Siti Maryam Binti Busri v Siti Aisah Binti Lani (BA-22NCvC-457-11/2020)

Facts admitted need not be proved

No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which before the hearing they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

This section has no application to criminal proceedings. [17] Accordingly, because the facts have been agreed by the parties in the Agreed Facts filed before the trial, it is not necessary for this Court to rely on DW4’s statutory declarations to determine whether or not, the defendant had received the RM12,000.00 and the RM14,490.00 from the plaintiff. [18] Whether or not the defendant received both sums from the plaintiff is also not an issue to be determined by this Court since parties have agreed it. Instead, the issue is what the nature and purpose of the said payments by the plaintiff to the defendant were. Siti Maryam Busri v Siti Aisah Lani 6 [19] The issues for determination are:

what were the nature and purpose of the payments of the sums of RM12,000.00 and RM14,490.00 by the plaintiff to the defendant?

(ii) is the plaintiff the beneficial owner of the Alienated Land?

(iii) is the plaintiff’s claim against the defendant time-barred? and

(iv) whether the agreement between the plaintiff and the defendant is void for illegality of contract? Issue (i): What were the nature of the payments of the sums of RM12,000.00 and RM14,490.00 by the plaintiff to the defendant? [20] The plaintiff’s case is that she had paid the sum of RM12,000.00 to the defendant to “ganti usaha” the TOL Land, and that the understanding reached between her and the defendant was that when the State Authority approves the alienation of the TOL Land, she will pay the premium and other sums due to the State Authority in respect of the TOL Land and the defendant will transfer the Alienated Land to her upon the issuance of the title for the land. As stated above, it is an agreed fact that the plaintiff had paid the defendant the sum of RM12,000 and the sum of RM14,490.00 for the premium for the issuance of the issue document of title for the land. [21] The defendant agreed that she had permitted the plaintiff to build a house on the TOL Land. She also admitted that she had received the sums of RM12,000.00 and RM14,490.00 from the plaintiff and used the RM14,490.00 to pay the premium. However, the defendant claims that she had only permitted the plaintiff to build a small house and not a big house and that the RM12,000.00 was a saguhati (gift) from the plaintiff to her. As Siti Maryam Busri v Siti Aisah Lani 7 for the RM14,490.00, which she admitted having received from the plaintiff, the defendant pleads in her defence that that sum was an assistance (bantuan) offered and given voluntarily by the plaintiff to the defendant as a “thank you” for allowing the plaintiff to build a small house on the TOL Land and to stay on the TOL Land without being charged any payment or monthly rental. However, in her witness statement, the defendant said the RM14,490.00 was an advance (pendahuluan). [22] There is a touch of the unbelievable in the defendant’s claim that the RM12,000.00 was a gift from the plaintiff to the defendant for allowing the plaintiff to build a house on the TOL land and to occupy the said land with her family. The fee for the TOL licence is RM200.00 per year. Also, Encik Zaidi bin Awang (“DW-3”), a tenant who had rented a wooden house on the TOL Land from the defendant from 1993 to January 1995, testified that the rental per month was RM150.00. He said he paid the rental monthly in cash, and that he delivered the cash to the defendant personally. [23] The sum of RM12,000.00 is equivalent to 60 years of the TOL licence fee and 80 months of rental. It does not make any financial sense for the plaintiff to pay the defendant 80 months (or 6 years and 8 months) of rental in advance as a “gift” for being allowed to build a small house and live on the land. This is especially true since, according to the defendant she only allowed the plaintiff to stay on the land for a short while only (“untuk sementara waktu sahaja” — see the defendant’s answer QA22 in her witness statement). [24] As for the sum of RM14,490.00 the defendant received from the plaintiff for the payment of the premium — which version of the defendant’s claim is true? Is it her pleading that the plaintiff had offered Siti Maryam Busri v Siti Aisah Lani 8 and given her the sum of RM14,490.00 as an assistance (bantuan) to