Moo Hon Yee

[2018] MLRHU 1635 v. S Abdul Rahman Pak Shaik Abdul Kader (Encl 1) pg 1

MOO HON YEE

v.
S ABDUL RAHMAN PAK SHAIK ABDUL KADER (ENCL 1)

High Court Malaya, Shah Alam

Wong Kian Kheong J
[Originating Summons No: BA-24NCVC-252-03/2018]
31 December 2018

Legislation referred to:

National Land Code 1965, ss 5, 89(a), (b), 109(2)(a), (b), 127(1)(a), (b),
(1A)(a), (b), 145(1)(a)

Counsel:
For the plaintiff: Fauziana Mohd Bharil; M/s Ng Choo Beng R Naidu & Partners
For the defendant: Siti Zawiah Ruslan; M/s Siti Zawiah & Co

[Order accordingly.]

JUDGMENT

Wong Kian Kheong J:

(Court Enclosure No 1)

A. Introduction

[1] This case concerns a piece of land held under Mukim Grant 7302, Lot
9009, s 2, Sabak Town, Sabak Bernam District (Land). The Land is owned by
the following two co-proprietors:

(1) the plaintiff owns an undivided % share of the Land (plaintiff's

undivided share); and

(2) an undivided % share of the Land belongs to the defendant

(defendant's undivided share).

[2] According to the "Issue Document of Title" of the Land (IDT)-

(1) the category of land use is agriculture; and

(2) there is an express condition that the Land is used for the
cultivation of coconuts (Express Condition).

[3] In this originating summons (OS), the plaintiff applies to Court for the
following orders, among others:
 Moo Hon Yee
pg 2 v. S Abdul Rahman Pak Shaik Abdul Kader (Encl 1) [2018] MLRHU 1635

(1) a termination of the co-proprietorship of the Land (Co-

Proprietorship); and

(2) the Land shall be partitioned according to a plan of the Land

exhibited in an affidavit affirmed by the plaintiff in support of the OS
(plaintiff's plan).

B. Issues

[4] The following questions arise in this case:

(1) what is the Court's discretionary power under s 145(1) and (2)(a) to
(c) of the National Land Code (NLC)?; and

(2) whether the Court may exercise its discretion under s 145(1) and
(2)(a) to (c) NLC-

(a) without expert evidence from a qualified and practising

land valuer (Valuer); and

(b) based on the defendant's breach of the Express Condition.

C. Plaintiff's Case

[5] The plaintiff's learned counsel has advanced the following submission in
support of the OS:

(1) the plaintiff had bought the plaintiff's undivided share from a third
party;

(2) the plaintiff had applied to the Land Administrator (LA) (defined
in s 5 NLC) to partition the Land based on the plaintiff's plan
[Application (LA)]. The Application (LA) was objected to by the
defendant. Consequently, the LA held an enquiry to decide the
Application (LA). After such an enquiry, the Application (LA) was
dismissed. Hence, this OS is filed;

(3) the OS should be allowed on the following grounds-

(a) upon a termination of the Co-Proprietorship-

(i) both parties can develop their own partitioned parts

of the Land (proposed partitioned land). In this
manner, the value of the proposed partitioned land
will be enhanced; and

(ii) both parties are free to deal with the proposed

partitioned land as they see fit;
 Moo Hon Yee
[2018] MLRHU 1635 v. S Abdul Rahman Pak Shaik Abdul Kader (Encl 1) pg 3

(b) the plaintiff's plan provides for full access to the defendant's part of
the proposed partitioned land [defendant's proposed land (plaintiff's
plan)]. This is because the defendant's proposed land (plaintiff's plan)
is adjacent to a main road; and

(c) the plaintiff's plan does not prejudice the defendant because-

(i) the area of the defendant's proposed land (plaintiff's plan) is

equivalent to the area of the defendant's undivided share; and

(ii) the defendant's building is situated in the defendant's

proposed land (plaintiff's plan). As such, there is no
interference with the use and enjoyment of the defendant's
building;

(4) the plan exhibited in the defendant's affidavit (defendant's plan)

cannot be accepted because based on the defendant's plan, the
plaintiff's proposed land [plaintiff's proposed land (defendant's plan)]
will be in a "Z" shape and cannot therefore be developed; and

(5) the defendant's building is used as a grocery shop. The defendant

also has a store on the Land. The defendant's use of the building and
store is contrary to the Express Condition.

