LAM WEE SIN (L) (sebagai Pentadbir Bagi Harta Pusaka Lam Chen Khiong, Si Mati) v WAKIL DIRI / PENTADBIR / WARIS KEPADA PANG HIOK, SI MATI (JA-24NCvC-433-05/2023)

WAKIL DIRI/ PENTADBIR / WARIS KEPADA PANG HIOK (simati)

PENDAFTAR HAKMILIK, PEJABAT TANAH DAERAH KULAI …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 1) Introduction [1] This is an OS filed by the Plaintiff who is the son of the late Lam Chen Khiong seeking for a few prayers, inter alia a declaration that the Plaintiff is the beneficial owner of a piece of land known as PTD 108227 (asal Lot 7216 RH 34) GSA Seelong Selatan, Mukim Senai Daerah Kulaijaya and a declaration that the Power of Attorney dated 10.4.1966 purportedly signed by Lam Chen Khiong (“the 1966 PA”) is null and void. [2] As a brief background, vide the Johor State Government Gazette dated 1.6.1967, the State Government gazetted a group settlement area at Seelong Selatan in Kulai District as Rancangan Seelong Selatan under s. 3(1) of the Land (Group Settlement Areas) Act 1960 (“GSAA”). [3] Before that, vide Pemberitahuan Kebenaran Tanah dated 13.9.1965, a permit to occupy a land approximately 8 acres with a consolidated annual charge of RM10.00 per acre within Rancangan Seelong Selatan was issued to Lam Chen Khiong. Based on the record kept by the 2nd Defendant, the consolidated annual charge of RM80.00 had been duly paid by Lam Chen Khiong on 7.11.1965. [4] Accordingly, Lam Chen Khiong’s name was registered under s. 12(1) of the GSAA in the Register of Holding with the record No. 34 Survey Lot No. Plot 29 (Lot 7216) (“Land’). [5] On 30.10.2002, the 2nd Defendant received an application from Pang Hiok for the alienation of PTD 108227 (asal Lot 7216 RH 34) GSA Seelong Selatan, Mukim Senai Daerah Kulaijaya. [6] Then, the 2nd Defendant sent the application to Pejabat Tanah dan Galian Negeri Johor (“PTGJ”) for the state government’s consideration. [7] Vide a letter dated 1.3.2006, PTGJ requested Pang Hiok to submit the consent letter from Lam Chen Khiong’s heirs agreeing the Land be transferred to Pang Hiok. Nevertheless, there was no response from Pang Hiok. [8] On 21.4.2015, the 2nd Defendant sent another letter to Pang Hiok’s family requesting the latter to submit the consent letter from Lam Chen Khiong’s heirs. Again, the 2nd Defendant received no response from Pang Hiok’s family. [9] On 30.11.2015, the 2nd Defendant sent Borang 1 to be filled up by the Plaintiff. [9] On 12.11.2020, the 2nd Defendant sent both parties’ applications for the Land to PTGJ for further actions The Plaintiff’s case [10] It is the Plaintiff’s contention that the Plaintiff’s family discovered from an advertisement dated 20.5.2015 published in Sin Chew Newspaper that a law firm known as Messrs. C.F Wong & Co (“CF Wong”) was looking for Lam Chen Khiong and his family relating to the Land. [11] The Plaintiff then went to CF Wong’s office and was informed that Pang Hiok had appointed the legal firm to claim for the ownership of the Land. The Plaintiff was also informed that the claim was made premised on the 1966 PA. [12] Believing that the 1966 PA is null and void, on 3.5.2023, the Plaintiff filed this OS for the following reliefs, inter alia:

satu deklarasi bahawa Plaintif iaitu waris dan pentadbir kepada harta pusaka Lam Chen Khiong (si mati) adalah pemilik benefisial bagi suatu tanah tapak pertanian (Getah) atas PTD 108227 (asal Lot 7216 RH 34) GSA Seelong Selatan, Mukim Senai Daerah Kulaijaya;

