Ooi Say Hup v Loh Chee Seng (K-02(NCVC)(W)-33-01/2018)

1.

2.

OOI SEE KEAT OOI SEE POH …APPELLANTS

LIM NGAI KEOW …RESPONDANTS [Dalam perkara mengenai Mahkamah Tinggi Malaya di Alor Setar Guaman Sivil No: 22NCVC-55-7/2015) Dalam Mahkamah Tinggi Malaya di Alor Setar Dalam Negeri Kedah Darul Aman, Malaysia Guaman Sivil No: 22NCVC-55-7/2015

Between

Ooi Say Hup

Ooi See Keat Ooi See Poh …Plaintiff

And

Loh Chee Seng Lim Ngai Keow ...Defendant] CORAM : HAMID SULTAN BIN ABU BACKER, JCA : YEOH WEE SIAM, JCA : HANIPAH BINTI FARIKULLAH, JCA 2 GROUNDS OF JUDGMENT

This is an appeal against the decision of the learned High Court Judge at Alor Setar, Kedah who dismissed the plaintiffs’ claim after a full trial on the ground that the plaintiffs have failed to prove their case. The plaintiffs claim for an order of vacant possession of premises.

We will refer to the parties in this judgment as they appear in the High Court, the appellants as the plaintiffs and the respondents as the defendants.

We heard the appeal on 27 July 2018. After hearing the parties, we adjourned the matter for our consideration and decision. We now deliver our decision and the reasons for the same.

The subject matter of the dispute between the parties revolved around the ownership of premises. 3

The plaintiffs claimed that Premises No. 282 stands erected on their land known as No. Hakmilik 10544, Lot 11, Seksyen 9, Bandar Kulim, Kedah Darul Aman (Lot 11). It was common ground between the parties at the hearing before the learned High Court Judge that the plaintiffs are the rightful owner of Lot 11.

During the trial, the plaintiffs through their witnesses, namely the testimonies of SP1, SP2, SP3, SP4 and SP5 had referred to plans which were prepared by Jabatan Ukur dan Pemetaan Malaysia Negeri Kedah (“JUPEM"), namely Exhibits P4(c), (d), (e) and (f) as well as the plan which was drawn by the surveyor appointed by the plaintiffs, namely Exhibit P7, to support their claim that Premises No. 282 stood on the plaintiffs’ land, Lot 11.

The defendants in their defence disputed the plaintiffs’ claim and contended that they were the rightful owners of Premises No 282 which was erected on the property held under Hakmilik Geran No. Pendaftaran 12537 Lot 12, Sek 9 Bandar Kulim, Kedah Darul Aman (Lot 12). The plaintiffs did not dispute that the defendants are the registered owner of Lot 12.

In resisting the appeal, the position taken by the defendants was that the contents of the plans prepared by JUPEM as well as that of the plaintiffs' surveyor which were relied on by the plaintiffs, are inconclusive and unsafe to be relied upon. Learned counsel for the defendants argued that the testimonies of the plaintiffs’ witnesses during cross examination showed that 4 the contents of the plans relied by the plaintiffs were inconclusive and inaccurate.

The defendants further pleaded that they were bona fide purchasers for valuable consideration with notice of any defects in the title. It is the defendants’ position that Lot 12 with Premises No. 282 was jointly purchased by them from the previous owners, namely Yeap Sek Guan @ Yeap Seok Eng and Yieh Sik Khoon in the year 2001 at the consideration price of

An important point to consider in this present case is that no fraud was ever pleaded in the plaintiffs’ statement of claim.

The defendants had also adduced evidence during trial that ever since they have been registered as the lawful owners of Lot 12, they had been paying the quit rent and assessment charges payable on the land and on Premises No. 282. The assessment bills in respect of Premises No. 282 state that the owners are the defendants. The defendants have conducted an official search with Majlis Perbandaran Kulim in relation to Premises No. 282 and according to the official search results dated 12th August 2015 issued by Majlis Perbandaran Kulim, the lot number for Premises No. 282 is stated as Lot 12. 5

It is the defendants’ position that they have owned Premises No. 282 which stands erected on Lot 12 for a period of fourteen (14) years since year 2001, and it was only on 29th July 2015, that they were served with the writ of summons and statement of claim filed by the plaintiffs, claiming for vacant possession of Premises No. 282 from the defendants.

