1. ) Lee Ying Young v Pengarah Tanah dan Galian Wilayah Persekutuan, Kuala Lumpur (WA-24NCvC-4262-09/2023)

LEE YING YOUNG [NRIC No: 790919-10-5713]

FOONG LAI PHENG [NRIC No: 671106-10-6282]

FOONG KAM YEE [NRIC No: 640829-10-6487]

MESTI JUARA SDN BHD [COMPANY No: 454422-V]

NG ENG MENG [NRIC No: 651012-10-5221]

LEUNG CHUN HSIEN [NRIC No: 750920-12-5037]

POON WAI CHIN [NRIC No: 740219-14-5612]

TAN SOH FONG [NRIC No: 681022-10-6946]

KWAN WING CHONG [NRIC No: 701003-10-5521]

TIAH SEOW LING [NRIC No: 701105-04-5152] 01/07/2024 15:59:28

WONG PEI SHEER [NRIC No: 780705-14-5868]

HO HIN MEE [NRIC No: 661228-06-5387]

WONG KON CHONG [IC No: 5446169]

LOOI KWAI YING [NRIC No: 561104-10-5510]

THAN SOOK YEI [NRIC No: 850123-14-5412]

FONG YIT KEW [NRIC No: X390529-07-5018]

PUAN KONG MIN @ POON KONG HON [NRIC No: 390706-10-5039]

WONG LOKE HUAR [NRIC No: 700817-14-5069]

WONG LOKE LIM [NRIC No: 780307-14-6451]

WONG YEH FEN [NRIC No: 720520-14-5584]

CHUA CHEN HUNG [NRIC No: 430320-14-5066]

NG MEI HONG [NRIC No: 781214-14-5884]

