Lim Kim Joo

[2021] MLRHU 1654 v. Pentadbir Tanah Seberang Perai Selatan & Ors pg 1

LIM KIM JOO

v.
PENTADBIR TANAH SEBERANG PERAI SELATAN & ORS

High Court Malaya, Pulau Pinang

Tun Abd Majid Tun Hamzah J
[Originating Summon No: PA-24NCVC-782-09-2019]
14 August 2021

Case(s) referred to:

Paya Terubong Estates Sdn Bhd v. Pusaka Warisan Sdn Bhd [1998] 1 MLRA 228;
[1998] 2 MLJ 463; [1998] 2 CLJ 909; [1998] 3 AMR 2356 (refd)
Registrar of Titles, Johore v. Temenggong Securities Ltd [1976] 1 MLRA 180;
[1976] 2 MLJ 44 (refd)
Tan Soo Bing & Ors v. Tan Kooi Fook [1996] 2 MLRA 164; [1996] 3 MLJ 547;
[1997] 1 CLJ 556; [1997] 1 AMR 249 (refd)

Legislation referred to:

National Land Code 1965, ss 320, 321(3), (b), 418
Penal Code s 420

Counsel:
For the plaitiff: M/s Afiq Aziz & Co
For the defendants: Penang Legal Adviser

[Dismissed the application with costs.]

JUDGMENT

Tun Abd Majid Tun Hamzah J:

[1] The plaintiff being the proprietor of 2 pieces of land namely GM 268 Lot
785 and GM 114 Lot 536, Mukim 8, Daerah Seberang Perai Selatan, Pulau
Pinang vide enclosure 6 ("Application") sought for-

1.1 Suatu perintah pembatalan Kaveat Pendaftar, Perserahan No

718/2014 (No. Pers 0703B2014000718) bertarikh 19 August 2014 ke
atas tanah-tanah yang dikenali sebagai GM 268 Lot 785 & GM 114
Lot 536 Mukim 08 Daerah Seberang Perai Selatan, Pulau Pinang;

2. Kos; dan

1.3 Sebarang perintah atau relif lanjut yang difikirkan oleh Mahkamah
yang Mulia ini sebagai patut, munasabah dan adil dalam keadaan ini.

[2] The background facts are as follows. The applicant is the proprietor of 2
pieces of land namely GM 268 Lot 785 and GM 114 Lot 536 Mukim 08
 Lim Kim Joo
pg 2 v. Pentadbir Tanah Seberang Perai Selatan & Ors [2021] MLRHU 1654

Daerah Seberang Perai Selatan, Pulau Pinang ("property"). On 19 August

2014 a Registrar's caveat was entered on the property owing to a police
investigation in relation to Nibong Report 3485/14. Subsequently the
applicant was charged with cheating under s 420 of the Penal Code. He was
acquitted and discharged on 6 March 2018 and there was no appeal against the
said decision. Notwithstanding this development the said caveat remains until
todate.

[3] The learned counsel for the plaintiff submitted that there was no reason or
ground to maintain the said caveat as the plaintiff was acquitted and the
prosecution did not appeal against the said decision. It was further pointed out
that the so-called previous proprietor has not until todate taken any civil action
in respect of the said property. The reason offered by the police for
maintaining the said caveat namely that the plaintiff had obtained
proprietorship by fraud and that the investigation is still being carried out
could not be justified. Reference was made to Paya Terubong Estates Sdn Bhd
v. Pusaka Warisan Sdn Bhd [1998] 1 MLRA 228; [1998] 2 MLJ 463; [1998] 2
CLJ 909; [1998] 3 AMR 2356 where it was held that it was inequitable to
prevent a man from dealing with his property after a long delay. It was further
submitted that there was an infinite denial of the plaintiff's right to deal with
his property.

[4] The learned Federal Counsel in response pointed out that the police
investigation is still ongoing. Exhibit RO-5 dated 27 September 2019
confirmed this fact. Thus, she submitted that the said caveat ought to remain.
It was further submitted that the plaintiff should have made an application
under s 321(3)(b) of the National Land Code 1965 ("NLC") to lift the said
caveat and appeal to the High Court if his application is unsuccessful. The
plaintiff cannot adopt the current mode to have the said caveat removed. She
submitted that the High Court has no jurisdiction to deal with this matter and
in support she cited the case of Tan Soo Bing & Ors v. Tan Kooi Fook [1996] 2
MLRA 164; [1996] 3 MLJ 547; [1997] 1 CLJ 556; [1997] 1 AMR 249.