Having assessed the evidence before him, the learned High Court Judge had found that the plaintiffs have failed to prove their case and dismissed the plaintiffs’ claim.

There were two (2) issues before the learned High court Judge for his determination: i) Whether Premises No. 282 was located on the plaintiffs’ Lot 11 or the defendants’ Lot 12; and ii) Whether the defendants have trespassed onto Premises No. 282. 6

The key passage upon which the learned High Court Judge made his findings appears at paragraphs 34, 35, 36 and 37 of his judgment: [34] Berdasarkan kepada keseluruhan keterangan oleh Plaintif-plaintif dan Defendan-defendan, Mahkamah ini mendapati terdapat bukti yang menunjukkan bahawa Defendan-defendan merupakan pemilik sah dan berdaftar bagi Premis no. 282 dan Hartanah Defendan-defendan. Perkara ini dapat dilihat daripada geran Hartanah Defendan-defendan tersebut dan dikuatkan lagi dengan fakta bahawa Defendan-defendan yang telah membayar cukai tanah dan taksiran bagi Hartanah Defendan-defendan dan Premis No. 282 sejak tahun 2003 sehingga tahun 2016. Daripada keterangan juga mendapati tiada unsur frod dalam pemilikan Hartanah Defendan-defendan tersebut di mana tidak dinafikan bahawa Defendan-defendan telah membeli Hartanah Defendan-defendan tersebut dengan suci hati dan beserta balasan yang bernilai. Maka hakmilik Defendan-defendan tidak boleh disangkal lagi, selaras dengan seksyen 340(1) KTN

[35] Mahkamah ini juga mendapati terdapat ketinggalan terhadap pelan akui PA 140563 yang tidak dibuat semakan sewajarnya berkenaan dengan nombor premis di atas lot-lot tersebut yang diakui sendiri oleh SP1 bahawa sepatutnya semakan tersebut dibuat dengan MPK. [36] Sebagai tambahan kepada kesemua di atas, walaupun tidak mengikat, namun Mahkamah ini telah mengambil kira fakta dan prinsip yang telah diputuskan oleh Mahkamah ini dalam Guaman Sibil No. 22-100- 2004 yang memihak kepada defendan. Keputusan ini juga telah dikekalkan oleh Mahkamah Rayuan melalui Rayuan Sivil No. K-02-1648-2010. 7 [37] Akhirnya Mahkamah ini juga mendapati bahawa Defendan-defendan tidak menceroboh ke atas Premis No. 282 yang merupakan premis milik mereka sendiri.

The core issue before us is whether Premises No. 282 is situated and erected on the plaintiffs’ Lot 11 or on the defendants’ Lot 12.

As stated earlier, there is no dispute that the plaintiffs are the registered owners of Lot 11 and the defendants are the registered owners of Lot 12. However, there was a serious dispute as to whether Premises No. 282 was erected on Lot 11 (the plaintiffs’ land) or Lot 12 (the defendants’ land).

Before us, the main thrust of the contention of learned counsel for the defendants is that the information contained in “Pelan Akui” 140563 (Exhibit P4(f)) (Plan PA 140563) prepared by SP2 and approved by SP1 from JUPEM which says that Premises No. 282 stands erected on Lot 11 is conclusive and irrefutable. 8

Learned counsel for the Plaintiffs relied on section 396 (2) of the National Land Code 1964 (NLC) to support his contention that the survey Plan PA 140563 is conclusive for purpose of determining where Premises No. 282 stood.

We were also referred to the cases of Associated Associated Pan Malaysia Cement Sdn Bhd V Westwork Development Sdn Bhd [2012] 2 CLJ 81 and Hoon Siang Kan V Teo Wee Siong [2013] 1 LNS 608 which were cited to support the plaintiffs’ contention that the survey plan as in PA 140563 is authoritative and conclusive.

