Lau Tian Boon (Sebagai Setiausaha Dan Wakil Bagi Kwang Kheow Seah, Bagan Serai, Krian (No. Pertubuhan: 1272/63 Perak ) v MAJESTIC MEMORIAL PARK (BS) SDN BHD (A-02(NCvC)(W)-2061-10/2022)

This is an appeal in respect of a dispute over the failure to deliver vacant possession of land for purposes of the development of a columbarium.

The Appellant, who is the plaintiff in the High Court is the secretary and representative of the Kwang Keow Seah Association, Bagan Serai, Krian ( ).

The Respondent, who is the defendant in the High Court is a private limited company involved in the development and construction of memorial parks as well as providing funeral and interment services ( ).

We heard the appeal on 14th November 2024 and 24th February 2025. S/N rwa59k5QsEicUCFxYtj8Tw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

We thereafter adjourned our decision to deliberate on the intricate issue of the land rights where the columbarium is situated. This is determinative of the appeal here.

Now having so deliberated, we give our unanimous decision below together with the supporting reasons.

By a gazette notification no. 6754 dated 30th August 1932 ( ) made pursuant to the Land Code 1926, a piece of land was reserved as cemetery ( ). The Notification reads as follows: Serai, described in the schedule hereto, and delineated upon revenue survey plan no, 9,020, deposited in the office of the Superintendent of Revenue Surveys, Perak, Taiping, to be a reserve for the purpose of a place for interment of the dead of the Chinese Community, to be maintained by Bay Soo Yam and Bee Hup Seng or such other persons as the District officer, Krian, may appoint in writing. [8] Over the passage of time, the Land was eventually possessed and managed by the Association.

By a written Joint Venture Agreement dated 14th April 2006 Joint Venture Agreement ) made between the Company and the Association, the Company agreed to construct and manage a columbarium on the Land. The salient terms of the Joint Venture Agreement are as follows: (Please refer to the next page) S/N rwa59k5QsEicUCFxYtj8Tw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 S/N rwa59k5QsEicUCFxYtj8Tw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 S/N rwa59k5QsEicUCFxYtj8Tw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 S/N rwa59k5QsEicUCFxYtj8Tw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 S/N rwa59k5QsEicUCFxYtj8Tw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 S/N rwa59k5QsEicUCFxYtj8Tw **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 S/N rwa59k5QsEicUCFxYtj8Tw **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 S/N rwa59k5QsEicUCFxYtj8Tw **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 S/N rwa59k5QsEicUCFxYtj8Tw **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 S/N rwa59k5QsEicUCFxYtj8Tw **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 S/N rwa59k5QsEicUCFxYtj8Tw **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 S/N rwa59k5QsEicUCFxYtj8Tw **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 S/N rwa59k5QsEicUCFxYtj8Tw **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 S/N rwa59k5QsEicUCFxYtj8Tw **Note : Serial number will be used to verify the originality of this document via eFILING portal 17

During the course of development and construction of the columbarium, disputes arose between the parties in mid-2018. In this respect, the Association alleged that the Company, in breach of the Joint Venture Agreement, only built 2,400 columbarium lots instead of 10,000 lots.

Additionally, according to the Association, the Company also failed to make payment of RM174,189.60 as at 4th July 2018 in breach of the Joint Venture Agreement.

As a result, the Association on 20th July 2018 and again on 12th September 2018 served notices of default on the Company pursuant to sections 4.01(c) and 6.01 of the Joint Venture Agreement to rectify its breach.

However, purported inaction, the Association on 13th October 2018 terminated the Joint Venture Agreement pursuant to section 5.1 of the Joint Venture Agreement.