KEVIN FOONG ZHEN HAO [NRIC No: 880729-56-5363] … APPLICANTS AND PENGARAH TANAH DAN GALIAN WILAYAH PERSEKUTUAN, KUALA LUMPUR … RESPONDENT GROUNDS OF JUDGMENT [1] The Applicants filed this Originating Summons (OS) to seek this Court’s order that the titles of their respective properties which was divided and duly issued to them be changed from leasehold to freehold. The properties are part of a housing project Taman Gembira which was developed by Sim Nam Housing Development Co Sdn Bhd on the lots iterated in the cause papers. The Applicants contended that based on the records at the Land Office Wilayah Persekutuan, remarks in the index showed that the respective lots were divided in the file PTG/WP 6/440/74. The Applicants believed that the initial status of the land before the lots were re-alienated and sub-divided was that of freehold. According to the Applicants, the developer had surrendered the title under s197 National Land Code (NLC) vide file PTG/WP 6/440/74 for the said process of re-alienation which was then subdivided into the lots to the respective Applicants with the status as leasehold. [2] Before the hearing of the OS, the Respondent had no objections as to the application by the Fifteenth and Sixteenth Applicants as they were from a separate master title. As such, this Court granted the order in terms for the Fifteenth and Sixteenth Applicants – their titles are ordered to be corrected to the status of freehold. The Third, Twenty-First, Twenty-Second and Twenty-Third Applicants wanted to withdraw their application vide the OS. This Court allowed the withdrawal with liberty to file afresh. The grounds of judgment concern the remaining Applicants who proceeded with this OS. This Court had dismissed the OS with costs of RM500. [3] The subject matter of the OS concerns the following land titles held by the Applicants: No Name Title No Lot No. 1 Lee Ying Young PM 4378 18521 2 Foong Lai Pheng & Foong Kam Yee PM 4379 18522 3 Mesti Juara Sdn Bhd PM 4406 18554 4 Ng Eng Ming PM 4384 18527 5 Leung Chun Hsein & Poon Wai Chin PM 4386 18529 6 Tan Soh Fong PM 4417 18565 7 Tan Soh Fong PM 4428 18579 8 Kwan Wing Chong & Tiah Seow Ling PM 4381 18524 9 Wong Pei Sheer PM 4404 18552 10 Ho Hin Mee PM 4400 18548 11 Wong Kon Chiong PM 4412 18560 12 Looi Wai Ying & Than Sook Yei PM 4413 18561 13 Fong Yit Kew & Puan Kong Min @ Poon Kong Hon PM 4296 18430 14 Wong Loke Huar, Wong Loke Lin & Wong Yeh Fen PM 4411 18559 [4] This Court agreed with the Respondent’s submissions that the Applicants had failed to discharge their evidential burden to prove that the status of the land was initially freehold. There is no evidence before this Court to corroborate the Applicants’ contention. Thus, the Applicants’ contention stemmed from their assumption and was speculative in nature. Reference was made to the Court of Appeal’s decision in Pengerang Farm Sdn Bhd v Pentadbir Tanah Daerah Kota Tinggi [2017] MLJU 214 on that point where at para 11 of the judgment it was held: “Notwithstanding the aforesaid, the applicant is asking for judgment on its claim for compensation. In law, the party who desires the court to give judgment as to any legal right or liability bears the burden of proof (s101(1) of the Evidence Act 1950). The burden of proof on that party is twofold: (i) the burden of establishing a case; and (ii) the burden of introducing evidence. The burden of proof lies on the party throughout the trial The standard of proof required of the claimant is on the balance of probabilities.” [5] It was not disputed that their respective titles were issued from the file PTG/WP 6/440/74. However, the Applicants had failed to show this Court on a balance of probabilities their contention that the initial status of the land before the re-alienation and sub-division was that of freehold. There is no evidence that supports this presumption. The Applicants submitted that there were no remarks that the initial status of the land was freehold. It was silent they had contended. Thus, they implored this Court to conclude that the status must be one of freehold before the re-alienation and sub-division. As such, the Applicants sought to have the sub-divided lands be classified as freehold and sought this Court to charge it from leasehold respectively. [6] This Court found that the Applicants had failed to establish on a balance of probabilities that the classification was freehold at the outset. This Court is bound by the principles laid down by the Federal Court in Letchumanan Chettiar Allagappan & Anor v Secure Plantation Sdn Bhd [2017] 5 CLJ 418 at paras 56, 57 and 60 of the judgment: “Thus, a plaintiff has both the burden of proof as well as the initial onus of proof. In Britestone Pte Ltd v Smith & Associates Far East Ltd [2007] 4 SLR 855, the Singapore Court of Appeal per VK Rajah JCA, delivering the judgment of the court explained that at the start of the plaintiff’s case the burden of proof and the onus of proof coincide: … at the start of the plaintiff’s case, the legal burden of proving the existence of any relevant fact that the plaintiff must prove and the evidential burden of some (not inherently incredible) evidence of the existence of such fact coincide. Upon adduction of that evidence, the evidential burden shifts to the defendant, as the case may be, to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, the court may conclude from the evidence of the defendant. If, on the other hand, evidence in rebuttal is adduced then the evidential burden shifts back to the plaintiff. If, ultimately, the evidential burden comes to rest on the defendant, the legal burden of proof of the relevant fact would have been discharged by the plaintiff. The legal burden of proof – a permanent and enduring burden – does not shift. A party who has the legal burden of proof on any issue must discharge it throughout. Sometimes, the legal burden is spoken of, in accurately, as “shifting”, but what is truly meant is that another issue has been engaged, on which the opposite party bears the legal burden of proof. The rule is that “the onus of proof of any particular fact lies on the party who alleges it, not on him who denies it, et incumbit probation qui decit, non qui neat, Actori incibit probation … The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect, the court will not assist him. Hence the maxim prtior est condition defendantis. A plaintiff cannot obviously advantage himself by the weakness of the defence. A plaintiff’s case must stand or fall upon the evidence adduced by him. When, however, the defendant, or either litigant party, instead of denying what is alleged against him, relies on some new matter which, if true, is an answer to it, the burden of proof changes sides; and he, in his turn, is bound to show a prima facie case at least and, if he leaves it imperfect, the court will not assist him. Reus excipendo fit actor” (Woodcliffe and Amir Ali, supra vol. 3 at pp 3190-3191) ~ It would pan out that the respondent, who was the plaintiff, had both the “burden of proof” to make out a prima facie case as well as the initial onus of proof to adduce evidence to prove the claim. The onus of proof would only shift to the appellants if the respondent had made out a prima facie case …” [7] In this case, the Applicants had failed to prove their contention – that the initial status of the land was of freehold and then it was changed to leasehold for 99 years. The Applicants’ argument that because the initial title did not state that it was freehold and thus must mean that the land was freehold, was untenable. It was a mere bare assertion premised on baseless conjecture. [8] This Court concluded that in the premises, the Applicants had failed to prove their case on a balance of probabilities. This OS is dismissed with costs of RM500. The arguments were heard together with the submissions for the originating summons of WA-24NCvC-4214-09/2023 [Chua Sew Hua & 13 Ors v Pengarah Tanah Dan Galian, Wilayah Persekutuan Kuala Lumpur] with regards to the applicants there except for the third applicant, the fifteenth and sixteenth applicants, the twenty first to twenty third applicants therein, as they were premised on the same cause of action and basis. The only difference were the applicants and their respective lots. DATED 30 JUNE 2024 ROZ MAWAR ROZAIN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA KUALA LUMPUR For the Appellants: Khairul Nazlee Mohd Nor, Farah Azizi together with Kevin Seow T/n Mimirahayu Haniff Heng & Partners For the Respondent: Darinee a/p