assist the defendant with the payment of the premium for the alienation of the TOL Land as a thank you to the defendant for allowing her to build a house and stay on the land? Or is it the defendant’s statement in her witness statement that the RM14,490.00 was an advance (pendahuluan) from the plaintiff? [25] The sum of RM14,490.00 is a relatively large sum of money. Together with the RM12,000.00 that the plaintiff had given the defendant in 1995, the fees for the survey and measurement of boundary (RM270.00) and the quit rent (RM91.00) which had to be paid together with the premium to the Selangor State Authority for the issuance of the title, the total sum that was paid by the plaintiff to the defendant in relation to the TOL Land was RM26,851.00. [26] It beggar belief that the plaintiff would have paid the defendant the total sum of RM26,851.00 as a thank you for being allowed to build a house and stay on the TOL Land. Also, if indeed the sum of RM14,490.00 received by the defendant from the plaintiff in 2002 was an “advance”, why has the defendant not repaid the sum to the plaintiff? [27] The defendant was a defensive and evasive witness. From her demeanour and conduct in during the trial, I found her not to have told the truth as to the real reason she had received the RM12,000.00 and the RM14,490.00 from the plaintiff in respect of the TOL Land. When asked during cross-examination if the RM14,490.00 was indeed an advance, why had she not paid the monies back to the plaintiff, the defendant said that because she and the plaintiff had a falling out over the land and were Siti Maryam Busri v Siti Aisah Lani 9 no longer talking to each other, she was not able to pay the plaintiff the RM14,490.00. [28] To my mind the defendant’s answer to why she still has not repaid the plaintiff the RM14,490.00, if indeed the sum was an advance, is incredulous. Even if she was no longer talking to the plaintiff, she could have transferred the payment directly to the plaintiff’s bank account or paid the monies to her through cash, cheque or banker’s draft — she did not need to talk to the plaintiff to pay back the “advance”. [29] Alternatively, if the RM14,490.00 was indeed an “assistance” from the plaintiff to the defendant for payment of the land alienation premium, it does not make any financial sense for a tenant/occupier of a TOL Land to give the TOL licence holder the whole sum of the premium payable together with the survey fees and quit rent for the issuance of the title following the alienation of the land. What was it in for the plaintiff to pay such sums? It is highly improbable that the plaintiff would have given the defendant such a large sum of money — more than 8 years of rental at the rate of RM150 per month. It surely cannot be out of the goodness of her heart. In my view, the only plausible explanation is that there was an agreement between the plaintiff and the defendant to gantiusaha the TOL Land, and that the defendant would transfer the land to her upon its alienation. This hypothesis is supported by the fact that the plaintiff had continued to stay on the land since 1995 without any hindrance from the plaintiff. And by the fact that the plaintiff has paid the quit rent since its alienation to date. Siti Maryam Busri v Siti Aisah Lani 10 [30] It was telling that under cross-examination, the defendant said she would sell the land to the plaintiff but at the current market value and not for the RM12,000.00 that she had paid the defendant in 1995. [31] Accordingly, based on these facts and the testimonies of the witnesses, I find that the plaintiff has proven on a balance of probabilities that the nature and purpose of the sum of RM12,000.00 and the RM14,490.00 that she had paid to the defendant was pursuant to an agreement between reached between them that the plaintiff gantiusaha the TOL land and that the defendant would transfer the land to the plaintiff when it is alienated by the State Authority. Issue (ii): Is the plaintiff’s claim against the defendant time-barred? [32] Learned counsel for the defendant submits that the plaintiff’s claim against the defendant is time-barred because the plaintiff had paid the sum of RM12,000.00 to the defendant in 1995 and she only filed this suit against the defendant in 2020. She cites section 9 of the Limitation Act 1953 (Act 254), which states:

Limitations of actions to recover land

No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims, to that person.