Consequently, the Association on 12th June 2019 initiated civil suit no. AB-22NCVC-14-06/2019 ( ) against the Company for breach of contract and claimed for the following reliefs (in Bahasa Malaysia):

Dan Plaintif memohon untuk perintah-perintah, relif-relif dan/atau remedi-remedi berikut: S/N rwa59k5QsEicUCFxYtj8Tw

19.1 Deklarasi bahawa Perjanjian yang bertarikh 14.04.2006 di antara Kwang ditamatkan dan menjadi batal dan tidak sah dan tidak berefek undang-undang pada 14.10.2006 atau pada tarikh lain yang ditentukan atau ditetapkan oleh Mahkamah Mulia ini; atau dalam alternatif, Deklarasi bahawa Perjanjian yang bertarikh 14.04.2006 di antara Kwang Kheow Seah dan Defendan (selepas ini 18.10.2018 atau pada tarikh lain yang ditentukan atau ditetapkan oleh Mahkamah Mulia ini;

19.2 Deklarasi bahawa Kwang Kheow Seah berhak mendapat pemilikan kosong iaitu vacant possession Hartanah yang dipegang di bawah Lot No. 7654 Mukim Bagan Serai District of Krian seluas lebih kurang 4 Ekar 3 Rood 12 Pole yang telah diwartakan sebagai Rizab Tanah Perkuburan Cina vide G.N. 6754 tarikh penamatan Perjanjian Tersebut;

19.3 Defendan hendaklah menyerah balik pemilikan dan possessi kosong Hartanah Tersebut kepada Kwang Kheow Seah dengan serta merta;

19.4 Defendan hendaklah dalam tempoh 14 hari dari tarikh perintah ini menyerah kepada Kwang Kheow Seah salinan-salinan asal perjanjian-perjanjian jual beli untuk lot-lot Columbarium yang dibina di atas Hartanah menurut, mengikut atau berhubung Seksyen 4.05 Perjanjian Tersebut;

19.5 Defendan hendaklah dalam tempoh 14 hari dari tarikh perintah ini menyediakan dan mengemukakan kepada Kwang Kheow Seah penyata akaun untuk jualan lot-lot Columbarium Tersebut yang telah dibuat atau yang telah dilaksanakan oleh Defendan;

19.6 Defendan hendaklah dalam tempoh 21 hari dari tarikh perintah ini membayar kepada Kwang Kheow Seah 100% atau dalam alternatif 20% daripada harga-harga yang disenaraikan oleh Defendan tanpa apa-apa diskaun untuk lot-lot Columbarium Tersebut yang telah dijual oleh Defendan sebelum tarikh penamatan Perjanjian Tersebut dan yang Defendan belum, abai dan/atau gagal membayar kepada Plaintif dan/atau Kwang Kheow Seah menurut Seksyen 6.01 Perjanjian Tersebut;

19.7 Defendan hendaklah dalam tempoh 21 hari dari tarikh perintah ini membayar kepada Kwang Kheow Seah harga-harga yang disenaraikan oleh Defendan dengan penuh dan tanpa apa-apa diskaun untuk lot-lot Columbarium Tersebut yang telah dijual oleh Defendan selepas tarikh penamatan Perjanjian S/N rwa59k5QsEicUCFxYtj8Tw Tersebut dan yang Defendan belum, abai dan/atau gagal membayar kepada Plaintif dan/atau Kwang Kheow Seah;

19.8 Defendan hendaklah dalam tempoh 14 hari dari tarikh perintah ini menyediakan dan mengemukakan kepada Plaintif dan/atau Kwang Kheow Seah penyata akaun untuk Sinking Fund (seperti yang ditakrif dalam Perjanjian Tersebut) yang ditubuhkan menurut Seksyen 7.02 Perjanjian Tersebut dan menyerah kawalan dan pengurusan Sinking Fund kepada Plaintif dan/atau

19.9 Ganti rugi umum atau am untuk ditaksirkan atas kegagalan Defendan menyerah balik pemilikan Hartanah Tersebut selepas tarikh penamatan Perjanjian Tersebut untuk dibayar oleh Defendan kepada Plaintif dan/atau Kwang Kheow Seah dan/atau atas kegagalan Defendan untuk memperolehi kebenaran merancang dan/atau perakuan siap dan pematuhan untuk Columbarium Tersebut dan/atau indemniti dan tanggung rugi penuh daripada Defendan kepada Plaintif dan/atau Kwang Kheow Seah terhadap semua tuntutan-tuntutan dan/atau liabiliti-liabiliti yang timbul secara langsung atau tidak langsung dari kerja atau atau tindakan atau peninggalan Defendan berkenaan Columbarium Tersebut;