satu deklarasi bahawa surat kuasa wakil bertarikh 10.4.1966 yang kononnya ditandatangani oleh Lam Chen Khiong adalah dibatalkan dan tidak berkesan;

satu deklarasi bahawa wakil diri/ pentadbir/ waris-waris kepada harta pusaka Pang Hiok tidak mempunyai sebarang hak benefisial di bawah hartanah tersebut;

secara alternatif, satu deklarasi bahawa surat kuasa wakil bertarikh 10.4.1966 yang kononnya ditandatangani oleh Lam Chen Khiong Khiong adalah dibatalkan dan tidak berkesan selepas kematian Lam Chen Khiong pada 13.4.1994.

satu deklarasi bahawa kesemua tindakan yang dilakukan oleh kuasa wakil Pang Hiok dan/ atau Defendan Pertama sebagai wakil diri/ pentadbir/ waris kepada harta pusaka Pang Hiok selepas kematian Lam Chen Khiong pada 13.4.1994, termasuk dan tidak terhad terhadap permohonan Pang Hiok pada 30.10.2002 untuk hakmilik tanah tersebut dikeluarkan dan didaftarkan atas nama Pang Hiok diisytiharkan batal dan tidak sah;

satu perintah bahawa Pendaftar Hakmilik, Pejabat Tanah daerah Kulai dan/ atau pejabat/ pegawai/ pentadbir/ pendaftar/ pentadbir tanah yang berkenaan hendaklah memproses dan mengisukan geran tanah bagi hartanah tersebut dan melakukan segala yang diperlukan untuk mendaftar hakmilik hartanah tersebut atas nama Plaintif dalam tempoh 30 hari dari tarikh perintah Mahkamah Yang Mulia ini; dan

secara alternatif, gantirugi sebagai ganti (yang akan ditaksirkan oleh Mahkamah yang mulia ini) dibayar oleh Defendan Pertama kepada Plaintif. The 1st Defendant’s case [13] It is the 1st Defendant’s contention that, in or about 1965 due to the financial problem cultivating corps on the Land, Lam Chen Khiong sold it to Pang Hiok for a purchase price of RM3,000.00. Pang Hiok also paid the consolidated annual charge of the Land on behalf of Lam Chen Khiong. Pursuant to the arrangement, Lam Chen Khiong agreed to substitute his name in the Register of Holding with Pang Hiok’s name. [14] Later, Lam Chen Khiong and Pang Hiok appointed a lawyer known as L.M Ong to prepare a power of attorney. On 10.4.1966, the 1966 PA was signed by Lam Chen Khiong. [15] After the death of Lam Chen Khiong on 14.4.1994, in 1996 Pang Hiok started developing the Land by clearing and planting rubber trees on it and had since paid the annual quit rent for the Land. [16] Pang Hiok passed away on 9.3.2015. [17] On 20.5.2015, the 1st Defendant’s solicitors published an advertisement in Sin Chew Newspaper looking for Lam Chen Khiong’s family relating to the Land. Whether the 1966 PA is valid [18] The crux of this OS undoubtedly revolves on the validity of the 1966 PA. The Plaintiff averred that the 1966 PA is null and void based on the following reasons, inter alia:

the 1966 PA was written in English whereas Lam Chen Khiong is a Chinese and unable to communicate in English; and

the 1966 PA was made, if any, without consideration and automatically revoked upon the death of Lam Chen Khiong. [19] Nevertheless, the 1st Defendant, in refuting the Plaintiff’s averment, submitted that the 1966 PA is valid as all ingredients for a valid power of attorney are complied with. The 1st Defendant contended that the 1966 PA was duly signed by Lam Chen Khiong before a lawyer and Pang Hiok paid RM3,000.00 in cash to Lam Chen Khiong as consideration for the 1966 PA. However, the 1st Defendant admitted that he is unable to produce the proof of the payment. The 1966 PA was also registered at the Senior Assistant Registrar Office in Johor Bahru on 14.5.1966 as to comply with s. 4 of the Power of Attorney Act 1949 (“PAA”). [20] To deal with this issue, below I reproduce the 1966 PA for ease of reference: [21] On close perusal of the 1966 PA, I find that the instrument was signed before an advocate and solicitor pursuant to s. 3(1)(a) of the PAA. However, there is nowhere mentioning in the 1966 PA that it is irrevocable neither the payment of RM3,000.00 as the consideration as advocated by the 1st Defendant. In the absence of these statements in the 1966 PA, by virtue of s. 5 of the PAA, such instrument was automatically revoked upon the death of Lam Chen Khiong on 14.4.1994. [22] Further, the 1966 PA contravenes s. 24(1) of the PAA which allows the assignment of the occupier’s right to a third party with the consent of the Collector and not the sale of the Land. The section reads – Assignment of rights of occupier in expectation of title 24.