D. Defendant's Case

[6] The defendant opposes the OS for the following reasons:

(1) the defendant's building is used as-

(a) the sole abode for the defendant and his family for more
than 64 years; and

(b) a grocery shop.

Part of the defendant's building is situated in the plaintiff's proposed

land based on the plaintiff's plan [plaintiff's proposed land (plaintiff's
plan)]. If this OS is allowed, part of the defendant's building has to be
demolished. As the defendant's building is a wooden structure, the
entire building may have to be demolished;

(2) the defendant has a store which is situated in the plaintiff's

proposed land (plaintiff's plan). The store has to be demolished if the
Court allows the OS; and

(3) if the Court terminates the Co-Proprietorship, the plaintiff did not
offer any compensation for the defendant's loss as follows-

(a) the loss of residence for the defendant and his family;
 Moo Hon Yee
pg 4 v. S Abdul Rahman Pak Shaik Abdul Kader (Encl 1) [2018] MLRHU 1635

(b) the loss of the defendant's grocery business;

(c) the defendant has planted coconut and fruits on the Land;
and

(d) the defendant will lose the use of the store; and

(4) the defendant's proposed land (plaintiff's plan) is next to a small

lane (not a main road). As such, the value of the defendant's proposed
land (plaintiff's plan) will be lower than the present value of the
defendant's undivided share. In this sense, the defendant will be
adversely affected by a termination of the Co-Proprietorship.

E. Court's Power Under Section 145 NLC

[7]Section 145 NLC provides as follows:

" Power of Court to facilitate termination of co-proprietorship145(1)

Where, in the case of any land vested in co-proprietors -

(a) any of the co-proprietors will neither join in, nor consent to
the making of, an application for partition under this Chapter, or

(b) by reason of the operation of paragraph (f) of subsection (1) of

s 136 (as applied by s 141), partition of the land between all of the
co-proprietors is incapable of being approved under this Chapte,

the Court, subject to and in accordance with the provisions of any law for
the time being in force relating to civil procedure, may, on the application
of any of the co-proprietors, make such order as it may think just for the
purpose of enabling the co-proprietorship to be terminate.

(2) Without prejudice to the generality of the power conferred by

subsection (1), the Court may on any application under that subsection
order-

(a) that, subject to the making between the co-proprietors of such

payments as the Court may consider equitable having regard to
the comparative values of the individual portions thereby
proposed, any application for partition made by one or more of
the co-proprietors in the terms specified in the order shall be
deemed for the purposes of this Chapter to have been made by
them all;

(b) t hat the undivided share of any of the co-proprietors be

transferred on the terms specified in the order to the other co-
proprietors, or to any of them; or
 Moo Hon Yee
[2018] MLRHU 1635 v. S Abdul Rahman Pak Shaik Abdul Kader (Encl 1) pg 5

(c) that the land be sold.'

(emphasis added).

[8] I am of the following view regarding s 145 NLC:

(1) the Court has power to hear an application by a co-proprietor of

land under s 145 NLC (s 145 Application) even if the co-proprietor has
not applied to the LA to partition the land under ss 141A or 142(1)
NLC - please see the Court of Appeal's decision delivered by Zaharah
binti Ibrahim JCA (as she then was) in Datin Sohaila bt Adom (wakil
diri bagi Adom bin Haji Ma'adil, simati) v. Einstein Tay [2016] MLRAU
243, at paras 25-43. It is to be noted that Datin Sohaila has-

(a) approved the High Court's decision in Ku Yan bte Ku

Abdullah v. Ku Idris bin Ku Ahmad & Ors [1991] 2 MLRH
310; [1991] 3 MLJ 439; [1991] 3 CLJ 73; and

(b) overruled the High Court's judgment in S Subramaniam &

Ors v. Inderjit Kaur Karnail Singh & Anor [1997] 3 MLRH 70;
[1997] 3 MLJ 366; [1997] 3 CLJ 746;

(2) a s 145 Application can only be made by a co-proprietor of land

(X) if X fulfils either one of the following two alternative pre-
conditions under s 145(1)(a) or (b) NLC (Pre-Condition)-

(a) the other co-proprietor of land (Y) did not join in or consent to X's
application to partition the land under Chapter 2 of Part 9 NLC
(partition of land) [Cap 2 (Part 9)] - s 145(1)(a) NLC.

