Ong Chin Hai v Ong Hoo See (P-02(NCvC)(A)-959-08/2020)

ONG CHIN CHYE (NO. K/P: 500816-07-5357) ... APPELLANTS

ONG CHIN HOE (NO. K/P: 611213-07-5317) ... RESPONDENTS [In The Matter of Civil Suit No: PA-24NCvC-853-10/2019 in the High Court of Georgetown in Pulau Pinang Between

ONG CHIN HOE (NO. K/P: 611213-07-5317) And

ONG CHIN CHYE (NO. K/P: 500816-07-5357) ... Defendants] CORAM KAMALUDIN MD. SAID, JCA MOHD RUZIMA GHAZALI, JCA HASHIM HAMZAH, JCA GROUNDS OF JUDGMENT Introduction [1] For ease of reference, parties to the present appeal shall be referred to as they were before the High Court. [2] This is the third and fourth defendants' appeal against the decision of the learned Judicial Commissioner ("JC") on Encl. 1, which was delivered on 21.07.2020. [3] Encl. 1 is the plaintiffs' application under sections 417 and 145 of the National Land Code 1965 ("NLC 1965") and under O.7 and 31 of the Rules of Court 2012 ("ROC 2012") seeking, among others, the following reliefs:

(a) the plaintiffs' and the defendants' co-proprietorship or joint ownership over a property known as No. 919, Mk. 13 Relau, 11900 Bayan Lepas, Pulau Pinang erected on Lot No. 1852, Mukim 13, Tempat Relau, Daerah Timor Laut, Negeri Pulau Pinang held under Geran Mukim No. GM 346 ("the said Property") to be terminated forthwith;

(b) the third defendant to vacate the said Property within 14 days from the date of the order;

(c) the said Property is to be sold by way of a public auction at the current market price or at a price which is not less than RM10,500,000.00, which is the market price calculated as of 21.12.2018;

(d) a licensed auctioneer to be appointed by the court to manage and conduct the public auction;

(e) both parties in the action to be at liberty to appoint an accredited valuer to prepare a valuation report to determine the current market price of the said Property together with vacant possession;

(f) the net proceeds of the sale of the said Property after the deduction of all cost, charges and all expenses incurred for the sale, including legal fee, valuer's fee and other related charges and cost in respect of the sale and transfer of the said Property be divided equally between the plaintiffs and the defendants calculated based on one-tenth (10%) per person;

(g) both parties to the action are required to execute and complete any documents required to give effect to the order herein after being given seven (7) days' notice; the Deputy Registrar or the Senior Assistant Registrar of the court be authorised to execute or complete any document and to take all action required to give effect to the order herein; and

(h) the District and Land Office of Daerah Timor Laut in Pulau Pinang or any relevant authorities to be given full authority to transfer the said Property to the name of the purchaser or new owner after receipt of relevant documents to give effect to the order herein. [4] On 21.07.2020, after hearing both parties, the learned JC allowed the plaintiff's application in Encl. 1 with costs of RM6,000.00, subject to allocator. The third and fourth defendants were dissatisfied with the decision, hence the present appeal. Brief Facts [5] Briefly, the facts in the present case are as follows. [6] The said Property previously belonged to one Ong Hooi Hong @ Ong Kim Huat ("the deceased"). The deceased was the father of all the plaintiffs and the defendants. [7] A consent judgment dated 26.02.2014 was recorded between the parties before the High Court of Malaya in Pulau Pinang in Civil Suit No: 22NCvC-260-08/2013. In the consent judgment, the deceased's estate was ordered to be divided equally between the plaintiffs and the defendants. [8] The said Property was later registered in the names of the plaintiffs and the defendants as joint owners, each holding 10% undivided shares in the said Property. [9] On 22.07.2019, the plaintiffs, through their appointed solicitors, issued a letter to the defendants notifying their intention to sell the said Property. By way of letters dated 03.08.2019 and 16.10.2019, the first and second defendants agreed to sell the said Property. The third and fourth defendants did not reply. [10] As of December 2016, the said Property was valued at RM10,500,000.00 based on the valuation report dated 21.12.2016. The land has been valued at RM13,000,000.00 as of October 2019 based on the Updated Valuation Report dated 22.10.2019. [11] On 01.10.2019, the plaintiffs filed their application in Encl. 1 before the High Court. The third and fourth defendants opposed the application. Grounds of The Third and Fourth Defendants' Appeal [12] As can be gleaned from their Memorandum of Appeal, the main grounds of the third and fourth defendants' appeal in the present case are as follows namely-

(a) that the learned JC had erred both in fact and in law when he failed to consider the plaintiffs' failure to satisfy the requirements under section 145(1) of NLC 1965; and

(b) that the learned JC had erred both in fact and in law when he failed to consider the plaintiffs' failure to satisfy the requirements under O.31 r.1 of ROC 2012. First Issue: Section 145(1) of NLC 1965 [13] First and foremost, section 145 of NLC 1965 reads: "Section 145. Power of Court to facilitate termination of coproprietorship.

