Ngu Leh Ngiik v Lee Yiu Ping (Q-02(NCVC)(A)-246-02/2017)

NGU LEH NGIIK

LEE MENG HEE (NRIC: 600717-13-5025) … APPELLANTS

LEE YIU PING

LEE NENG KING

LEE MENG TONG

LEE HUNG (NRIC: 680603-13-6209) … RESPONDENTS [In the matter of the High Court in Sabah and Sarawak at Sibu Originating Summons No. SBW-24NCVC-11/9-2015 In the matter of Sections 129 and 231 of the Sarawak Land Code (Cap.81) And In the matter of an application for the partition and sub-division of all that parcel of land situated at Bukit Mempidu Nangka, Seduan, Sibu containing an area of 1.74420 hectares, more of less and described as Sibu Occupation Ticket No. 35735 Civil Appeal No. Q-02(NCVC)(A)-246-01/2017 2 And In the matter of Orders 7 and 28 of Rules of Court 2012.

Lee Yiu Ping

Lee Neng King

Lee Meng Tong

Lee Hung (NRIC: 680603-13-6209) …

Ngu Leh Ngiik

Lee Meng Hee (NRIC: 600717-13-5025) … Defendants] CORAM TENGKU MAIMUN TUAN MAT, JCA YAACOB BIN HAJI MD SAM, JCA ZABARIAH BINTI MOHD YUSOF, JCA JUDGMENT OF THE COURT Introduction [1] This was an appeal by the appellants/defendants against the decision of the High Court in allowing the respondents’/plaintiffs’ originating summons (“OS”) for an order that the land containing an area of more or less 1.74420 Civil Appeal No. Q-02(NCVC)(A)-246-01/2017 3 hectares, described as Sibu Occupation Ticket No. 35735 (“the land”) be partitioned under section 129 of the Sarawak Land Code (“the Land Code”). For the reasons that follow, we had unanimously dismissed the appeal. Background Facts [2] The appellants and the respondents are the registered co-proprietors of the land, holding the following shareholdings:

The first appellant 57/240 shares

(ii) The second appellant 12/240 shares

(iii) The first respondent 57/240 shares

(iv) The second respondent 38/240 shares

The third respondent 38/240 shares

(vi) The fourth respondent 38/240 shares [3] The parties are related to one another. The second appellant and the second to the fourth respondents are cousins and the first and the second appellants are mother and son, whereas the first respondent is the uncle to the second appellant. [4] The appellants and the respondents had been using the land for decades. About 23 years ago, the first appellant constructed a brick wall house cum workshop while the second appellant had constructed an office cum workshop on the land. Similarly, about 20 years ago, the first respondent, with the consent of the other respondents, constructed a bungalow on the land. At all material time, neither party had objected to the usage of the land or to the location of the building/houses on the land. Civil Appeal No. Q-02(NCVC)(A)-246-01/2017 4 [5] On or about early 2013, the second respondent engaged a qualified licensed surveyor by the name of Wong Goh Ann to prepare a plan for the sub-division of the land into 2 plots/lots of land in accordance with the appellants’ and the respondents’ respective shareholdings. [6] The surveyor prepared a plan (exhibit A-1) for the sub-division, whereby the land is divided into Plot 1 and Plot 2. Plot 1 consists of an area of 4,827.31 square metres while Plot 2 consists of 12,611.00 square metres. There is an area of approximately 3.69 square metres reserved for SESCO for the purpose of a tower base site. In his plan exhibit A-1, the surveyor labelled the first appellant’s and the second appellant’s house cum workshop and office cum workshop respectively, as Plot 1 whilst the first respondent’s bungalow was labelled as Plot 2. [7] The plan exhibit A-1 also showed all existing roads, reserves and access-ways, the proposed roads, drains and location of drainage outlet and their alignments and dimensions and such other details as may be required by the State Planning Authority. [8] Exhibit A-1 was signed by all the co-proprietors as evident from exhibit A-3 and it was submitted to the Land and Survey Department, Sibu. The said plan exhibit A-1 was duly approved by the Land and Survey Department, Sibu on 26.9.2013 for purpose of agriculture (hereinafter exhibit A-1 will be referred to as the approved plan). The partition or sub-division could not however go through as the appellants, notwithstanding their earlier consent, objected to it and refused to allow the submission of the partition/sub-division of the land in accordance with the approved plan of sub-division. Hence the respondents’ application vide the OS. Civil Appeal No. Q-02(NCVC)(A)-246-01/2017 5 Proceedings in the High Court [9] Before the learned judge, the appellants tendered their own plan for sub-division marked as exhibit NLN-1 and they opposed the respondents’ OS on the following grounds:

That the appellants were deceived into signing exhibit A-3;