I refer to the following Court of Appeal cases regarding

compliance with s 145(1)(a) NLC-

(i) in Datin Sohaila bt Adom, at paras 55-59, the

Court of Appeal held that a co-proprietor of land had
complied with s 145(1)(a) NLC when he had sent
letters to the other co-proprietors which sought the
latter's consent to his application to partition the land
and there was no reply by the latter; and

(ii) Alizatul Khair JCA (as she then was) upheld the
High Court's dismissal of a s 145 Application in Koh
Heng Jin Holdings Sdn Bhd v. Phuah Beng Chooi @
Koh Kim Kee & Anor [2016] 2 MLRA 324; [2016] 3
CLJ 837; [2016] 3 AMR 445, at paras 26 and 28, on
the ground that, among others, there was no evidence
of any request by the plaintiff to the defendant for the
land in question to be partitioned; or
 Moo Hon Yee
pg 6 v. S Abdul Rahman Pak Shaik Abdul Kader (Encl 1) [2018] MLRHU 1635

(b) any application to partition the land pursuant to Cap 2 (Part 9)

cannot be approved according to s 136(1)(f) NLC - please see s
145(1)(b) NLC and Koh Heng Jin Holdings Sdn Bhd, at paras 27 and
28. I reproduce the relevant part of s 136(1)(f) NLC below-

"Conditions for approval of sub-division

136(1) No sub-division shall be approved by the State Director

or, as the case may be, Land Administrator unless the
following conditions are satisfied-

(f) that the area of any sub-divisional portion-

(i) in the case of land subject to the category

"agriculture", or to any condition requiring its use for
an agriculture purpose, will not be less than two-fifths
of a hectare, and

(ii) in any other case, will not be less than the

minimum area appropriate for land of the class or
description in question, as determined for the
purposes of this sub-paragraph by the planning
authority for the area in which the land is situated or
(if there is no such authority) by the State Authority;".

Section 145(1)(b) NLC has been invoked by Low Hop Bing J (as he
then was) in the High Court in Koh Boh Huat & Ors v. Tan Niam Neo
& Anor [2006] 4 MLRH 505; [2007] 1 MLJ 328, at paras 1114;

(2) if the Pre-Condition is satisfied, the Court has a discretion to allow

a s 145 Application - please see Abdul Aziz Abdul Rahim JCA's
decision in the Court of Appeal case of Young Yean Chin & Ors v.
Quek Yak Kang & Ors [2016] MLRAU 512; [2016] 6 CLJ 860, at para
17. The exercise of the Court's discretion to allow or dismiss a s 145
Application is necessarily dependent on the particular facts of the case
in question. Accordingly, cases on s 145 Applications do not
constitute binding legal precedents from the view point of the doctrine
of stare decisis;

(3) if the Court terminates a co-proprietorship, the Court has a

discretionary power to make any one of the following consequential
orders (Consequential Order)-

(a) the land may be partitioned (Partition Order). A Partition

Order may be made because the Court has a discretion under s
145(1) to "make such order as it may think just for the purpose
of enabling the co-proprietorship to be terminated";
 Moo Hon Yee
[2018] MLRHU 1635 v. S Abdul Rahman Pak Shaik Abdul Kader (Encl 1) pg 7

(b) an order that a sum of money shall be paid by one co-

proprietor to another co-proprietor (Compensation Order) and
upon such a payment, an application to the LA to partition
the land by one co-proprietor in the terms specified in the
Compensation Order shall be deemed for the purposes of Cap
2 (Part 9) to have been made by all the co-proprietors - please
see s 145(2)(a);

(c) an undivided share of one co-proprietor may be transferred

on terms specified in an order to the other co-proprietor
(Transfer Order) - please see s 145(2)(b); or

(d) the land be sold under s 145(2)(c) NLC (Sale Order);

(4) to assist the Court to decide whether to allow a s 145 Application

and if so, which Consequential Order should be made, an applicant
has the evidential burden under s 102 of the Evidence Act 1950 (EA)
to adduce expert evidence from a qualified and practising land
surveyor (Surveyor) and Valuer because-