19.10 Faedah-faedah pada kadar 8% setahun ke atas jumlah-jumlah yang hendak dibayar oleh Defendan kepada Plaintif dan/atau Kwang Kheow Seah menurut perintah ini daripada tarikh saman ini sehingga penyelesaian penuh atau untuk kadar lain atau tempoh lain yang ditentukan atau ditetapkan oleh Mahkamah Mulia ini;

19.11 Defendan dengan segera dan serta merta berhenti dan dilarang menangani atau memperlakukan atau mengendalikan kawalan harian atau pengurusan harian atau operasi harian Columbarium Tersebut atau jualan lot-lot Columbarium Tersebut;

19.12 Lain-lain perintah-perintah, relief-relief dan/atau remedi-remedi alternatif dan/atau lanjut sebagaimana yang dianggap wajar, adil dan/atau saksama oleh Mahkamah Mulia ini; dan

19.12 Defendan hendaklah membayar kepada Plaintif dan/atau Kwang Kheow Seah kos yang ditentukan atau ditetapkan oleh Mahkamah Mulia ini. [15] contended that the Columbarium was indeed designed and built for S/N rwa59k5QsEicUCFxYtj8Tw 10,000 columbarium lots but only 2,400 columbarium lots were fastened on the columbarium building based on the demand and requirement of purchasers of the columbarium lots to keep urns containing their ancestral cremated ashes there. [16] ant to the Joint Venture Agreement, the Company replied that there were problems because of the change of committee members of the Association. Hence, the parties re-negotiated the Joint Venture Agreement in 2017. They settled on the basis of varying the outstanding payment arrears of 2015 and 2016 to be paid within a year from 18th April 2017. The Company had accordingly complied with the varied terms of the outstanding payment. However, the Association, acting in bad faith, refused to accept the payment of RM174,189.60 as demanded, on the premise that it no longer wished to remain bound by the Joint Venture Agreement, despite the Company having invested approximately RM2,700,000.00 in the development and construction of the columbarium. [17] Additionally, right to possession and control of the Land, and consequently, its capacity to validly enter into the Joint Venture Agreement with the Company. The Company thus contended that the Association had committed actionable misrepresentation and/or breach of contract, and counterclaimed for the following reliefs (in Bahasa Malaysia):