On the contrary, the defendants contended that the contents of the plan prepared by JUPEM which were relied by the plaintiffs were inconclusive and unsafe to be relied upon. Learned counsel for the defendants argued that the testimonies of the plaintiffs’ witnesses during cross examination showed that the contents of Plan PA 140563 were inconclusive and inaccurate. We will now examine the evidence.

As a starting point, reference must be made to section 396(2) of NLC. For ease of reference, we reproduce the relevant provision of section 396

It is crystal clear that section 396(2) of the NLC provides for the conclusiveness of the following matters: i) The boundaries; ii) The boundary marks of the land; iii) The volume of the stratum; and iv) The stratum lot number thereof.

It can be seen that section 396(2) of the NLC, however, does not provide for or make reference whatsoever to the conclusiveness of the addresses of any building erected on the lots which were surveyed.

The High Court in Associated Pan Malaysia Cement Sdn Bhd v Westwood Development Sdn. Bhd and Hoon Siang Kan v Teo Wee Siong which were referred to by the plaintiffs held that section 396 of the NLC and especially subsection (2) thereof state that any plan approved by the Director of Survey and Mapping under para (e) of sub-section (1) shall be conclusive evidence of the boundaries, boundary marks and area of the land to which it refers and is prima facie evidence of the lot number thereof. 10

While we do not disagree with what was held by the High Court in the cases cited, we are of the view that Associated Pan Malaysia Cement Sdn Bhd v Westwood Development Sdn. Bhd and Hoon Siang Kan v Teo Wee Siong dealt with the boundary of the land. The two cases did not deal with the issue of the address of premises.

In the instant case, the essential point is that the learned High Court Judge found that in preparing Plan PA 140563, JUPEM ought to have referred to Majlis Perbandaran Kulim in determining the addresses of the premises on the lots (Lots 9 – 16 on Plan PA 140563).

We do not think that the learned High Court erred when he accepted SP1’s evidence that JUPEM ought to have referred to Majlis Perbandaran Kulim in determining the addresses of the premises on the lots in Plan PA

Therefore, in our view the failure of JUPEM to refer to Majlis Perbandaran Kulim, which keeps the records of ownership of the premises in question at all material times, rendered the contents of Plan PA 140563 prepared by SP2 and approved by SP1 to be inconclusive.

In this connection, the official search with Majlis Perbandaran Kulim (Exhibit D9) clearly shows that Premises No. 282 is situated on Lot 12 which is the defendants’ property and that they are the owner of Premises No. 282. 11

Another matter that must be noted is that the plaintiffs’ own witness SP5, the Director of Valuation Department and Property Management of MPK, gave evidence in cross examination that according to the records of the old files in Majlis Perbandaran Kulim custody, the lot number stated in the ownership information (“maklumat pemilikan”) for Premises No. 282, Jalan Tunku Asaad, 09000 Kulim, Kedah was Allotment 12, Seksyen 9, Daerah Kulim, Kedah while Premises No. 281, Jalan Tunku Asaad, 09000 Kulim, Kedah was on Allotment 11. In this regard, SP5 pointed out during cross-examination that the term 'Allotment' meant "Lot", and that based on the records of the old files kept at Majlis Perbandaran Kulim, valuation on the said lots had been conducted by the Valuation Ministry, and there were also layout plans prepared by the Department of Property under the purview of the Federal Government.

The evidence of SP5 clearly shows that based on the records kept by Majlis Perbandaran Kulim, Premises No. 282 stands on Lot 12, i.e. the Respondents’ Property, and not on the Appellants’ Property (Lot 11).

We accept the defendants’ submissions that the official search dated 12 August 2015 (Exhibit D9) issued by Majlis Perbandaran Kulim is relevant in determining the rightful proprietor of Premises No. 282 as the defendants being the registered proprietors of Lot 12, are entitled to rely on the information contained in Exhibit D9 to protect their interests over Premises No. 282. (See Pengarah Hospital Gua Musang & Prs. V Abdullah Mat [2017] 5 CLJ 335 and Toh Kong Joo v Penguasa Perubatan, Hospital 12 Sultanah Aminah, Johor Bahru [1990] 3 CLJ). The contention of the plaintiffs that the defendants failed to adduce any evidence to disprove the plaintiffs’ claim that Premises No. 282 stood on Lot 11 is without merit.

