Tan Jun Siang v Kamaludin Bin Said (KA-24NCvC-556-11/2024)

AND KAMALUDIN BIN SAID

CHE ANI BIN AJI (NRIC : 581112-02-5383) …DEFENDANTS GROUND OF JUDGMENT (Enc. 1) Introduction 1. The Plaintiff through this Originating Summons dated 14.11.2024 [Enclosure 1] prayed for the following :

A declaration that the tenancy agreement dated 01.12.2022 in respect of a premises located at No. 41, Jalan Pantai Cenang, Kampung Tanjung Mali, Kedawang, 07000 Langkawi, Kedah ('the Premises'), for the period from 01.12.2022 until 30.11.2025 and from 01.12.2025 until 30.11.2028, entered into 15/12/2025 18:20:26 KA-24NCvC-556-11/2024 Kand. 21 S/N i9xXrgFiUqu5axQUDsLmw between the Plaintiff and the Defendants ('the Tenancy Agreement'), is a legally valid agreement.

(ii) The Defendants, whether by themselves and/or through their agents, employees, or representatives, are prohibited from disturbing the Plaintiff in the enjoyment of possession of the Premise until the expiry of the Tenancy Agreement.

(iii) In the alternative and/or in lieu thereof, the Defendants shall pay damages to the Plaintiff.

The application is supported by the Affidavit in Support in Encl. 2. The Defendants in opposition filed an Affidavit in Reply in Encl. which the Plaintiff responded in Encl. 6 through a short further affidavit. Written submissions were subsequently filed by both parties in Encl. 7 [Plaintiff’s Written Submission] and Encl. [Defendants’ Written Submission.

This is a plain case. The Plaintiff is a tenant. The 1st Defendant is the beneficial owner of the Premises. The 2nd Defendant is described as the partner of the 1st Defendant. In the Affidavit, Encl. 4, he described himself as the owner of the building, having expended capital to construct and maintain the Premises. For the avoidance of doubt, the Premises is identified as a shop lot situated at No. 41, Jalan Pantai Cenang, Kampung Tanjung Mali, Kedawang, 07000 Langkawi, Kedah. S/N i9xXrgFiUqu5axQUDsLmw

The Plaintiff and the Defendants entered into the Tenancy Agreement. The opening words of the Tenancy Agreement state that the tenancy was for a total period of six (6) years, commencing on 01.12.2022 and expiring on 30.11.2028. I shall come to this at the later part of this judgement as this becomes the crucial part of this case. To continue with the narrative, the monthly rent was divided into two parts: (i) from 01.12.2022 to 30.11.2025: monthly rent of RM2,000.00, and (ii) from 01.12.2025 to 30.11.2028, carried an increased monthly rent of RM2,500.00.

In accordance with the Tenancy Agreement and it is not in dispute that the Plaintiff was given possession of the premises and thereafter undertook renovations which the Plaintiff contends that he incurred approximately a sum of RM110,000.00. The Premises is used as a restaurant under the name and style of Islandish Family Seafood Restaurant.

The next turn of event occurred on 06.05.2024, when the Defendants issued a letter to the Plaintiff purporting to terminate the Tenancy Agreement. By the same letter, the Defendants required the Plaintiff to deliver vacant possession of the Premises on or before 31.08.2024.

The Defendants contend that they are entitled to give a notice of termination of the Tenancy Agreement by giving a period of one (1) months’ notice.

At this juncture, it is apposite to observe that the said letter, which purports to be a notice of termination, contains no reference to the reasons for such termination. It likewise makes no mention of any S/N i9xXrgFiUqu5axQUDsLmw renovation costs. It is further of significance to note that the Defendants, in that notice, did not allege any breach of the Tenancy Agreement on the part of the Plaintiff.

The Plaintiff subsequently engaged solicitors. By a letter dated 02.06.2024, the Plaintiff’s solicitors wrote to the Defendants asserting that the Plaintiff was not in breach of any terms of the Tenancy Agreement. The Defendants thereafter also appointed a solicitor. By a letter dated 08.10.2024, the Defendant’s solicitors while making no reference to any breach of the tenancy terms raised for the first time the contention that the Tenancy Agreement contravenes the provisions of the Malay Reservation Enactment Kedah 1930 (Revised 2019) - Enactment 29 and was therefore illegal and void.

