Nodedua Sdn. Bhd. v Rubayah binti Atan (No. K/P: 630420-71-5018) (JA-24NCVC-465-07/2016)

This was an Originating Summons filed under Order 89 Rule 1 of the Rules of Court 2012 (RoC) by the plaintiff seeking summary possession of a piece of land known as HS(D) 454097, PTD 72272, Mukim Pulai, Daerah Johor Bahru, Negeri Johor (hereinafter referred to as ‘the said Land’) against the defendants.

On 21.12.2016, this Court allowed the application. The defendants were not satisfied with the decision and have filed an appeal to the Court of Appeal. This judgment serves as the reasons for the decision of this Court.

In 2009, the plaintiff acquired the said Land from Iskandar Waterfront Development Sdn Bhd. Prior to that, the said Land was a State Land. It was first alienated to one company by the name of Kumpulan Prasaraya Rakyat Johor Sdn Bhd on 5.10.2000. A year later, the said Land was transferred to Danga Bay Sdn Bhd. Subsequently, Danga Bay Sdn Bhd transferred the said Land to Iskandar Waterfront Development Sdn Bhd on 11.2.2008. More than a year later, the said Land was transferred to the plaintiff.

On 15.9.2014, the plaintiff through their solicitors served the occupiers a Notice to vacate and deliver vacant possession of the said Land. The occupiers did not comply with the Notice. On 26.1.2016, the plaintiff through their solicitors served a second Notice to vacate and Page 3 of 8 deliver vacant possession to the occupiers. Since then, some of the occupiers had vacated and left the said Land.

At present, the defendants are the only occupiers who did not vacate and leave the said Land. The defendants wanted the plaintiff to pay compensation to them so that they can relocate to other places. The defendants through their solicitors have vigorously opposed the plaintiff’s application, in particularly the mode adopted by the plaintiff to seek vacant possession of the said Land.

The defendants contended that before the said Land was alienated to Kumpulan Prasaraya Rakyat Johor Sdn Bhd on 5.10.2000, the defendants had entered and occupied the said Land. The defendants averred that the State government and Kumpulan Prasaraya Rakyat Johor Sdn Bhd, which is a state-owned company, had given an implied consent to the defendants to enter and remain on the said Land. The State government and state-owned company did not evict them from the Land at the material time when the State government and state-owned company were the owners. The defendants argued that since that time an implied consent was given to them, therefore, the defendants have entered and remained on the said Land with the consent by the predecessors in title until the present time. On this footing, it was argued that the mode adopted by the plaintiff via Order 89 RoC was inappropriate.

Order 89 Rule 1 of the RoC states as follows:

Proceedings to be brought by originating summons (O. 89 r. 1) Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order. [8] The courts have decided in previous cases that the burden is on the defendants to adduce evidence, not make mere allegation, that any of the predecessors in title had given consent, permission or agreement to the defendants to enter and continue occupation of the land concerned (see Court of Appeal decision Lee Beng Lai Ords v Tetuan Tokoyaki Property Sdn Bhd [2002] 3 MLJ 287). [9] In the present case, the defendants could not adduce any proof that there was consent, permission or agreement granted by the predecessors in title to them to enter and remain on the said Land. The defendants averred that only an implied consent, not explicit consent, was granted to them by the predecessors in title. Page 5 of 8 [10] The defendants averred that one of the defendant’s relative (deceased) had applied to the State government for a temporary occupied licence (TOL). However, there was no documentary evidence that could support an approval was granted by the State government which could prove a TOL in relation to the said Land was once granted. [11] The defendants contended they had proof that implied consent was obtained. They relied on the fact that the sign for the settlement was put up - ‘Kampung Bakar Batu’, a TNB sub-station was erected for the supply of electricity and connection of water supply from Syarikat Air Johor was available. [12] The supply of electricity, water and even telephone-poles and phone-lines do not indicate the defendants have right to remain and occupy on the said Land. This has been decided by the Court of Appeal in Chong Wooi Leong & Ors v Lebbey Sdn Bhd [1998] 1 MLRA 423 (see also Tetuan Tokoyaki Property Sdn Bhd v Sam Kok Sang & Tham Sow Seng & Ors [2001] 1 MLJ 585; Shak Keaw v NCC Development & Credit Sdn Bhd [2012] MLJU 406). [13] The law requires the defendants to show more than the supply of public amenities to the said Land. The Federal Court in Shaheen bte Abu Bakar v Perbadanan Kemajuan Negeri Selangor [1999] 1 CLJ 74 held that there must be evidence to show that local authorities had encouraged settlers to develop the land, such as to open up the land and improve the land for their livelihood. In such circumstances, it could argue that there was an implicit consent granted by the State authority. Page 6 of 8 [14] The defendants averred that some defendants were granted fishing vessel licences from the Johor Fisheries Department to support their livelihood and to encourage them to settle at the said Land. This Court could not accept the argument because the fishing vessel licences obtained by the defendants were in relation to their livelihood at sea. The licence had nothing to do with opening and improving the said Land. [15] The averment that that the defendants were once granted implied consent from the predecessor in title, Kumpulan Prasarana Rakyat Johor Sdn Bhd, the State-owned company, was not correct. The State-owned company has refuted the defendants’ claim in writing. The plaintiff adduced a letter from the State-owned company stating the same (see exhibit TTK-13, Affidavit Tan Teow Keat affirmed on 28.11.2016 – encl. 19). [16] The defendants also averred that the State government was fully aware of their existence on the said Land, and that the Private Secretary to the DYMM Sultan of Johor had written to the State government to look into their plea for time to vacate the said Land (see exhibit ABA-3, Defendants’ Affidavit-in-Reply affirmed on 12.10.2016 – encl. 13). These letters do not give rise to any proof of acquiescence or consent of the State government that the defendants were allowed to remain on and occupy the said Land. On the contrary, these letters supported the fact that the defendants were supposed to vacate the said Land, but they needed more time to do so. [17] The knowledge of the State authority of the presence of the defendants on the said Land could not be equated to implicit consent by Page 7 of 8 the State authority for the defendants to enter and remain on the said Land. Likewise, the knowledge of the predecessors in title of the presence of the defendants on the said Land also could not be equated to implicit consent by the predecessor in title for the defendants to enter and remain on the said Land. [18] With regard to the other predecessors in title, Danga Bay Sdn Bhd and Iskandar Waterfront Developmenty Sdn Bhd, they had not granted their consents for the defendants to occupy the said Land. Although they did not take actions to evict the defendants; their inaction does not mean implicit consent has been granted to the defendants to occupy the said Land. The defendants could not prove any of the predecessors in title had given their consent for the defendants to remain and occupy the said Land. [19] Lastly, the defendants had also averred that they were recognised as settlers on the said Land because their Identity Cards issued by the relevant authorities stated their residential addresses as located on the said Land. This Court does not accept this as proof of rights to occupy the said Land. Long standing occupation is not sufficient for the defendants to refute the plaintiffs’ claim for summary vacant possession. Conclusion [20] Based on the above reasoning, this Court had rejected all of the defendants’ arguments opposing the plaintiff’s originating summons filed under Order 89 Rule 1 of RoC. This Court was satisfied that the plaintiff’s application ought to be allowed. Hence, this Court allowed the Page 8 of 8 plaintiff’s application and ordered costs of RM10,000.00 to be paid to the plaintiff by the defendants jointly. -Signed- ……………………………………………. (CHOO KAH SING) Judicial Commissioner High Court, Johor Bahru Plaintiff’s Counsel : Rachel Chacko Tetuan Tea, Kelvin Kang & Co. Defendants’ Counsel : Hassan Karim Tetuan Hassan Karim & Co.