Nothing in this section or in subsection 11(2) of this Act shall be deemed to affect the Government Proceedings Act 1956 [Act 359], or the National Land Code (Penang and Malacca Titles) Act 1963 [Act 518], or to apply-

to the Ruler of any State, in respect of State land or land reserved for a public purpose situate in such State; or

to any person registered under or by virtue of the National Land Code 1965 [Act 56 of 1965], or the National Land Code (Penang and Malacca Titles) Act 1963, as the proprietor of the land sought to be recovered, or Siti Maryam Busri v Siti Aisah Lani 11 to any person claiming through a person so registered, except to the extent that such Code or Act so provides or permits. [2] In Munah v Fatimah [1968] 1 MLJ 54, [1967] CLJU 108, the plaintiff had entered into an agreement with the defendant and her brother, who were beneficiaries of the estate of their late father, Hamat, to purchase a piece of padi land, which was registered in Hamat’s name. The plaintiff went into occupation of the said land and cultivated it with padi, and enjoyed possession and profit from the land without hindrance from the defendants for 19 years. She had also paid the annual quit rents for the land. She brought the action against the defendant, as administratrix of Hamat’s estate, for the land to be transferred and registered in her name after years of asking the beneficiaries to take out letters of administration in respect of Hamat’s estate so that they could transfer the land to her. [3] In dealing with the defendant’s contention that the plaintiff’s claim was statute barred, Raja Azlan Shah J (as HRH was then), citing his earlier judgment in Kersah La’uisn v. Sikin Menan [1966] 2 MLJ 20; [1964] CLJU 57, held that as from the time the plaintiff went into occupation of the land, she was the equitable owner of the land. Hence, time did not run against the plaintiff as it was not a species of laches which would prevail against the equitable title. [4] In Kersah, his lordship relied on the English case of Williams v. Greatrex [1957] 1 WLR 31, where Denning L.J.: … once the purchaser went into possession of the land, having the contractual right to be there, he not only had an equity to be there, but also the benefit of a contract to sell him these two plots. That was not only an equity: it was an equitable interest in the land. He was in a sense the equitable owner of the land. So long as he was in possession of the land, he does not lose his rights simply by not proceeding at once for specific performance. Siti Maryam Busri v Siti Aisah Lani 12 [5] The principle in Munah v Fatimah and Kersah that time did not run against the equitable owner of a land was adopted by the Federal Court in Othman & Anor v Mek [1972] 2 MLJ 158; [1972] CLJU 103 and in Tengku Mariah Binte Sultan Sulaiman v Halmah Binte Abdullah [1980] 2 MLJ 234; [1979] CLJU 114. [6] In Tengku Mariah, the respondent brought an action for an order that the appellant execute a transfer of the title of a piece of land which the respondent claimed had been sold to her. The appellant's defence was that the action was time-barred as it was commenced more than twelve years after the title was registered in the appellant's name. The Federal Court held (as reported in the headnotes of the MLJ law report):

as the facts showed that the respondent was in possession of the land and had built two or three houses on it, she was the equitable owner of the land and so long as she was in possession of the land she did not lose her rights simply by not proceeding at once for specific performance [7] Syed Othman FJ delivering the judgment of the Federal Court in Tengku Mariah said at pg. 235 of the MLJ law report: In our view the respondent's action is not affected by limitation by reason of her having been in possession of the land from the time of purchase, and the present case fits squarely with the principle laid down by Raja Azlan Shah J. (as he then was) in Munah v Fatimah [1968] 1 MLJ 54 55 ……….. [Emphasis added] [8] Similarly, in this instant suit, the plaintiff, relying on the agreement between her and the defendant, went into occupation of the land, built a house on the land and lived with her family in the house since 1995. She has been in possession of the land since 1995, and the issue document of title of the Alienated Land since the title was issued without any hindrance from the defendant. She also paid the premium for the Siti Maryam Busri v Siti Aisah Lani 13 alienation of the land and the annual quit rents for the Alienated Land since its alienation to date. [9] By reason of her continued occupation of the land since 1995, from the time it was a TOL Land until it was alienated by the State Authority, the plaintiff is the equitable owner of the Alienated Land. Accordingly, her action is not affected by limitation and is not statute barred: see Williams v Greatrex; Kersah La'uisn Sikin Menan and Munah v Fatimah, Othman & Anor v Mek and Tengku Mariah Binte Sultan Sulaiman v Halmah Binte Abdullah (supra). [10] Accordingly, I find that the plaintiff’s claim against the defendant is not statute-barred. Issue (iii): whether the agreement between the plaintiff and the defendant is void for illegality of contract? [11] Section 65 of the NLC empowers the State Authority to permit the temporary occupation under licence of State Land, mining land and reserved land. Section 68 of the NLC states that a temporary occupation licence except as otherwise prescribed, shall not be capable of assignment. Section 68 of the NLC states:

