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MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK AT KUCHING
[ORIGINATING SUMMONS NO. SRA-24-4/11-2015]

IN THE MATTER of O. 5 r. 3 Rules Of

Court 2012

AND

IN THE MATTER of Application for

issuing of document of title in respect of
that parcel of land situate at Tanjong
Belanga, Spaoh and described as Lot
149 Block 10 Paku Land District.

AND

IN THE MATTER of Revocation of

Letters of Administration in respect of
the Letters of Administration dated the
13th November, 2006. under Probate
Matter No. 43/2006 Vol. 19 issued to
BOT BINTI ABG MAN (f) (WN. KP. No.
250502-13-5058)

AND

IN THE MATTER of Section 117 of the

Sarawak Land Code (Chapter 81) and
Section 32 Administration of Estates
Ordinance (Chapter 80).

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BETWEEN

WAN UJANG @ WAN ALI TUANKU SAIT

[480925-13-5341] … PLAINTIFF

AND
1. GOVERNMENT OF SARAWAK
2. THE SUPERINTENDENT,
LANDS & SURVEY DEPARTMENT BETONG
3. PROBATE OFFICER
4. ABG HENDI HAJI ABANG ZAINI ... DEFENDANTS

BEFORE THE HONOURABLE JUDGE

YA TUAN STEPHEN CHUNG HIAN GUAN

IN CHAMBERS

RULING
1. By an Originating Summons (OS) dated 12.11.2015, the Plaintiff
prayed as follows:

(1) that the Sarawak Government do issue a document of title in

respect of the land stated in the schedule in the OS to the Plaintiff;

(2) that the Assistant Registrar of the Betong Land Registry Office do
register the Plaintiff as the proprietor of that parcel of land stated in the
schedule; and

(3) that the Probate Officer of Spaoh shall revoke the Letters of
Administrations dated 13 November 2006 issued to Bot binti Abg Man
forthwith.

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The grounds for the application are set out in the affidavit in support
affirmed by the Plaintiff.

2. By Encl. 4, the 1 st , 2 nd and 3 rd Defendants applied that the Plaintiff’s

claim against them be struck out pursuant to O. 18 r. 19(1)(a) and (b)
and O. 90 r. 4 of the Rules of the Court 2012. The grounds of the
application are that;

(1) the relief sought should have been by way of judicial review;

(2) that the Plaintiff’s action is barred by limitation;

(3) that the Plaintiff’s action discloses no reasonable cause of action;

and

(4) that the Plaintiff’s action is otherwise an abuse of the process of the
court.

3. In his affidavit, the Plaintiff said that in 1960 the family members of
Abang Endang bin Abang Enjup agreed to surrender their rights to a
parcel of land described as Lot 149 Block 10 Paku Land District so that
he could sell it and use the proceeds to perform the Haj. He said the
land was sold to Wan Syed b Tku Bujang (WSTB) and Dayang Yam bt
Abang Enjup (DYAE). In 1991 he was appointed the administrator of
the estates of WSTB and DYAE.

4. He said on 23.9.1994 he applied for a replacement title at the Lands &

Surveys, Sri Aman. On 22.4.2005 he applied for renewal of the land at

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the Lands & Surveys at Betong but the Assistant Registrar never
replied to his application. He found out that instead on 13.11.2006 the
Probate Officer at Spaoh issued a letters of administration to Bot binti
Abang Man as a beneficiary of the estates of Abg. Bukut bin Abang
Enjup in respect of the same parcel of land.

5. The Plaintiff claimed to be entitled to this parcel of land as the

beneficiary of the estates of WSTB and DYAE and applied that the
Court orders (1) the 1 st Defendant to issue a document of title to the
Plaintiff in respect of this parcel of land; (2) the 2 nd Defendant to
register the Plaintiff as the proprietor of the land; and (3) the 3 rd
Defendant to revoke the letters of administration issued to Bot binti
Abg Man.

6. The Plaintiff submitted that the 2 nd Defendant and or the Assistant

Registrar of the Betong Land Registry Office, being public officers,
never made any decision regarding the Plaintiff’s application for
renewal of the said land and therefore there is no necessity for the
Plaintiff to apply for judicial review. The Plaintiff submitted that there
are no merits to the 1 st , 2 nd and 3 rd Defendants’ application.

7. It should be noted that the Plaintiff did not produce or exhibited any
sale and purchase agreement or transfer between Abg Bukut bin Abg
Enjup and WSTB and DYAE. The Plaintiff did not allege that there was

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a trust or that Abg Bukut bin Abg Enjup held the land on trust on their
behalves. The Plaintiff did not produce or exhibited any land title to
show that they were or are the registered land owner of this parcel of
land or any trust in respect of the land. Exhibit WU-1 showed that the
letters of administration issued to him was in respect of Lot 94 Block
13 of Paku Land District and not Lot 149 Block 10 of Paku Land
District. The Plaintiff did not exhibit any letters of administration in the
estates of DYAE issued to him.