Oleh itu Defendan menuntut balas terhadap Plaintif seperti berikut: a) Satu deklarasi bahawa Perjanjian yang dimasuki Plaintif dan Defendan bertarikh 14.4.2006 adalah dimansuhkan (rescinded); S/N rwa59k5QsEicUCFxYtj8Tw b) Defendan diawadkan dengan pampasan atas kenikmatan yang diperolehi melalui Perjanjian tersebut; c) Defendan diawadkan dengan gantirugi khas dan/atau am untuk ditaksir oleh Timbalan Pendaftar; d) Kos;dan e) Lain-lain manfaat dan perintah yang difikir sesuai dan patut oleh Mahkamah Yang Mulia ini. [18] After trial, the learned High Court judge dismissed the parties respective claim and counterclaim ( ). The learned High Court judge in essence held as follows in the grounds of judgment reported in [2024] CLJU 397: To recap, in a nutshell, case of the plaintiff in its entirety stems from the JVA entered into with the defendant. Subject matter of the JVA is a piece of land which does not belong to the plaintiff or defendant, but a reserved land vested with the State Authority, which is reserved for the betterment and benevolence of the Chinese community at Bagan Serai, Perak. The principal document governing the administration and management of the reserved land is a Gazette Notification No. 6754 dated 30.8.1932 which provides in no uncertain terms that the Controller of the land is the District Officer and in the interim, maintainers of the land were BSY and BHS who were trustees appointed to maintain and manage the impugned land. But time has revealed that both the maintainers are now deceased and no new trustees, including the plaintiff or defendant were appointed by the State Authority to maintain the said land. As such the plaintiff, in fact and law, does not have ownership of the land, from the outset, what more to have possession of the said land. It in fact has no locus standi to enter into the JVA to allow the defendant to build and manage a columbarium, for the sole purpose of storing the ashes of the dead. Albeit not having ownership and possession of the said land, the plaintiff has enriched itself by the toil and sweat of the defendant who has built and manage a columbarium and by sale of the lots, the profits derived were paid to the plaintiff faithfully. Although enriched, the plaintiff has now claimed from the defendant, in the main, vacant possession of the impugned land on the basis that - S/N rwa59k5QsEicUCFxYtj8Tw -compliance with the JVA, as the defendant was supposedly to have built 10,000 lots but it had only completed 2400 lots, and the retort by the defendant, evidentially, which is so logical and probable, that the supply of lots is much dependent on the demand by the Chinese community at Bagan Serai to utilise the said lots for the remains of their loved ones, whom are dead and gone in eternity. It is also in evidence, that the columbarium built could contain 10,000 lots. The evidence remained unrebutted. Despite the retort, the plaintiff has deemed it fit to mount a claim against the defendant, thus leaving the claim to be unfounded and baseless. columbarium lots were not duly paid to the plaintiff, but evidence adduced and on a balance of probabilities demonstrates that the defendant had made positive attempts to pay the plaintiff, but the defendant had refused to accept it, and had also wavered, as there were times, it had accepted it with no issues raised. But yet the plaintiff has remained agonized and persistent in wanting vacant possession of the land which is vested with the State Authority. Despite that, the plaintiff had relentlessly mounted a claim against the defendant. had insidiously applied for ownership of the land from the State Authority. On a balance of probabilities, the defendant was faultless in doing so as they are on equal footing with the plaintiff to have ownership and possession of the said land which is reserved not for the plaintiff but historically for the benefit and benevolence of the Chinese community at Bagan Serai. [47] Hence, in sum total, the plaintiff has no right of ownership or possession of the impugned land, for it to pursue this claim against the defendant, thus rendering it to be frivolous and vexatious. The plaintiff seemed to have clutched at straws. There are also cracks in the case by plaintiff. The witnesses who testified for the plaintiff were not from the old committee whom had agreed with the defendant over the JVA vis its effort and costs expended on the columbarium. Therefore, pursuit of the claim against the defendant for vacant possession of the land on which the columbarium is situated at the behest of the new committee is both frivolous and vexatious. As agreed upon in the JVA, the defendant was entrusted to build and manage a columbarium at its own cost and expense. By virtue of the entrustment, it has rightfully turned aggressive on the sale of lots, but the plaintiff with the composition of its new committee members have now attempted to put a spoke in the defendant's wheel, by claiming vacant possession of the impugned land, which from the outset does not belong to them but vested in the State Authority. S/N rwa59k5QsEicUCFxYtj8Tw [48] In the premise, claim by plaintiff is dismissed with costs. Likewise, since status quo of the defendant subsists, their counter claim is also dismissed with [19] The Association is dissatisfied with the Decision and has on 27th October 2022 lodged its appeal to the Court of Appeal. [20] However, the Company neither lodged a cross appeal nor filed a separate appeal against the Decision. FINDINGS OF THIS COURT [21] Since this is an after-trial Judgment, our function here is merely that of review based on the record of appeal. [22] In Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416 (CA), Abdul Wahab Patail JCA held as follows with emphasis added by us: Both parties began their submissions with the clear understanding that an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts in the trial judge. They cited this court in Sivalingam Periasamy v. Periasamy & Anor [1996] 4 CLJ 545 CA; [1995] 3 MLJ 395 CA. This general principle was adopted by this court in Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19 and other cases. It is clear it is a general principle and that there are exceptions when appellate intervention is necessary to ensure justice is done. In the cases regularly cited, the terms "intervene" and "interfere" are used interchangeably. A more precise use of terminology would remove much unnecessary confusion and argument. It is more precise to say that an appellate court will intervene to correct an injustice when it is shown to have occurred in the trial court, but it would be an interference otherwise. S/N rwa59k5QsEicUCFxYtj8Tw [7] There is almost no limit to the range within which cases in court may vary. At one end there are cases that involve solely questions of law, and no facts are disputed. On the other there are cases that involve no law but all the facts are disputed. Within these cases there may be cases with disputed facts that involve solely interpretation and inferences leading to a conclusion on a finding on the disputed fact, and there may be other cases with disputed facts that involve solely oral evidence and the finding depends entirely upon an assessment of the credibility of witnesses who testified and were tested before the trial judge. [8] Hence, the proper approach is that if (a) it is shown that the judgment cannot be explained or justified by the special advantage enjoyed by the trial judge by reason of having seen and heard the witnesses testify and being tested before him, and (b) an injustice is demonstrated to have been occasioned by any error by the trial judge, for example:

the judgment is based upon a wrong premise of fact or of law;

there was insufficient judicial appreciation by the trial judge of the evidence of circumstances placed before him;

the trial judge has completely overlooked the inherent probabilities of the case;

that the course or events affirmed by the trial judge could not have occurred;

the trial judge had made an unwarranted deduction based on faulty judicial reasoning from admitted or established facts; or

the trial judge had so fundamentally misdirected himself that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion; an appellate court will intervene to rectify that error so that injustice is not occasioned On appeal, Zulkefli Makinuddin CJ (Malaya) (later PCA) reiterated as follows in Conlay Construction Sdn bhd v. Perembun (M) Sdn Bhd S/N rwa59k5QsEicUCFxYtj8Tw [2014] 1 MLJ 80 (FC) on principles of appellate intervention with emphasis added by us: OA to have set aside the decision of the High Court in the circumstances of the case. The COA could only do so in a case of this nature if the trial judge was plainly wrong in coming to her decision. The case before the High Court involved findings of fact. Unless the trial judge was plainly wrong, it was not open to the COA to have intervened even to the limited extent of ordering a retrial [23] Moreover, in Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309 (FC), Steve Shim CJ (Sabah and Sarawak) held as follows with emphasis added by us: In gist, the pivotal question raised by the appellants was whether the term "insufficient judicial appreciation of the evidence" used by the Court of Appeal constituted a new test for appellate intervention. We think it is important to examine this proposition in the light of what the Court of Appeal had said in its judgment beginning from para. 27 which we have reproduced earlier but repeated herein for the purpose of emphasis. It states: Suffice to say that we re-affirm the proposition that an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its conclusion. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence. It is, we think, appropriate that we say what judicial appreciation of evidence involves. And the Court of Appeal went on to explain in para. 28 as follows: A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness test it against relevant criteria. He must also test the evidence of a particular witness against the probabilities of the case. S/N rwa59k5QsEicUCFxYtj8Tw In making the observations above, the Court of Appeal cited the following cases: Tindok Besar Estate Sdn Bhd v. Tinjar Co. [1979] 1 LNS 119; [1979] 2 MLJ 229; Muniandy & Ors. v. Public Prosecutor [1966] 1 LNS 110; [1966] 1 MLJ 257; Dr. Shanmuganathan v. Periasamy s/o Sithambaram Pillai [1997] 2 CLJ 153, Yusoff bin Kassim v. Public Prosecutor [1992] 3 CLJ 1535; [1992] 1 CLJ (Rep) 376; Rex v. Low Toh Cheng [1941] MLJ 1; Tengku Mahmood v. Public Prosecutor [1974] 1 LNS 176; [1974] 1 MLJ 110; Choo Kok Beng v. Choo Kok Hoe & Ors [1984] 1 LNS 40; [1984] 2 MLJ 165; Armagas Ltd v. Mundogas SA ("The Ocean Frost") [1985] 1 L1 R 1; State of Rajasthan v. Hanuman (AIR) [2001] SC 282, 284; Tek Chand v. Dile Ram (AIR) [2001] SC 905. In our view, the Court of Appeal in citing these cases had clearly borne in mind the central feature of appellate intervention ie, to determine whether or not the trial court had arrived at its decision or finding correctly on the basis of the relevant law and/or the established evidence. In so doing, the Court of Appeal was perfectly entitled to examine the process of evaluation of the evidence by the trial court. Clearly, the phrase "insufficient judicial appreciation of evidence" merely related to such a process. This is reflected in the Court of Appeal's restatement that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. The Court of Appeal further reiterated the principle central to appellate intervention ie, that a decision arrived at by a trial court without judicial appreciation of the evidence might be set aside on appeal. This is consistent with the established plainly wrong test. In the circumstances and for the reasons stated, there is no merit in the appellants' contention that the Court of Appeal had adopted a new test for appellate intervention. In our view, what the Court of Appeal had done was merely to accentuate the established plainly wrong test consistently applied by the appellate courts in this count See also Ng Hoo Kui & Anor v. Wendy Tan Lee Pheng, Administrator of the Estates of Tan Ewe Kwang, deceased & Ors [2020] 10 CLJ 1 (FC). [24] From the contentions advanced by the parties, the pivotal issue, to our minds, is whether the Association had the legal capacity to enter into