Except so far as it is otherwise prescribed, a temporary occupation licence shall not be capable of assignment; and every such licence shall, except as provided in section 416, terminate on the death of the person, or dissolution of the body, for the time being entitled to the benefit thereof. [12] Salleh Abas CJ (Malaya) (as he then was) in Paruvathy d/o Murugiah v Krishnan s/o Doraisamy [1983] 2 MLJ 121; [1983] CLJU 19, FC (“Paruvathy Murugiah”) explained the principle behind section 68 of the NLC as follows: Siti Maryam Busri v Siti Aisah Lani 14 It is obvious from this section that a TOL, being a licence only confers a personal right to the licence holder. This right comes to an end when the holder in the case of a natural person dies or in the case of a company or a firm or other bodies is dissolved. Being a personal right, the legal relationship thereby created is only between the licensor and the licensee. The licence is therefore non-transferable or incapable of assignment at the option of the licensee. It is not a right in rem which its holder can deal with as he or it pleases to the detriment of the issuing authority. Thus any assignment or arrangement purporting to transfer or assign the whole or any part of the licensed land will be of no effect and such assignment or arrangement will be illegal under section 24 of the Contracts Act (see Heng Cheng v Krishnan [1955] MLJ 103 and Murugesan v Krishnasamy & Anor [1958] MLJ 92.) [13] The respondent in Paruvathy Murugiah claimed that he had a right to stay on the land because he had built a house on the land and because the document (marked as “D8” during the trial) purported to partially transfer the appellant’s rights or interest in the land to the respondent. [14] In that case, the appeal at the Federal Court rested on the issue of whether the doctrine of equitable estoppel can be invoked against the holder of a temporary occupation licence. The Federal Court held that the principle of equitable estoppel applied against a TOL licence holder. However, it found that on the facts of the case, namely that the document (D8) was fraudulent and contravened section 68 of the NLC and the house built on the land by the respondent was built using the appellant’s money, the doctrine of equitable estoppel did not apply against the appellant. [15] Learned counsel for the defendant submits that the agreement between the plaintiff and the defendant for the gantiusaha of the TOL Land is invalid and void for illegality because there is no term “gantiusaha” for TOL lands under the NLC, and because the assignment of the TOL licence is prohibited under section 68 of the NLC. Siti Maryam Busri v Siti Aisah Lani 15 [16] I agree with learned counsel for the defendant that section 68 of the NLC prohibits the assignment of a TOL licence. However, I am puzzled by her submission that the agreement between the plaintiff and the defendant is void for illegality by reason of section 68 of the NLC. The plaintiff did not plead that the defendant had assigned the TOL licence to her. It is not the plaintiff’s case that there was an assignment of the TOL licence from the defendant to her. The plaintiff’s case is that there was an oral agreement between her and the defendant that she would “gantiusaha” the TOL Land in consideration of payment by the plaintiff to the defendant of the sum of RM12,000.00 and the premium for the alienation of the TOL Land, and that the defendant would transfer the Alienated Land to her when the TOL land is alienated by the State Authority. [17] What does “gantiusaha” mean? I agree with learned counsel for the defendant that the word “gantiusaha” is not defined in the NLC. However, I find it difficult to follow the logic of her argument that because the word “gantiusaha” is not defined in the NLC, the agreement between the plaintiff and the defendant for the plaintiff to “gantiusaha” the TOL Land, and when the land is alienated, for the defendant to transfer the Alienated Land to the plaintiff, is void under section 68 of the NLC. [18] To support learned counsel for the defendant’s argument that an agreement between the plaintiff and the defendant for the plaintiff to “gantiusaha” the TOL Land is void for illegality, the defendant must prove that an agreement to “gantiusaha” of the TOL Land means it is an agreement to assign the TOL licence by the defendant to the plaintiff. [19] However, learned counsel for the defendant did not submit that the word “gantiusaha” means the assignment of the TOL licence by the Siti Maryam Busri v Siti Aisah Lani 16 defendant to the plaintiff. Neither did the defendant plead or adduce any evidence during the trial that the term “gantiusaha” means “assignment of the TOL licence”. [20] More importantly, the defendant did not plead or adduce any evidence that she had assigned the TOL licence to the plaintiff. In fact, the defendant’s own case is that the defendant continues to hold the TOL licence for the land and that she had paid the fees for the renewal of the TOL licence every year until the land was alienated. [21] It follows, therefore, that since the defendant failed to prove that the agreement between the plaintiff and the defendant was for the assignment of the TOL licence by the defendant to the plaintiff, the agreement is not void for illegality. [22] For these reasons, I find that the agreement between the plaintiff and defendant does not breach section 68 of the NLC. Accordingly, the agreement is not void for illegality. Issue (iv): Is the plaintiff the beneficial owner of the Alienated Land? [23] Based on the principle of law in Williams v Greatrex; Kersah La'uisn Sikin Menan and Munah v Fatimah, Othman & Anor v Mek and Tengku Mariah Binte Sultan Sulaiman v Halmah Binte Abdullah (supra), by reason of the fact that the plaintiff had built the house on the TOL Land at her own cost and has continued to occupy the house and the land since 1995 without hindrance from the defendant, paid the premium for the issuance of document of title for the Alienated Land, paid the annual quit rent since the alienation of land to date, this Court finds that the plaintiff is the equitable owner of the Alienated Land. Siti Maryam Busri v Siti Aisah Lani 17