(a) if a Partition Order is applied for, a Surveyor's plan on the

proposed partition of the land is required. This is because if a
Partition Order is made based on the plan in question,
separate titles for the partitioned parts of the land shall be
subsequently issued by the-

(i) LA (concerning Land Office titles); or

(ii) Registrar of Titles (regarding Registry titles)

- based on the Surveyor's plan; and

(b) a valuer's expert view may assist the Court regarding the
following matters-

(i) whether it is just for the Court to allow a s 145

Application; and

(ii) if the Court allows a s 145 Application, whether

the Court should make the following Consequential
Order-

(iia) a Partition Order;

(iib) a Compensation Order;

(iic) a Transfer Order; or

 Moo Hon Yee
pg 8 v. S Abdul Rahman Pak Shaik Abdul Kader (Encl 1) [2018] MLRHU 1635

(iid) a Sale Order; and

(5) section 25(2) of the Courts of Judicature Act 1964 (CJA) and of the
Schedule to CJA (para 3) provide as follows-

"25(2) CJAWithout prejudice to the generality of subsection (1)

the High Court shall have the additional powers set out in the
Schedule:

Provided that all such powers shall be exercised in accordance

with any written law or rules of court relating to the same.

Paragraph 3 Partition of land

Power to direct a sale instead of partition in any action for

partition of land; and in any cause or matter relating to land,
where it appears necessary or expedient, to order the land or any
part thereof to be sold, and to give all necessary and
consequential directions. "

(emphasis added).

The Court cannot apply para 3 contrary to s 145 NLC. This is due to
the following two reasons-

(a) section 25(2) CJA provides that the High Court shall have
additional powers set out in the Schedule to CJA (which
includes para 3). The proviso to s 25(2) CJA (Proviso)
however states that the powers set out in the Schedule to CJA
"shall be exercised in accordance with any written law".
Accordingly, based on the Proviso, para 3 is subject to
"written law", namely para 3 is subject to s 145 NLC. I rely on
the following 2 Federal Court judgments delivered by Suffian
LP regarding the effect of the Proviso-

(i) Damodaran v. Vasudevan [1975] 1 MLRA 360;

[1975] 2 MLJ 231, at 232; and

(ii) Public Prosecutor v. Lim Shui Wang & Ors [1978] 1

MLRA 212; [1979] 1 MLJ 65, at 66; and

(b) NLC is intended by Parliament to be a code of law which

is comprehensive. As such, s 145 NLC can only be interpreted
based on the ordinary meaning of the words contained therein
without any reference to para 3 - please see the Court of
Appeal's judgment given by Gopal Sri Ram JCA (as he then
was) in Ibrahim Ismail & Anor v. Hasnah Puteh Imat & Ors
[2003] 2 MLRA 383, [2004] 1 MLJ 525, [2004] 1 CLJ 797 at
 Moo Hon Yee
[2018] MLRHU 1635 v. S Abdul Rahman Pak Shaik Abdul Kader (Encl 1) pg 9

805-806, [2004] 2 AMR 253.

F. Conclusiveness Of Land Register

[9] In this case, there is no dispute that the IDT reflects the 11 register
document of title" of the Land (RDT) (RDT is defined in s 5 NLC). Both the
plaintiff and defendant have relied on sale and purchase agreements (SPA's)
regarding the Land. For the purpose of deciding the OS, this Court can only
consider RDT and not the SPA's. This is clear from s 89(a) and (b) NLC which
provide as follows:

"Conclusiveness of register documents of title

89. Every register document of title duly registered under this Chapter
shall, subject to the provisions of this Act, be conclusive evidence-

(a) that title to the land described therein is vested in the person
or body for the time being named therein as proprietor; and

(b) of the conditions, restrictions in interest and other provisions

subject to which the land is for the time being held by that person
or body, so far as the same are required by any provision of this
Act to be specified to referred to in that document. "

(emphasis added).

G. Has OS fulfilled Pre-Conditio?

[10] I am satisfied that this OS has fulfilled the Pre-Condition in s 145(1)(a)

NLC. This is because the defendant has resisted the Application (LA). Hence,
the defendant did not join in or consent to the making of the plaintiff's
application for partition under Cap 2 (Part 9) within the meaning of s 145(1)(a)
NLC.