We accept the submission of learned counsel for the defendants that the addresses of the buildings on the lots surveyed cannot be determined with certainty and finality by mere site visits carried out by the plaintiffs’ witnesses from JUPEM and the appellants’ own surveyor. In this regard, reference to Majlis Perbandaran Kulim, being the custodian of the building ownership records, ought and should have been done by JUPEM, as admitted by SP1.

What is important is that in his judgment, the learned High Court Judge expressly directed his mind to the fact that SP1 had admitted in cross – examination that the survey plans approved by JUPEM were inconclusive for purposes of determining the address of premises or buildings standing on the land lots surveyed by them.

In this regard, SP 1 in his testimony had clarified in cross-examination that the use of the term 'mencadangkan' in JUPEM's letter dated 18th February 2014 [Exhibit P2(a)] showed that the contents of Plan PA 140563 relied upon by the plaintiffs were inconclusive for the purpose of determining and confirming the address(es) of the premises on the lots in question. It is important to note that this admission by SP 1 was never challenged by the plaintiffs. 13

We would also add that SP6, the first plaintiff, confirmed that the plaintiffs’ land title was held under Geran 10544, Lot 11, Sek. 9, Bandar Kulim, Kedah Darul Aman. However, the evidence shows that SP1 at the material time issued JUPEM’s letter of reply (Exhibits P2 (a) and (a-b) in his capacity as the then Director of Survey and Plans for the state of Kedah without requesting for any clarification or confirmation regarding the details of the plaintiffs’ land title as stated in the plaintiffs’ solicitors letter addressed to JUPEM as “Geran 20460”.

Learned counsel for the plaintiffs in his oral submission contended before this court that SP1 and SP2 are expert witnesses and therefore their evidence must be accepted by the court. Learned counsel for the plaintiffs also stressed that the defendants did not call any other expert to offer an alternative finding and therefore the opinion of the plaintiffs’ expert must be accepted by the court. After reading the entire judgment of the High Court, we found that on point of fact the High Court never dealt with the said issue in his judgment.

We are of the view that the opinion of the experts (SP1 and SP2), cannot be accepted merely because they have given opinions in the plaintiffs’ favor, and there is no rebuttal evidence from the defendant. Each case must be decided based on its own facts and circumstances. 14

In Wong Swee Chin v Public Prosecutor [1985] 1 MLJ 212, delivering the judgment of the Federal Court, Raja Azlan Shah, CJ (Malaya) said this about “expert evidence”: In the Evidence Act, 1950, opinion of experts are under certain conditions admissible in evidence. Who are experts are explained in section 45 of the Act. Section 46 provides that facts not otherwise relevant are relevant if they support or are inconsistent with the opinions of experts when such opinions are relevant. DW2 was called as an expert witness. Our system of jurisprudence does not generally speaking, remit the determination of dispute to experts. Some questions are left to the robust good sense of a jury. Others are resolved by the conventional wisdom of a judge sitting alone. In the course of elucidating disputed questions, aids in the form of expert opinions are in appropriate cases placed before juries or judges. But, except on purely scientific issues, expert evidence is to be used by the court for the purpose of assisting rather than compelling the formulation of the ultimate judgments. In the ultimate analysis it is the tribunal of fact, whether it be a judge or jury, which is required to weigh all the evidence and determine the probabilities. It cannot transfer this task to the expert witness, the court must come to its own opinion.