8. Based on the documents exhibited, namely the Occupation Ticket

15266 (WU-5) and extracts of title (WU-13 and WU-14), this parcel of
land was issued to and registered in the name of Abg Bukut bin Abg
Enjup on 21.12.1935 for 60 years and to expire on 20.12.1995. On
3.9.1996 the land reverted to the State and replaced by Lot 149 Block
10 Paku Land District with a new land title issued on 24.7.1995 which
was registered in the name of Abg Bukut bin Abg Enjup on
19.12.1995.

9. These raised serious doubts to his claim that he is entitled to this

parcel of land pursuant to the letters of administration. Based on the
documents exhibited by him, he has not shown that he has a
reasonable cause of action against all four Defendants in the OS.
These are issues of facts.

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10. Where there is a dispute of facts, an originating summons is not

suitable for deciding his claim to ownership of the land: see
Abdulmajid v. Haji Abdulrazak [1971] 2 MLJ 228; Re National
Union of Commercial Workers; Wong Yoon Leong & Ors v. S.
Balasingam & Ors [1974] 1 MLJ 172.

11. O. 72 r. 2(1) states that a probate action shall be begun by writ, and the
writ shall be issued out of the Registry. Before a writ beginning a
probate action is issued, it must be endorsed with a statement of the
nature of the interest of the Plaintiff and of the Defendant in the estate
of the deceased to which the action relates. A writ beginning an action
for the revocation of the grant of probate of the will or letters of
administration of the estate of a deceased person shall not be issued
unless a citation under rule 7 has been issued or the probate or letters
of administration, as the case may be, has or have been lodged in the
Registry: see O. 72 r. 2(2) and (3).

12. The Plaintiff has not shown that he has complied with these rules and
requirements. A probate action begun by originating summons is
improperly constituted: Re Sir Lindsay Parkinson & Co Ltd,
Settlement Trusts [1965] 1 AII ER 309. The Plaintiff did not join Bot
binti Abang Man as a party although he prayed for the probate to be
revoked. The OS ought to be struck out for abuse of the process of the
Court.

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13. The documents showed that the Occupation Ticket 15266 was
replaced by Lot 149 Block 10 Paku Land District and registered in the
name of Abg Bukut bin Abg Enjup in 1995. Although the Plaintiff
contended that WSTB and DYAE bought this parcel of land in 1960
and the title was wrongly issued to Abg Bukut bin Abg Enjup in 1995,
they should have taken action as soon as possible. However they did
not take any step or action against the 1 st , 2 nd and 3 rd Defendants until
now. There was no explanation for the excessive delay. Based on the
provisions of the Sarawak Limitation Ordinance and Public Authorities
Protection Act, limitations have set in and the Plaintiff’s claim against
the 1 st , 2 nd and 3 rd Defendants are statute-barred.

14. For the reasons given, there is no need to address the issue whether
the application should be by way of judicial review. The Plaintiff’s OS is
struck out against the 1st, 2nd and 3rd Defendants with costs of
RM1,000.00.

15. Although the 4 th Defendant has put in an affidavit in support of the

other Defendants’ application, the 4 th Defendant did not apply to strike
out the OS. The Plaintiff should seriously consider whether to withdraw
the OS against the 4th Defendant.

DATED: 30 JUNE 2016

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(STEPHEN CHUNG HIAN GUAN)

High Court Judge
Kuching

Counsel:

For the plaintiff - Ateng Jeros; M/s Ateng Jeros & Co

Advocates

For 1st, 2nd & 3rd defendants - Sharifah Shazzea; State Attorney
General Chambers

For the 4th defendant - Jubilant; M/s Fairuz & Jubilant

Advocates

Case(s) referred to:

Abdulmajid v. Haji Abdulrazak [1971] 2 MLJ 228
Re National Union of Commercial Workers; Wong Yoon Leong & Ors v.
S. Balasingam & Ors [1974] 1 MLJ 172
Re Sir Lindsay Parkinson & Co Ltd, Settlement Trusts [1965] 1 AII ER
309

Legislation referred to:

Rules of the Court 2012, O. 18 r. 19(1)(a), (b), O. 72 r. 2(1), O. 90 r. 4
Sarawak Limitation Ordinance and Public Authorities Protection Act

Notice: This copy of the Court’s Grounds of Ruling is subject to editorial revision.