Lee Wee Choong v Teh Ching Yan (B-02(A)-650-03/2018)

1 IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: B-02(A)-650-03/2018 BETWEEN

1. LEE WEE CHOONG (I.C. NO: 730507-10-5579) TRADING UNDER THE NAME & STYLE OF WCE ELECTRICAL SERVICES (BUSINESS REG. NO: 001135686)

2. LEE SANG AN (I.C. NO: 1217200 … APPELLANTS AND

1. TEH CHING YAN (I.C. NO: 761016-08-5640)

2. CHOW NYOKE FOONG (I.C. NO: 551104-10-5116) … RESPONDENTS [In the Matter of the High Court of Malaya at Shah Alam In the State of Selangor Darul Ehsan Originating Summons No: BA-24-559-05/2017 In the Matter of Land HS (D) 173796 No. PT Lot 636 Section 15, Bandar Kajang, Daerah Ulu Langat, Negeri Selangor And In the Matter of Order 89 Rule 1 of the Rules of Court 2012 Between

1. Teh Ching Yan (I.C. No: 761016-08-5640)

2. Chow Nyoke Foong … Plaintiffs 2 And

1. Lee Wee Choong (I.C. No: 730507-10-5579) Trading under the Name & Style Of WCE Electrical Services (Business Reg. No: 001135686)