(ii) That the partition based on the approved plan reduced their shareholdings in the land;

(iii) That the consent of the appellants as the registered co-proprietors of the land is important and the absence of any such consent is fatal to the respondents application;

(iv) That the approved plan for sub-division no longer represented the wishes of the appellants since they first gave their consent;

That the approved plan no longer provided a right of way for the appellants, in particular for the second appellant to access his own building on the land from the main road; and

(vi) That the approved plan reclassified and amalgamated both the appellants’ several and undivided shares and interest in the land into one collective lot whereas the appellants wanted individual sub-lots for their own respective shareholdings. [10] The learned judge considered the relevant principles of law relating to the application for sub-division by considering section 129(1) and (3) of the Land Code. His Lordship found guidance in the cases of Ku Yan bte Ku Abdullah v Ku Idris bin Ku Ahmad & Ors [1991] 3 MLJ 439; Tan Kok Chiang v Tan Yaw Ti & Anor [2009] 1 LNS 711; KM S Kumarappan Chettiar v S. Ramasamy a/l KM S Chockalingam [2000] MLJU 464; GP De Silva & Ors v Civil Appeal No. Q-02(NCVC)(A)-246-01/2017 6 Chua Yam Thong [1962] 1 MLJ 236; and the English case of EG v EG [2012] IEHC 292. [11] Having considered the authorities and the appellants’ contentions, the learned judge disagreed with the appellants. In essence his Lordship ruled that consent of the appellants was not required and that the approved plan for partition was in accordance with the parties’ shareholdings. The learned judge further ruled that the appellants’ plan for partition could not be executed because of the statutory imposition of minimum of 1 acre for agricultural land and that the appellants’ plan contravened this requirement. The learned judge held that the only way partition could be done was for the land to be partitioned into two plots/sublots as per the approved plan. [12] The OS was consequently allowed by the learned judge and an order in terms thereof was granted. Aggrieved, the appellants appealed to this Court. The Appeal [13] The appellants argued that in allowing the respondents’ application, the learned judge erred in the following respects:

in disregarding the intention of section 129 of the Land Code;

(ii) in failing to appreciate that the appellants’ indefeasible right and interest in the land are undivided, inseverable and absolute; and

(iii) in resolving the conflicting allegations in the affidavits summarily. Civil Appeal No. Q-02(NCVC)(A)-246-01/2017 7 [14] Learned counsel for the appellants submitted that the decision of the learned judge in ordering the partition of the land is repugnant to section 129(1) and (3) of the Land Code; that by section 129(3), there shall be no partition of the land without the consent of all the co-proprietors and that it was clear from the affidavits that the earlier consent for partition or sub-division was not freely given by the appellants. Learned counsel further submitted that section 129(3) of the Land Code does not allow the court to exercise its discretionary power to order a partition and that the learned judge had erroneously relied on the cases which were wholly irrelevant to the OS. [15] Learned counsel had also submitted that by section 129(1) and 132(1) of the Land Code, the appellants’ undivided rights and interests in the land as the registered co-proprietors, is equally indefeasible against the respondents unless it is otherwise taken away with their free consent. [16] It was further submitted for the appellants that when they first gave their consent for the partition or sub-division of the land, they gave consent for the partition or sub-division in the manner set out in exhibit NLN-1 and not in the manner set out in exhibit A-1. Given the conflicting allegations as contended by the parties, learned counsel submitted that the learned judge ought to have converted the OS into a writ action. Our Decision [17] The primary issue for our determination was whether the learned judge erred in holding that consent is not required and is not mandatory under section 129 of the Land Code and whether the learned judge had the power to make an order for partition. Civil Appeal No. Q-02(NCVC)(A)-246-01/2017 8 [18] Section 129 of the Land Code provides: “129 Co-proprietorship

Except in the case of land held by trustees, when land is held by co-proprietors they shall be entitled to the land in undivided shares equally, or in such other proportion as may be registered, and, subject as hereinafter provided, any one of them may claim to have a partition of the land made: Provided that no partition shall be effected except in accordance with Part X and subject to such terms and conditions as may be imposed by the State Planning Authority.

No such partition of land subject to a charge or sublease shall be made unless the chargee or sublessee, as the case may be, shall in writing delivered to the Registrar have given his consent to such partition.