The application of the above principle can be seen in Syed Abu Bakar Bin Ahmad v Public Prosecutor [1984] 2 MLJ 19; Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309; Erivesto Anderson & Anor v Public Prosecutor [2009] 1 MLJ 593 and Chan Kwee Fong v PP [2010] 3 CLJ 671. 15

Relying on the case of Dr. Shanmuganathan v Periasamy Sithambaran Pillai [1997] 2 CLJ 153; [1997] 3 MLJ 61, this Court in the case of Majuikan Sdn. Bhd v Barclays Bank Plc [2014] 9 CLJ 337 held: Where there are conflicting expert opinions, the judge is of course entitled to bring to bear his own judicial appreciation of the matter, and choose one over the other, but where there is only one expert opinion, he should not as a rule reject that opinion outright without judiciously considering whether it is obviously indefensible and unsupported by the basic facts of the case. Such a principle is in accord with the principle that the court is the final arbiter, as stated in Dr Shanmuganathan v. Periasamy Sithambaram Pillai [1997] 2 CLJ 153; [1997] 3 MLJ 61: ... the principal object of expert evidence is to assist the court to form its own opinion. An expert should give his reasons. The court is the final arbiter, not the experts or witnesses... The learned Judge should have considered the reasoning given by the expert and with that assistance arrive at the conclusion. In failing to do so the learned Judge had abdicated his function. The learned Judge is entitled to reject the evidence but not before considering such evidence...

In the light of the above principles, the nature of SP1 and SP2’s evidence must be analyzed.

Reverting to the facts of the case, there was an effective challenge during cross – examination of SP1 where the witness admitted that the contents of the survey plans were inconclusive for purposes of determining the addresses of the buildings erected on the lots surveyed. Further, we noted that there is rebuttal evidence produced by the defendants to 16 contradict SP1 and SP2’s evidence in the form of Exhibit D9, namely the official search result issued by Majlis Perbandaran Kulim which clearly shows that Premises No. 282 is situated on Lot 12, namely the defendants’ property, and the owners named therein are the defendants. It is necessary to point out that SP1 also admitted that he ought to have referred to Majlis Perbandaran Kulim in determining the addresses of the premises on the lots in Plan PA 140563.

In our view, the findings by the learned High Court Judge were clearly justified and correct based on oral and contemporaneous documentary evidence led before the High Court.

Moreover, this finding is a strong finding of fact upon an assessment of the evidence by the learned High Court Judge. We keep in mind the principles that appellate intervention should only upset the decision of the High Court Judge if it can be demonstrated that the Judge was plainly wrong. Suffice to refer to the recent Federal Court decision in Tengku Dato’ Ibrahim Petra Tengku Indra Petra v Petra Perdana Bhd & Another Appeal (2018) 2 CLJ 641 where Azhar FCJ said: “[94] The law is clear and well-settled in that the principle on which an appellate court could interfere with findings of fact by the trial court is "the plainly wrong test" principle; see the Federal Court in Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 1, UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785, In re B (A 17 Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911; and Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453). This court has said this before, and we adhere to it now. Having regard to the above principle, we find that in the present case the Court of Appeal made no findings that the High Court had gone plainly wrong, let alone that on a reconsideration of the whole evidence the opposite conclusion should be reached.”

For the above reasons, we are of the opinion that the plaintiffs cannot merely rely on the survey plans by JUPEM and cite section 396(2) of the NLC as the authority to say that Premises No. 282 stood on Lot 11 simply because the said provision does not attach any conclusiveness whatsoever to the addresses of the buildings erected or standing on the lots surveyed.

After having perused the record of appeal and considered the submissions of both learned counsels, we find no merit in this appeal. We are satisfied that the learned judge did not err in fact or in law to warrant our appellate intervention. The learned High Court Judge was correct in his decision that the plaintiffs failed to prove that Premises No. 282 was erected on Lot 11. 18

Based on the foregoing reasons, we dismissed the appeal with costs of RM10,000.00 subject to payment of the allocator fee. The decision and order of the High Court Judge are affirmed. We ordered the deposit to be refunded to the plaintiffs. Dated: 2 November 2018 sgd HANIPAH BINTI FARIKULLAH Judge, Court Of Appeal, Malaysia Putrajaya Counsel/Solicitor for the Appellants/Defendants Mr. Abdul Fareed bin Abdul Gafoor VM Mohan Fareed & Co Counsel/Solicitor for the Respondents/Plaintiffs Mr. Oon Kian Wooi Ms Farahiyah binti Ahmad Istihar Ramli Amar Jit & Tan