Subject to the provisions of this Act, a holder in occupation of a rural holding in expectation of title may assign his rights in that holding to any individual person qualified in accordance with the provisions of section 9 and approved by the Collector, unless proceedings for re-entry under section shall have been commenced. [23] In Lai Hee Sang v. Pun Hai Chin[2016] CLJU 1622; [2016] 6 MLJ 434 the Court of Appeal held that – [23] Reverting back to the main stream of this suit, the respondent's right to occupy the said land/holding in expectation of title can only be assigned and cannot be sold under the Land (Group Settlement Areas) Act 1960. Section 24 of Land (Group Settlement Areas) Act 1960 provides:

Subject to the provisions of this Act, a holder in occupation of a rural holding in expectation of title may assign his rights in that holding to any individual person qualified in accordance with the provisions of section 11 19 and approved by the Collector, unless proceedings for re-entry under section 22 shall have been commenced. [24] Thus, the purported sale of the Land by Lam Chen Khiong to Pang Hiok vide the 1966 PA is clearly invalid. [25] Added to it, it also does not resonate why Pang Hiok only purportedly took action to execute the 1966 PA after the death of Lam Chen Khiong. There is no cogent reason given by the 1st Defendant why the action to execute the 1966 PA was only commenced on 30.10.2002, some 8 years after the death of Lam Chen Khiong. [26] In light of the above, I allow the Plaintiff’s relief on the declaration that the 1966 PA is null and void. I also declare that the representatives /administrators/ beneficiaries of Pang Hiok have no beneficial right on the Land. Whether the Plaintiff is the beneficial owner of the Land [27] The Plaintiff contended that Lam Chen Khiong is the beneficial and registered owner of the Land based on the record kept by the 2nd Defendant. [28] On this point, it is pertinent to note that Lam Chen Khiong is an occupier with permit in expectation of title under the GSAA. S. 10 of the GSAA says — Alienation 10.

Subject to the provisions of this Act, the Collector may, on behalf of the State Authority —

alienate any rural holding; and

permit the occupation of any rural or urban holding in expectation of title. [29] Not only that, Lam Chen Khiong’s name also had been registered under s. 12(1) of the GSAA. S. 12 of the GSAA reads – Occupation in expectation of title 12.

Authority to occupy any land within a group settlement area in expectation of title shall be given by an entry in the register of holdings to be maintained by the Collector in Form in the First Schedule.

Before entering in the register of holdings the name of any person in respect of an urban holding, the Collector may require the payment of all sums due in respect of the holding whether by way of premium, survey fees or otherwise together with the amount of the rent payable in respect of the first year of occupation.

No person shall by making any payment or deposit of any kind or by being recorded in a register of holdings or in any other way than by occupying a holding with the authority of the Collector in expectation of title be taken or deemed to have acquired any right to registration of title to such holding and such authority may be cancelled by the Collector at any time before title has been registered.