[24] Accordingly, for the reasons above, this Court gives judgment to the plaintiff. [25] It is declared that the plaintiff is the beneficial owner of the Alienated Land. [26] It is ordered that the Deputy Registrar of the High Court of Malaya at Shah Alam be empowered to execute the memorandum of transfer to transfer the ownership of the Alienated Land to the plaintiff. [27] It is ordered that the Pendaftar Hakmilik Daerah Petaling, Selangor, register the transfer of the Alienated Land to the plaintiff after payment of the requisite stamp duty and registration of transfer fees. [28] The defendant’s counterclaim is dismissed. [29] Costs of RM15,000.00 to be paid by the defendant to the plaintiff, subject to the allocatur fee. Dated: January 23, 2024 (FAIZAH JAMALUDIN) Judge High Court of Malaya at Shah Alam Siti Maryam Busri v Siti Aisah Lani 18 COUNSELS: For the Plaintiff: Idris bin Md Isa Messrs Idris & Partners 2(1F), Jalan BRP 7/2A, Bukir Rahman Putra, 47000 Sungai Buloh, Selangor For the Defendant: Maknawiah binti Muslim (Nor Shafizah Sahaat with her) Messrs Maknawiah Raziah & Partners No. 7, 1st Floor, Lorong Pengkalan Machang 1, Taman Pengkalan Machang, 13800, Sungai Dua, Butterworth, Pulau Pinang