No such partition of land shall in any case be made unless either the consent of all the co-proprietors has been obtained or the same has been ordered by a competent court.”. [19] Part X of the Land Code laid down the procedure for application for sub-division/partition and section 231(1) of the Land Code provides that the sub-division plan has to be prepared by a qualified person on behalf of the proprietor. [20] Section 129 is very clear in its purport and intent, namely that it gives two options to an applicant to partition a land, i.e. first by mutual consent under the first limb and second by order of the court under the second limb. Given the clear wordings of section 129 of the Land Code, we found no appealable error on the part of the learned judge in concluding that from the Civil Appeal No. Q-02(NCVC)(A)-246-01/2017 9 literal reading of section 129(3), if the consent of all co-proprietors cannot be obtained, then any one of the co-proprietors is entitled to apply to the competent court, i.e. the High Court for an order for partition. [21] We agreed with the learned judge that he had the power to grant the order for partition under the second limb of section 129(3). Whether or not the co-proprietors gave their consent or whether or not the approved plan represented the wishes of the appellants were no longer relevant as the court was exercising its power to order the partition independent of the consent, which power is found not only under section 129(3) of the Land Code but under item 3 of the Schedule of the Courts of Judicature Act 1964 which reads: “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.”. [22] With respect, we were unable to accept the appellants’ submission that the phrase ‘the same has been ordered by a competent court’ in section 129(3) or to be specific the words ‘the same’ has to be read in reference to the consent of the co-proprietors for the application for partition of the land. In our judgment, the words ‘the same’ must be read to refer to the ‘partition of land’. To hold that the words ‘the same’ refer to consent of co-proprietors would render the second limb of section 129(3) of the Land Code redundant and otiose as the court could never make an order for partition if co-proprietors did not give their consent. And if the co-proprietors had given Civil Appeal No. Q-02(NCVC)(A)-246-01/2017 10 their consent, then the need for any of the co-proprietors to apply to the court for partition would never arise. [23] It is trite that legislature would not act in vain and that when the provisions of law are clear and does not admit of any ambiguity, then the provisions must be strictly interpreted (see Positive Vision Labuan Ltd v Ketua Pengarah Hasil Dalam Negeri and other appeals [2017] 2 MLJ 421). [24] We disagreed with learned counsel for the appellants that the learned judge had relied on the cases erroneously. Those cases were useful guidance for the learned judge to come to his decision on the OS. Even if one were to disregard the authorities, we found that the learned judge had correctly decided on the OS based on the clear provision of section 129(3) of the Land Code. [25] On the appellants’ contention that the learned judge ought to have converted the OS into a writ action, we opined that if indeed the appellants had seriously contended that the dispute should be resolved by a writ action, the proper time to raise this point would be during the proceedings at the High Court. The appellants however did not canvass this point in the High Court. We therefore found this point to be a mere afterthought and devoid of any merit. [26] In any event, the issue before the learned judge was simply whether in view of the appellants’ objection, it was fair and just to order for partition based on the approved plan. It must be borne in mind that the respondents’ plan was drawn up by a qualified surveyor and it had been approved by the Land and Survey Department, Sibu while the appellants’ plan for sub-division Civil Appeal No. Q-02(NCVC)(A)-246-01/2017 11 was never certified by any qualified surveyor. Neither was the appellants’ plan accepted and approved by the Land and Survey Department. The appellants’ plan was thus not in compliance with Part X and section 231(1) of the Land Code. [27] Further, the respondents’ plan in exhibit A-1 was prepared by the surveyor based on the parties’ respective shareholdings. The appellants’ total shareholdings in the land is 69/240 (approximately 28%) whilst the respondents’ total shareholdings is 171/240 (approximately 72%). His Lordship found that the computation showed that the partition as per the plan in exhibit A-1 (after excluding the area of 3.69 square metres for SESCO tower base site), is in accordance with the parties shareholdings, i.e. that the total area for the appellants is 4,827.31 square metres which is approximately 28% whereas the total area for the respondents is 12,611 square meters which is approximately 72%. [28] In the premises, we agreed with the learned judge that the appellants’ contention that the partition based on plan exhibit A-1 reduces their shareholding in the land was without merit, more so when the appellants had not adduced credible evidence to support their contention. [29] Insofar as the appellants’ argument on the point of indefeasibility is concerned, we were of the view that the point raised was misconceived and without merit, as the partition if executed would not affect the appellants’ indefeasible right and interest to the land. [30] The appellants had also complained that the approved plan would affect their reserved right of way. Based on exhibit A-1, we similarly found Civil Appeal No. Q-02(NCVC)(A)-246-01/2017 12 this complaint to be without merit. Exhibit A-1 shows that there is in fact an existing road connecting both Plot 1 and Plot 2 to the road. Conclusion [31] We agreed with the learned judge on the evaluation of the facts and the application of the law. Having found no appealable error on the part of the learned judge which warrant our appellate intervention, we unanimously dismissed the appeal. Dated: 29th November 201 signed (TENGKU MAIMUN BINTI TUAN MAT) Judge Court of Appeal Counsel/Solicitors : For the Appellants: Henry Ling Kuong Meng Messrs. Ling & Wong For the Respondents: Clement Wong (Then Siaw Lian with him)