An entry under subsection (1) may be made in the register of holdings notwithstanding that any details relating to —

the lot numbers or area of any holding;

the amount of the consolidated annual charge or the period for which it shall be charged; or

the amount of rent which is, in due course, to be substituted for the consolidated annual charge, have not been obtained, if the Collector, by reason of non-completion of survey or of the lack of sufficient information for determining the consolidated annual charge or for any other sufficient reason, is satisfied that such details are not capable of being immediately obtained; and the Collector shall as soon as possible obtain, and include in the register of holdings, the said details. [30] It is my considered view that although Lam Chen Khiong was only given a permit to occupy the Land on 13.9.1965, he was not simply an occupier with permit. Section 10 of the GSAA above states it clearly that an occupier with permit under that section is in expectation of title. In short, this special law recognises that the occupiers with permits under the GSAA scheme are expected that ownership of the land would be given to them provided that all conditions in the GSAA are complied with by the occupiers. [31] In light of the above, I find that the Plaintiff being the sole administrator of the estate of Lam Chen Khiong is the beneficial owner of the Land pending the approval from the state authority. Whether the Registrar of Title or his representative has to issue the land title for the Land be registered under the Plaintiff’s name [32] Although I hold that the Plaintiff is the beneficial owner of the Land, he has no right to request or force the Registrar of Title or his representative to issue the land title for the Land be registered under the Plaintiff’s name. It is trite that the power to alienate a land under the GSAA lies with the state authority and not the Registrar of Title as spelt out in s. 10(1) of the GSAA. [33] Thus, the action of the 2nd Defendant on 12.11.2020 to send the application for the alienation of the Land to PTGJ who will later forward it to the state authority for final approval is in line with the requirement under the GSAA. [34] In the upshot, based on the aforesaid reason, I dismiss the Plaintiff’s relief for the Registrar of Title to register the Land under the Plaintiff’s name. Whether the Plaintiff is entitled for damages [35] In the OS the Plaintiff also claims for damages from the 1st Defendant. Nonetheless, there is no particular neither evidence produced by the Plaintiff to support his claim. [36] At this juncture I find instructive the case of PB Malaysia Sdn Bhd v. Samudra (M) Sdn Bhd [2008] 1 LNS 679; [2009] 7 MLJ 681, where Ramly Ali J (as His Lordship then was) held: "[52] Damages must be proved with real or factual evidence (as opposed to mere particulars, summaries, estimations or general conclusions) in order for a party to recover them. In Lee Sau Kong v. Leow Cheng Chiang [1961] MLJ 17 (CA), the Court of Appeal unanimously dismissed the respondent's counterclaim for damages due to lack of proof, in particular, p 20 where Thomson CJ held: As regards the claim, the trial judge did not make any finding of fact beyond saying that he believed the respondent's evidence and did not believe the evidence of the appellant. He accordingly gave judgment in favour of the respondent for $59,262.92. He has, however, given no indication as to how he arrived at this result. ... I regret, however, that I am compelled to disagree with the trial judge as to how much these damages should be. ... With regard to the claim for damages I would preface what I have to say by quoting the following passage from the judgment of Lord Goddard in the case of Bonham-Carter v. Hyde Park Hotel Ltd: ... plaintiff's must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the court, saying: 'This is what I have lost; I ask you to give me these damages.' They have to prove it. [37] Premised from the above, I dismiss the Plaintiff’s claim for damages against the 1st Defendant. [38] As for the costs, I order the parties to bear their own costs. Dated: 16.12.2024 -SIGNED- (SHAMSULBAHRI BIN HAJI IBRAHIM) Judge, High Court of Malaya, Johor Bahru Counsels: For the Plaintiff – Max Yong Boon Swee (Cho Cheng Yu and Lim Wei Wen with him); Messrs. Shui-Tai For the 1st Defendant – Yen Heng Teng; Messrs. Simon Tong & Partners For the 2nd Defendant – Mohamad Zulfadhli bin Tuah: Pejabat Penasihat Undang-Undang Negeri Johor Cases referred to:  Lai Hee Sang v. Pun Hai Chin[2016] CLJU 1622; [2016] 6 MLJ 434  PB Malaysia Sdn Bhd v. Samudra (M) Sdn Bhd [2008] 1 LNS 679; Legislations referred to:  Land (Group Settlement Areas) Act 1960 – s.10 & 12  Powers of Attorney Act 1949 – s.