(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 sub-section (1) of section 136 (as applied by section 141), partition of the land between all of the co-proprietors is incapable of being approved under this Chapter, 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 terminated.

(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) that 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

(c) that the land be sold." (emphasis added) [14] This provision is available to any of the co-proprietors in a jointly owned land who want to terminate their co-proprietorship if any of the co-proprietors will neither join in nor consent to the making of the application for partition of the land or if the application for the partition of the land is incapable of being approved under sections 136(1)(f) and 141 of NLC 1965. [15] In such application, the court has the discretion to order the partition of the land or to make any order that the court thinks just to enable the co-proprietorship to be terminated, including to order for the land to be sold. See Young Yean Chin & Ors v. Quek Yak Kang & Ors [2016] 6 CLJ 860 (CA). [16] The learned counsel for the third and fourth defendants submitted that the plaintiffs' application in Encl. 1 was premature since the plaintiffs failed to satisfy the requirements under section 145(1) of NLC 1965. According to the third and fourth defendants, the plaintiffs in their application failed to show that (i) there was any request from the plaintiffs to the defendants to apply for the said Property to be partitioned, (ii) the third and fourth defendants did not consent to the making of an application for the said Property to be partitioned, and (iii) the plaintiff had applied for the said Property to be partitioned, but the application was denied. [17] The learned counsel for the third and fourth defendants relied on the case of Koh Heng Jin Holdings Sdn Bhd v. Phuah Beng Chooi & Anor [2016] MLJU 1718; [2016] 2 MLRA 324; [2016] 3 CLJ 837, where Alizatul Khair Osman JCA (as Her Ladyship then was) in speaking for the Court of Appeal, held: [25] On this issue, it was the defendants' submission that as the power of the court to terminate the co-proprietorship under s. 145 of the NLC only arises if any of the co-proprietors refuses to join in or to consent to an application for partition. No such issue arises here as the plaintiff had never requested the defendants to consent to the partitioning of the property. The plaintiff did not adduce any evidence by way of correspondence between the parties or of any meeting or discussion to prove that such request for partition was made to the defendants. [26] We agreed with the submission of learned counsel for the defendants that the plaintiff's reliance on s.145 of the NLC to terminate the co-proprietorship is misconceived as firstly, there is no evidence of any request by the plaintiff to the defendants for the said property to be partitioned let alone evidence of any refusal by the defendants to consent to the partition." (emphasis added) [18] However, we agree with the learned counsel for the plaintiffs that the facts in Koh Heng Jin's case can be distinguished from the facts in the present case. [19] In Koh Heng Jin's case, the dispute between the parties arose from the administrator's refusal to accept the plaintiff's proposal for the creation of tenancy and the imposition of rental. The court in Koh Heng Jin's case also found that the real issue, as can be gleaned from the exchange of letters between the parties, was the rental issue (see paras. 32-33 of the judgment). There was nothing in the evidence to suggest either party's refusal to partition the land. [20] On the other hand, we found that the plaintiffs in the present case were the ones who had no intention to apply for the said Property to be partitioned. It is clear from the evidence that the plaintiffs' intention all along was to terminate the co-proprietorship, to have the property be sold by public auction and for the proceeds to be divided equally between the plaintiffs and the defendants. [21] We are of the considered view that the plaintiffs were not barred from applying to terminate their co-proprietorship under section 145(1) of the NLC 1965, which states that "any of the co-proprietors" may apply for the co-proprietorship in the land to be terminated. Therefore, we do not agree with the third and fourth defendants that the plaintiffs must show that they had requested for the said Property to be partitioned and the defendants did not consent to it, before section 145 of NLC 1965 could be invoked. [22] There was also no requirement under NLC 1965 for the co-proprietor who wished to terminate his co-proprietorship on the land to show that he had applied for the land to be partitioned, but the application was rejected before he could come to court under section 145 of NLC 1965. [23] We refer to the case of Datin Sohaila Adorn v. Einstein Tay [2016] 1 LNS 522 (CA), in which Zaharah Ibrahim JCA (as Her Ladyship then was) in delivering the judgment of the Court of Appeal held as follows: "[35] Section 141A as introduced into the NLC, and which became the subject of the difference of views in the High Court cases referred to above, allowed a co-proprietor or co-proprietors holding the major share in the land to apply to partition the land, notwithstanding the requirement in section 141 of the NLC. That application would still be subject to the provisions of section 142, particularly subsections (3) and (4) of section 142, of the NLC. [36] It must be noted that no consequential amendment was made to section 145 of the NLC. In other words, Parliament saw it fit to retain the existing avenue for co-proprietors, including one holding a major share in the land held under such co-proprietorship, to apply to the High Court for termination of such co-proprietorship. [37] We therefore agree with the view of the learned High Court Judge in the case of Ku Yan bte Ku Abdullah:--