[5] She further relied on Registrar of Titles, Johore v. Temenggong Securities

Ltd [1976] 1 MLRA 180; [1976] 2 MLJ 44 where the Privy Council held that
the Registrar can only act upon the information available to him and here
clearly the Registrar relied on the information provided by the police. In
addition the learned Federal Counsel submitted that there was nothing to
show that the prosecution against the plaintiff was in fact in relation to Nibong
Report 3485/14 particularly so when the plaintiff was acquitted and
discharged on 6 March 2018 but the letter from the police confirming the
ongoing investigation was dated 27 September 2019.

Decision

[6] Section 320 of the NLC provides as follows:

"(1) Subject to sub-section (2), a Registrar's caveat may be entered in

respect of any land wherever such appears to the Registrar to be
necessary or desirable-
 Lim Kim Joo
[2021] MLRHU 1654 v. Pentadbir Tanah Seberang Perai Selatan & Ors pg 3

(a) for the prevention of fraud or improper dealing; or

.....".

And subsection 321(3) of the NLC provides:

"A Registrar's caveat shall continue in force until it is cancelled by the

Registrar-

(a) of his own motion; or

(b) on an application in that behalf by the proprietor of the land

affected; or

(c) pursuant to any order of the Court made on an appeal under s 418
against his decision to enter the caveat, or his refusal of any
application for its cancellation under paragraph (b).".

[7] It is therefore clear the plaintiff must apply to the Registrar to have the
Registrar's caveat removed and if his application is refused he has the remedy
in the form an appeal to the High Court pursuant to s 418 of the NLC which
reads as follows:

"(1) Any person or body aggrieved by any decision under this Act of
the State Director, the Registrar or any Land Administrator may, at
any time within the period of three months beginning with the date on
which it was communicated to him, appeal therefrom to the Court.

(2) Any such appeal shall be made in accordance with the provisions
of any written law for the time being in force relating to civil
procedure; and the Court shall make such order thereon as it considers
just.

(3) In this section "decision" includes any act, omission, refusal,

direction or order.".

[8] I find no evidence that the plaintiff did make any application to the
Registrar instead he filed this application to the High Court to remove the
caveat. Obviously this Court has no jurisdiction to hear this application as
decided in Tan Soo Bing (supra) where Wan Adnan Ismail FCJ at p 565 said:

"In our view under the special provisions pertaining to Registrar's

caveat in ss 319, 320 and 321 of the Code it is clear that a person who
desires to have a Registrar's caveat entered in respect of any land must
apply to the Registrar. If the Registrar refuses his application his
remedy is to appeal to the Court against such refusal. He cannot go
straight to the Court. In our view the Court has no jurisdiction to
entertain such an application. The Court only has appellate
 Lim Kim Joo
pg 4 v. Pentadbir Tanah Seberang Perai Selatan & Ors [2021] MLRHU 1654

jurisdiction under s 418. Under s 418 the Court may reverse the
decision of the Registrar and direct the Registrar to enter the
Registrar's Caveat.".

[9] I would say that on this ground alone the application should be dismissed.

[10] Be that as it may the plaintiff claimed that the prosecution instituted
against him was in connection with Nibong Report 3485/14 which report was
the basis of the investigation which in turn constituted the ground for the
lodgement of the Registrar's caveat. However, nowhere in his affidavit or
exhibits produced indicate that the criminal charges against him were in
connection with the said police report. Therefore, on this ground too I hold
that the Registrar's caveat should be maintained. The Court was not appraised
of the nature of the charges or the facts presented in the Magistrate's Court.
Whether it was in relation to the allegation that he obtained ownership of the
said property by fraud as stated in Form 19F or rather as reflected in the letter
dated 27 September 2019 (exhibit RO-5) or something else.

[11] For the aforesaid reasons I dismissed the Application with costs.