S/N rwa59k5QsEicUCFxYtj8Tw the Joint Venture Agreement with the Company. This is core and central to the inviolability of the Joint Venture Agreement. [25] After a careful scrutiny of the record of appeal, we find it plain from the Notification that the ownership of the Land resided with the Resident of Perak ( ) who accordingly exercised his powers to reserve the Land for interment of the dead of Chinese Community pursuant to the then s. 24(i) of the FMS Land Code 1926 (Cap 138). Interment as stated in the Notification is defined in the Concise Oxford English Dictionary 11th [26] Upon the coming into force of the National Land Code 1965 ( ) which repealed and replaced the FMS Land Code, the ownership of the Land is hence vested in the State Authority. [27] We find from the Notification that whilst the ownership of the Land vested in the Resident, he appointed Bay Soo Yam and Bee Hup Seng as maintainers of the Land. The District Officer of Krian is further empowered by the Resident to appoint in writing other persons as maintainer. Thus, these maintainers are licensees who had been given possession of the Land to maintain the cemetery. [28] We further find from the evidence adduced at the trial in the High Court that both Bay Soo Yam and Bee Hup Seng are deceased. The District Officer of Krian, Helmi bin Yusof @ Jusoh who is the Yang Di Pertua Majlis Daerah Kerian testified that the Association has been the manager, controller and maintainer of the Land. However, we noticed that the appointment of the Association as the maintainer of the Land in writing S/N rwa59k5QsEicUCFxYtj8Tw was only made on 10th October 2024, to wit, 2 years after the making of the Decision. [29] The Company principally contended that the Association which is not the registered proprietor of the Land is incompetent to enter into the Joint Venture Agreement to develop and build a columbarium on the Land. The Association is at best merely a maintainer in possession of the Land to maintain the cemetery. Reliance has been made on the case of Yap Chiang v. Koh Sau Choon & Anor [2007] 4 MLRH 399 where Abdul Wahab Patail J (later JCA) held as follows: The plaintiff asserted that it is her right to the possession of the land. But other than that, its name is Kwong Tong Cemetery Management Kuala Lumpur, and formerly known as the Kwong Tong Cemetery Kuala Lumpur, there is no evidence that the plaintiff is an association authorised by the relevant authority to have the management of the land reserved for a Chinese cemetery. The registration papers, change of name and rules of the association does not create any right or title which must be given by the relevant authority. The Sessions Court in Kuala Lumpur in Civil Suit 82-19734-86 had granted orders in favour of the plaintiffs who were trustees of the Kwong Tong Cemetery. There was a trial and evidence were adduced and accepted the plaintiffs' evidence: ... Seperti yang telah dipersetujui oleh peguam plaintiff oleh sebab tanah tersebut adalah tanah rizab dan plaintif bukan pemilik berdaftar atau pun orang yang mempunyai apa-apa kepentingan bagi tanah tersebut tetapi jelas dari keterangan SP1 bahawa plaintiff pemegang amanah dan mempunyai pengawalan ke atas tanah tersebut. Pemberitahuan warta, menggariskan kuasa yang diberi kepada plaintif untuk memelihara tanah tersebut bagi pihak kaum Kantonis. Dengan itu saya percaya bahawa plaintif mempunyai locus standi memulakan tindakan ini terhadap kedua-dua defendan. [13] In that case judgment was granted in favour of the then trustees. In her judgment the judge of the Sessions Court referred to a Government Gazette No. 1604 that stated "... to be a reserve for the purpose of Cantonese cemeteries, to be maintained by the Trustees of the Cantonese cemetery, Kuala Lumpur. S/N rwa59k5QsEicUCFxYtj8Tw [21] In light of the fact that its authority is disputed in this case, it behoves the plaintiff to adduce evidence of authority. In the absence of any evidence of such authority, the plaintiff has no standing under O. 89 to maintain this action as it cannot then maintain a right to possession. The plaintiff and the defendants are in similar position or standing of persons seeking occupation of reserve land. Without evidence of authority the plaintiff is in no better position than the defendants to occupy the reserved land, and to seek to remove the defendants [30] Upon our review and examination of the provisions of the NLC, we find that the ownership of the Land resides in the State Authority. The State Authority acts through the Director of Lands and Mines when exercising powers of disposal pursuant to s. 42 NLC which include alienation and reservation of land. It is provided as follows in s. 42 NLC:

Powers of disposal

Subject to subsection (2), the State Authority shall have power under this Act:

to alienate State land in accordance with section 76;

to reserve State land, and grant leases of reserved land, in accordance with the provisions of Chapter 1 of Part Four;

to permit the occupation of State land, reserved land and mining land under temporary occupation licences issued in accordance with the provisions of Chapter 2 of Part Four;

to permit the extraction and removal of rock material from any land, other than reserved forest, in accordance with the provisions of Chapter 3 of Part Four;

to permit the use of air space on or above State land or reserved land in accordance with the provisions of Chapter 4 of Part Four provided that such air space shall be within the confines of a structure of any description erected thereon. S/N rwa59k5QsEicUCFxYtj8Tw

Nothing in this Act shall enable the State Authority:

to dispose of any land for the purposes of mining (within the meaning of any written law for the time being in force relating to mining);

to permit the extraction or removal of rock material from any land for the purpose of obtaining metal or mineral therefrom;

to dispose of any land for the purpose of the removal of forest produce therefrom; or

to alienate any land so as to have the effect of less than two-fifths of a hectare of land subject to the category "agriculture" or to any condition requiring its use for any agricultural purpose being held by more than one person or body, provided that the State Authority may, under exceptional circumstances, alienate such land to more than one person or body notwithstanding that it is less than two-fifths of a hectare. There is no evidence here that the Director General of Lands and Mines on behalf of the State Authority has alienated the Land or any part thereof to the Association or authorised the Association to develop and build the columbarium thereon. The State Authority merely continued to recognise the Land as reserved land for cemetery based on the Notification. [31] In this regard, we further find that whilst the District Officer being an official pursuant to the Local Government Act 1976 may appoint the Association based on the Notification to maintain the Land reserved as cemetery, the nature of the maintenance must be to keep the Land fit and suitable for usage as a cemetery. It is clear from ss. 52(1) and (2) of the NLC that a columbarium may only be erected on alienated land categorised as building. However, the Land in the present case is not alienated land but State reserved land for purposes of cemetery only. It is provided as follows in ss. 52(1) and (2) of the NLC: S/N rwa59k5QsEicUCFxYtj8Tw

Categories of land use and application thereof to lands alienated under this Act

For the purposes of this Act there shall be three categories of land use, to be known respectively as "agriculture", "building" and "industry"; and, subject to subsection (5), where any land is alienated under this Act:

there shall be endorsed on the document of title thereto such one of those categories as the State Authority may have:

prescribed by a notification having effect in relation thereto under subsection (2); or

(ii) in the absence of any such notification, determined in relation thereto pursuant to subsection (3); and

the conditions to which the land becomes subject shall include accordingly:

such express conditions as may be imposed by the State Authority by virtue of section 121 or 122; and

(ii) such implied conditions as are applicable thereto by virtue of section 115, 116 or 117.

The State Authority may, by notification in the Gazette, specify any area of the State, and prescribe a category of land use in relation thereto for the purposes of this section; and that category shall be the one to be endorsed under subsection (1) on the alienation pursuant to any approval given after the notification is published of any State land in that area which has not at any previous time been alienated. The District Officer of Krian therefore neither has the right nor power to permit the Association to give possession to the Company to develop and build columbarium on State land reserved for the sole purpose of cemetery. S/N rwa59k5QsEicUCFxYtj8Tw [32] In any event, we also find that, crucially, the Association did not even have the right to maintain the Land at the point of entry of the Joint Venture Agreement because there was no appointment in writing of the Association as maintainer of the Land by the District Officer at that material time. There is plainly also no lease or temporary occupational license issued to the Association by the Director General of Lands and Mines on behalf of the State Authority pursuant to ss. 63 and 66 of the NLC respectively. Albeit the Association might have actual possession of the Land, we hold that that constituted adverse possession which did not extinguish the title of the owner or confer any legal right in any way; see Yap Lai Yoke v. Chin Fook Wah [1984] 1 MLRA 331 (FC).We are mindful that the Association raised s. 116 of the Evidence Act 1950 ( ) as estoppel against the Company challenging its right to title of the Land. It is provided as follows in s. 116 EA:

Estoppel of tenant and licensee of person in possession No tenant of immovable property, or person claiming through the tenant, shall during the continuance of the tenancy be permitted to deny that the landlord of that tenant had at the beginning of the tenancy a title to the immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that that person had a title to such possession at the time when the licence was given. We however find that s.116 EA is inapplicable because we are in substance neither dealing with a tenancy nor possessory license. The object of s. 116 EA, in our view, is to prevent the tenant or licensee denying the landlord or licensor its contractual rent due but this is not the case here. S/N rwa59k5QsEicUCFxYtj8Tw [33] In the premises, we find that the learned High Court judge did not err or was plainly wrong in any way to warrant our appellate intervention on this pivotal issue that the Association has no locus standi to enter into the Joint Venture Agreement. T

4.02(b) of the Joint Venture Agreement that gives it power to enter into the Joint Venture Agreement with the Company is fallacious. [34] It follows from the circumstances here that since the Association did not have the legal capacity to enter into the Joint Venture Agreement, the Joint Venture Agreement cannot legally be performed. It is provided as follows in s. 57 of the Contracts Act 1950:

Agreement to do impossible act

An agreement to do an act impossible in itself is void. Contract to do act afterwards becoming impossible or unlawful

A contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Compensation for loss through non-performance of act known to be impossible or unlawful

Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, the promisor must make compensation to the promisee for any loss which the promisee sustains through the non-performance of the promise. [35] The Joint Venture Agreement is therefore void and this renders the issues of breaches particularly the termination of the Joint Venture Agreement by the Association academic. S/N rwa59k5QsEicUCFxYtj8Tw [36] The learned High Court judge in conclusion dismissed the d. [37] We agree with the learned High Court judge dismissal of the to have been entitled to the remedy as accorded by s. 57(3) of the Contracts Act 1950. But since there is no cross appeal or separate appeal by the Company on the dismissal of its counterclaim, we will not further deal with it. [38] For completeness, we are mindful of the contention raised at trial in the High Court that the columbarium has been illegally built without the requisite planning permission given by the local authority. This may attract penalty including criminal liability under the Town and Country Planning Act 1976 and/or Street Drainage and Building Act 1974. It is unnecessary for us to delve into it as this issue has become otiose in the light of our finding above in regard to the legal capacity issue. Besides, the parties have not forcefully canvassed the same before us. S/N rwa59k5QsEicUCFxYtj8Tw CONCLUSION [39] For the foregoing reasons, the appeal is unanimously dismissed and the decision of the High Court is affirmed. We give costs of RM 25,000.00 to be paid by the Association to the Company subject to allocator. Dated this 25th June 2025 Sgd. LIM CHONG FONG JUDGE COURT OF APPEAL S/N rwa59k5QsEicUCFxYtj8Tw LIST OF COUNSELS: Counsels for the Appellant Ignatius Ho Solicitors for the Appellant MESSRS. WOON CHOON No. 84, Tingkat atas, Jalan Tupai, 34000 Taiping, Perak, Malaysia. Counsel for the Respondent Soong Tze Toong Solicitors for Respondent MESSRS. BH KOH, SOONG, ZARIN & PARTNERS No. 1A & 3A, Medan Istana 2, Bandar Ipoh Raya, 3000 Ipoh, Perak, Malaysia. STATUTE/LEGISLATION REFERRED TO: s. 42, ss. 52(1) and (2), s. 63 and 66 of the National Land Code 1965; s. 116 of the Evidence Act 1950; and s. 57 of the Contracts Act 1950. CASES REFERRED TO: Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416; Conlay Construction Sdn bhd v. Perembun (M) Sdn Bhd [2014] 1 MLJ 80; Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; Ng Hoo Kui & Anor v. Wendy Tan Lee Pheng, Administrator of the Estates of Tan Ewe Kwang, deceased & Ors [2020] 10 CLJ 1; Yap Chiang v. Koh Sau Choon & Anor [2007] 4 MLRH 399; and Yap Lai Yoke v. Chin Fook Wah [1984] 1 MLRA 331. S/N rwa59k5QsEicUCFxYtj8Tw