H. Whether Expert Evidence Is Required

[11] The plaintiff did not adduce any expert evidence regarding the present
market values of the plaintiff's proposed land (plaintiff's plan) and defendant's
proposed land (plaintiff's plan). In such a situation-

(1) the Court is unable to decide whether it is just to terminate the Co-
Proprietorship; and

(2) if it is just to terminate the Co-Proprietorship, what is the

appropriate Consequential Order to be made in this case.

[12] In view of the above failure by the plaintiff, I dismiss this OS on the
following grounds:
 Moo Hon Yee
pg 10 v. S Abdul Rahman Pak Shaik Abdul Kader (Encl 1) [2018] MLRHU 1635

(1) the plaintiff has failed to discharge the legal burden under s 101(1)
and (2) EA to satisfy the Court that it is just to terminate the Co-
Proprietorship pursuant to s 145(1) NLC; and

(2) the plaintiff has failed to satisfy the evidential onus according to s
102 EA to adduce expert valuation evidence regarding the proposed
partition of the Land.

I. Can Court consider breach of Express Conditio?

[13]Sections 109(2)(a), (b), 127(1)(a), (b), (1A)(a) and (b) NLC provide as
follows:

"Conditions, etc., applicable on alienatio.

109(2)Land to which this section applies shall become subject on

alienation to the following conditions and restrictions in interest -

(a) such express conditions and restrictions in interest (if any) as

are then endorsed on the document of title thereto (or referred to
therein), being conditions and restrictions imposed by the State
Authority under the powers conferred by ss 120 to 122;

(b) the conditions implied by s 114, by s 115, 116, or 117

(according to the category of land use to which the land is
subject) and, where applicable, by s 11.

Liability to forfeiture for breach of condition

127(1)Upon any breach arising of any condition to which any alienated

land is for the time being subject -

(a) the land shall become liable to forfeiture to the State

Authority, and

(b) except in a case where a fine is imposed under subsection

(1A), or where action for the purpose of causing the breach to be
remedied is first required to be taken under s 128, the Land
Administrator shall proceed with the enforcement of the
forfeiture in accordance with the provisions of s 129.

(1A)(a) Upon any breach as is referred to in sub-section (1)

arising, the Land Administrator may, instead of taking action
under s 128 or 129, serve a notice in Form 7E upon the
proprietor, requiring him to show cause why a fine should not be
imposed in respect of such breac.

(b) Upon failure by the proprietor to show cause to the

satisfaction of the Land Administrator, the Land Administrator
may make an order for the payment of a fine of not less than five
 Moo Hon Yee
[2018] MLRHU 1635 v. S Abdul Rahman Pak Shaik Abdul Kader (Encl 1) pg 11

hundred ringgit, and in the case of a continuing breach, a further

fine of not less than one hundred ringgit for each day during
which the breach continues. "

(emphasis added).

[14] The Express Condition is conclusive under s 89(b) NLC. I am of the view
that when the defendant operates a grocery shop on the Land, this breaches
the Express Condition under s 109(2)(b) NLC (defendant's breach). The
defendant's breach has the following adverse consequences for both the
plaintiff and defendant:

(1) both the plaintiff and defendant are liable to a fine by the LA under
s 127(1A)(a) and (b) NLC; or

(2) the Land is liable to be forfeited to the State Authority pursuant to

s 127(1)(a) and (b) NLC.

[15] In deciding a s 145 Application, any breach of condition of land use,

whether express or implied, by any co-proprietor of land, may be considered
by the Court. This is because such a breach may adversely affect the "innocent
co-proprietor and may be a reason for the filing of a s 145 Application. Having
said that, in this case the defendant's breach in itself does not constitute a
sufficient ground to allow the OS. This is because the plaintiff's failure to
adduce a valuer's expert evidence regarding the present market values of the
plaintiff's proposed land (plaintiff's plan) and defendant's proposed land
(plaintiff's plan) is fatal to this OS - please see the above paras 11 and 12.

J. Court's Decision

[16] Based on the above reasons, the OS is dismissed with costs. I should add
that both parties are at liberty to make a fresh s 145 Application (supported by
credible expert evidence from a Surveyor and Valuer).