(a) that section 141A did not compel a co-proprietor holding the major share in a piece of land to apply to the land administrator for approval to partition the land;

(b) that section 141A was merely a permissive section; and

(c) that a co-proprietor having the major share in a piece of land is not barred from applying to the High Court under subsection 145(1) to have the co-proprietorship terminated and the land partitioned on the general ground that a co-proprietor will not join in nor consent to the making of an application for partition. [38] Section 141A of the NLC was further amended in 2008 by the National Land Code (Amendment) Act 2008 (which came into force in Johor on 0110112009). [39] After the 2008 amendment to section 141A, any co - proprietor may apply to the State Director or the Land Administrator for partition of the land if "other co-proprietors neither join in nor consent to the making of the application " [40] Even though the amended section 141A contains a similar condition as the condition in paragraph 145(1)(a) (namely, the absence of participation or consent by any of the co-proprietors) for the making of an application for partition or termination of co-proprietorship, no amendment was made to section 145 by Parliament. [41] It must also be borne in mind that the National Land Code (Amendment) Act 2008 also amended section 141 as well as sections 142 and 143A to enable agricultural land to be subdivided even though it is Jess than 215 of a hectare in area. Yet paragraph 145(1)(b) of the NLC was left untouched. A court order under paragraph 145(1) (b) was previously the only way a co-proprietor could have agricultural land involving or resulting in areas of less than 215 of a hectare partitioned. [42] In our view, with the amendment to section 141A a co-proprietor, even a co-proprietor holding a minor share in land held under co-proprietorship, has an option of either applying under section 141A or under 145 of the NLC for approval to partition the land held under such co-proprietorship. [43] In our considered opinion, the view of the learned High Court Judge in the case of Ku Yan bte Ku Abdullah holds true also (by virtue of the amended section 141A), for a person holding a minor share in the land. In other words, there is no requirement under the NLC that a co-proprietor must first make an application under sections 141A and 142 of the NLC before he can make an application under section 145 of the NLC." (emphasis added) [24] In addition, we agree with Su Geok Yiam J in Hasiah Mat v. Johanariffin Din & 3 Yang Lain [2009] 1 LNS 920 (HC), who took a similar view and held as follows: "Dalam prosiding ini adalah jelas bahawa plaintiff tidak ingin untuk memohon untuk pemecahan sempadan tanah tersebut kerana plaintiff memerlukan wang hasil daripada penjualan 1/2 bahagian yang tidak dibahagikannya dalam tanah tersebut bagi tujuan membayar kos rawatan anaknya yang mengalami penyakit barah. Ini bermakna, plaintiff sudah mematuhi salah satu daripada dua syarat yang diperuntukkan di bawah s. 145(1) KTN. Itu sudah memadai untuk mahkamah menggunakan budi bicara yang diberikan kepada mahkamah di bawah s. 145(2) (c) KTN untuk memerintahkan supaya tanah tersebut dijual." (emphasis added) [25] In a nutshell, we do not agree with the third and fourth defendants that the plaintiffs' application under section 145 of NLC 1965 was premature. Second Issue: Section 25 and Paragraph 3 of the Schedule to Courts of Judicature Act 1964 ("CJA 1964") and O.31 of ROC 2012 [26] Even if the requirements under section 145(1) of the NLC 1965 have not been complied with, the court still has the power to direct a sale instead of partition pursuant to section 25 and paragraph 3 of the Schedule to CJA 1964 and O.31 of ROC 2012. See Koh Heng Jin (supra). [27] The court is conferred with additional powers under section 25 and paragraph 3 of the Schedule to CJA 1964 in any cause or matter relating to land, to direct the land to be sold instead of partition, if it appears necessary or expedient to do so. The relevant provision reads: "Section 25. Powers of the High Court.