the 28 May 1923, the predecessor of the State Government of Sabah, the British North Borneo Company then, by a Deed, granted a leasehold of the parcel of land under Lease No. CL1632 (also known as CL015016323) (hereinafter referred to as "the Original Title") to Lin Fook for the term 999 years from 13 October 1920. The Original Title in the form of a Deed was registered in the District of Jesselton.

[5] In 1963, the Plaintiff acquired the parcel of land under the Original Title and registered as the owner on 29 August 1963, after the Land Ordinance (Sabah) (Cap 68) came into force.

[6] Sometime in 1974, upon the Plaintiff's application for subdivision, the parcel of land under the Original Title was subdivided into three (3) subdivided lots with three (3) separate documents of title namely, CL015354266, CL015354319 and CL015354328 (hereinafter referred to as "the Subdivided Titles") issued to the Plaintiff with the same leasehold tenure of 999 years from 13 October 1920 to 12 October 2919.

[7] It seems that the Plaintiff had entered into some kind of arrangement with one Donfon Development Sdn Bhd (hereinafter referred to "Donfon") for the development of the parcels of land under the Subdivided Titles (See: Exhibit SS-4 of Encl. 3) together with six (6) other parcels of land.

[8] Sometime in 2002, Donfon applied for development of the three (3) parcels of land under the Subdivided Titles together with the other six (6) parcels of land, namely under titles CL015354257, 015354275, 015354284, 015354293, 015354300, and 015410072 for construction of sixteen (16) units of 2-storey Semi-detached House thereon.

[9] On 27 April 2002, Dewan Bandaraya Kota Kinabalu approved Donfon's proposed plan. (See: Exhibit SS-3 of Encl 3)

[10] Donfon's proposed development plan approved by Dewan Bandaraya Kota Kinabalu involved the amalgamation of the three (3) parcels of land under the Subdivided Titles with the other six (6) parcels of land under CL015354257, 015354275, 015354284, 015354293, 015354300, and 015410072 and the further subdivision of the amalgamated lot thereof, into sixteen (16) subdivided lots for the construction of the 16 units of 2-storey Semi Detached House thereon and part of the land for Road Reserve, SESB Substation Reserve and Open Space.

[11] It seems that it was based on Donfon's proposed plan approved by Dewan Bandaraya Kota Kinabalu that Donfon applied to the Lands and Surveys