2. Lee Sang An (I.C. No: 1217200 … Defendants] CORAM: TENGKU MAIMUN BINTI TUAN MAT, JCA ABANG ISKANDAR BIN ABANG HASHIM, JCA MARY LIM THIAM SUAN, JCA JUDGMENT OF THE COURT [1] The respondents sought vacant possession of land known as HS(D) 173796 PT Lot No. 636 located at Section 15 of Bandar Kajang in the State of Selangor Darul Ehsan [“the said land”], invoking the summary process available under Order 89 of the Rules of Court 2012. The order was granted by the learned Judge despite protestations of the appellants who sought to 3 show the numerous material factual and triable issues which required determination and resolution by the Court. [2] After hearing and considering the submissions of the parties and the records of appeal, we were in unanimous agreement with the appellants that the summary procedure utilized by the respondents was highly unsuitable in the present appeal. The appeal was consequently allowed; and, the reasons in full are these. Factual background [3] By notice dated 26.1.2017, the respondents sought to evict the appellants from “Lot 636”. The respondents claimed that the appellants were squatters who had without their permission unlawfully erected a shop on Lot 636 and from which the 2nd appellant first ran his business and the 1st appellant subsequently took over and operated a business known as “WCE Electrical Services”. [4] The appellants refuted the allegation that they were squatters on the respondents’ land [Lot 636], claiming instead that they occupied Lot 637 and were in fact the beneficial owners of a portion of a shophouse that was built on Lot 637. According to the 2nd appellant, he had lived in that shophouse for the last 40 years. [5] The 2nd appellant claimed that he had bought a portion of a shophouse that was built on Lot 637 from Kuo Jee Bouh @ Khoo Yoke Moy (P) and 4 Chew Ah Soon @ Chew Nee Siew for the fully-paid up sum of RM12,000.00 vide agreement dated 15.9.1981 [“the said SPA”]. That agreement identified the shophouse to be sold as “784 Sungei Chua, Kajang” [“the said property”]. That shop was duly registered under the Registration of Businesses Ordinance 1956 since 5.2.1971 and licensed since 20.5.1993. According to the 2nd appellant, the shop was always identified as being located on “Lot 637” and bearing the address of “784 Kg Baru Sg Chua 43000 Kajang. [6] Ever since the purchase, the 2nd appellant had been paying the annual quit rent and the relevant assessment rates imposed by Majlis Daerah Hulu Langat/Majlis Perbandaran Kajang, the relevant local authority at the material time. The 2nd appellant had also settled all utility bills incurred in respect of the said property. The receipts of such payments had always specified that the payments were in respect of “Lot 637”. [7] In 2008, the 2nd appellant’s son, the 1st appellant, started to use the shop as the branch office for his business known as “WCE Electrical Services”. After his son ceased operations from the said property, the 2nd appellant claimed that he continued to use the shop to store his stocks and equipment. [8] The appellants claimed that the respondents inter alia: i. did not approach the Court with clean hands as they were aware of the said SPA and of the presence of the appellants on the said land; 5 ii. acted wrongfully and with mala fides when they applied for the alienation of the said land to their own names despite knowing the presence of the appellants and the SPA; iii. were estopped from denying the ownership and interest of the 2nd appellant; iv. held 784 Sungei Chua, Kajang on trust for the 2nd appellant. [9] The appellants claimed that given the many disputes of facts and law, the summary procedure pursuant to Order 89 of the Rules of Court 2012 was not appropriate. [10] The respondents contended that the appellants was advised at the material time of the SPA and the construction of the shop, that being squatters on the said land which was actually owned by the State Government, the said land may be repossessed by its rightful or registered owners at any time. Since the appellants were unable to show the State Government’s consent to their occupation or the construction of the shop, and given the evidence showing that the shop had encroached on the respondents’ said land, the respondents were entitled to possession. In any event, the SPA was unenforceable as the land had not been alienated to the sellers, Kuo Jee Bouh @ Khoo Yoke Moy and Chew Ah Soon @ Chew Nee Siew at the time of entry of the SPA. 6 Decision of the High Court [11] The High Court rejected the appellants’ arguments. The learned Judge was of the view that since the respondents were undisputedly the registered owners of the said land, that ownership was indefeasible. Further, the terms of the SPA showed that the parties had acknowledged that the sellers had built a “squatter shophouse” on land owned by the State Government at the material time, and that the building of such shophouse was without the consent of the State Government. Her Ladyship was also of the view that the appellants’ payment of the assessments was not evidence of their interest over the said land. Consequently, summary possession was ordered. Our decision [12] The principles at play in respect of Order 89 of the Rules of Court 2012 are trite. In the decision of Bohari bin Taib & Ors v Pengarah Tanah Galian Selangor [1991] 1 MLJ 343, Mohamed Azmi SCJ in delivering the judgment of the Federal Court, accepted the submissions of counsel for the appellant that Order 89 is the reproduction of the English O 113, and that the procedure is: “…summary, simple and speedy, ie it is intended to operate without a plenary trial involving the oral examination of witnesses and with the minimum of delay, expense and technicality. Where none of the wrongful occupiers can reasonably 7 be identified the proceedings take on the character of an action in rem, since the action would relate to the recovery of the res without there being any other party but the plaintiff. On the other hand, like the default and summary procedures under O 13 and O 14, this Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, ie where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation of the land without licence or consent and without any right, title or interest thereto.” [13] This principle has been followed in a long line of cases including Mohd Rawi bin Yaacob v Federal Land Development Authority [1991] 1 MLJ 123, and Salim bin Ismail & Lain-Lain v Lebbey Sdn Bhd (No. 2) [1997] 2 MLJ 4. [14] In Bohari’s case, the Federal Court found the issue of whether there was licence or consent to the appellant’s occupation of the land for farming purposes was itself a triable issue; hence the summary procedure under O 89 was not suitable. The Federal Court added that: “In our opinion, for the purpose of the summary procedure, a distinction should be made between squatters simpliciter who have no rights whatsoever, and occupiers with licence or consent, and as well as tenants and licensees holding over. It may be impossible to establish the existence of any triable issue in the case of bare squatters, but the position of tenants and licensees holding over, or persons occupying with implied or expressed consent of the owner may be different.” 8 [15] In the present appeal, the precise location of the respondents’ said land in relation to the appellants’ said property is actually unclear. There is evidence from the SPA, that the appellants’ said property is actually located at 784 Sungei Chua, New Village, Kajang [see page 164, record of appeal], and that this address in turn is located on “Lot 637” – see pages 90, 92, 93, 95 to 122; and not Lot 636, the respondents’ lot. [16] However, the survey plan for Lot 636 shows that the appellants’ said property is located within the respondents’ Lot 636, and not Lot 637 – see page 178 of the record of appeal. How that has come to pass, whether there was some subdivision of the said land or any other as alleged by the appellants, is not something that can be resolved by affidavit evidence, as deployed under Order 89. A full trial would appear to be highly likely at this rate. [17] What is even more disquieting is the failure of the respondents to disclose their close family relationship with the sellers of the shophouse to the appellants under the SPA. The 1st respondent is actually the son-in-law of Chew Ah Soon @ Chew Nee Siew while the 2nd respondent is the adopted daughter of Kuo Jee Bouh @ Khoo Yoke Moy. The appellants claimed that knowledge of the SPA may then be properly imputed on the respondents; that vis-à-vis them, the respondents were aware that by virtue of the SPA, the appellants were not squatters simpliciter but were licensed or authorized by Chew Ah Soon @ Chew Nee Siew and Kuo Jee Bouh @ Khoo Yoke Moy to enter and remain on the said property. These two persons had actually sold the said property to the 2nd appellant. 9 [18] The appellants further relied on clause 6 of the SPA to suggest that the respondents are obliged to recognize the interest of the appellants. Clause 6 stipulates as follows:

6. In this Agreement the terms, ‘Vendors’ and ‘Purchaser’ shall be deemed to and include their respective nominees, heirs, representatives, assigns and successors-in-title. [19] We find merit in the arguments of the appellants and we agree that there are real issues or questions that require trial and that the present summary procedure under O 89 is grossly unsuitable on the present facts. As with other summary procedures, the orders sought can only be properly granted where it is plain and obvious that there are no triable issues. That is not the case here. [20] With such conclusions, we unanimously found the learned Judge to be plainly erroneous in her determination of the respondents’ application. The appeal is therefore allowed and we set aside the order of the High Court with costs. Dated: 7th December 2018 (MARY LIM THIAM SUAN) Judge Court of Appeal Malaysia 10 Counsel/Solicitors For the appellants: Lee Hong Yap Messrs HY Lee & Co 54 (1st Floor), Jalan Raja Haroun 43000 Kajang Selangor Darul Ehsan For the respondents: Teh Lay Kheng (Leon Tai Lijie with her) Messrs Desmond Chan & Jeff Law No. 27-02, Level 27 Centro, Jalan No. 8 Jalan Batu Tiga Lama 41300 Klang Selangor Darul Ehsan