The Issues From the factual matrix set out above, it seems to me that the issues in focus which require determination are as follows:

whether the Defendants are entitled to terminate the Tenancy Agreement by giving one (1) month notice and in the absence of any breach by the Plaintiff:

whether the Tenancy Agreement is contravenes the provisions of the Malay Reservation Enactment Kedah 1930 (Revised 2019) Enactment 29 and is thus void and unenforceable. S/N i9xXrgFiUqu5axQUDsLmw

Analysis It is trite that a notice of termination need not specify reasons – see the Federal Court’s decision in SPM Membrane Switch Sdn Bhd v. Kerajaan Negeri Selangor [2016] 1 CLJ 177 FC. Thus, the absence of reasons in the notice issued by the Defendants will not stand in their way. However, as a matter of interpretation, it is necessary to examine closely and scrutinise the Tenancy Agreement to determine whether the Defendants are entitled to terminate the Agreement in the first place. This approach is commonly known as the “four corners of the agreement” underpins the necessity to first looking at the terms of the agreement to define the rights and obligations of the parties. In SPM Membrane the Federal Court had occasion to state as follows: - [35] The principles of Lord Hoffmann were summarised in Berjaya Times Square Sdn Bhd v. M-Concept Sdn Bhd [2010] 1 CLJ 269; [2010] 1 MLJ 597 at p. 296 CLJ; [42] 620G (MLJ). Gopal Sri Ram FCJ, who delivered the leading judgment of the court stated: “Here it is important to bear in mind that a contract is to be interpreted in accordance with the following guidelines. First, a court interpreting a private contract is not confined to the four corners of the document. It is entitled to look at the factual matrix which forms the background to the transaction. Second, the factual matrix which forms the background to the transaction includes all material that S/N i9xXrgFiUqu5axQUDsLmw was reasonably available to the parties. Third, the interpreting court must disregard any part of the background that is declaratory of subjective intent only. Lastly, the court should adopt an objective approach when interpreting a private contract. (emphasis added).” [36] This objective approach to interpretation is the "ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation which they were at the time of the contract." (K. Lewison, The Interpretation of Contracts (5th edn, 2011), Sweet and Maxwell, at 1.03). [37] The purpose of interpretation, as Lord Steryn observed in Equitable Life Assurance Society v. Hyman [2002] 1 AC 408, "is to assign to the language of the text the most appropriate meaning which the words can legitimately bear.

The Federal Court in coming to that decision has also considered the earlier decision in Perkayuan OKS No. 2 Sdn Bhd v. Kelantan State Economic Development Corp [1995] 1 CLJ 761 where at page 766 the following passages are relevant: “The appellant/plaintiff took up the subject of notice which it contended as being inadequate on the ground that the particulars set out therein were unspecific, ambiguous and vague. The allegations must be sufficiently particularised so as to enable a party upon whom the notice is served whether to S/N i9xXrgFiUqu5axQUDsLmw admit or to deny any or all of them. Such a vague notice is no notice in law.” ……. “To further illustrate the legal position against insufficient notice, learned Counsel for the appellant/plaintiff cited the English case of Gregory v. Serle [1898] 1 Ch. 652 where it was adjudged that a notice served by a lessor on his lessee merely informing the lessee that he "has not kept the said premises well sufficiently repaired and the party and other walls thereof" was not sufficient as it did not direct the attention of the lessee to the particular breaches complained of so as to give him an opportunity of remedying them before an action was brought against him. Also it was submitted that by merely parrotting the language of the contract, and in the present case it was clause 18 of the main agreement without giving any facts or other particulars, it was therefore insufficient and inadequate. It was cited to us a text book authority from "Principle of Administrative Law" by M.P. Jain and S.N. Jain, 4th Ed. “A notice must be adequate. A notice in barebones language of the statute I.e. which merely repeats the statutory language without giving any facts and other particulars, is insufficient and adequate. Further, the grounds given in the notice on which the action is proposed to be taken should be clear, specific and unambiguous. If these conditions are not satisfied the person cannot be said to have a reasonable opportunity of being heard. Such a notice is no notice.” S/N i9xXrgFiUqu5axQUDsLmw We agree that the “various occasions” on which the appellant/plaintiff was alleged to have assigned and/or transferred its rights to third parties lacked details. The identity of the third parties to whom the rights were allegedly assigned and/or transferred was not particularised.”

With those principles in mind, it is necessary to refer to the documents. In the notice dated 06.05.2024 the Defendants stated as follows:

As stated above, the Defendants notice was met with a challenge by the Defendant’s solicitor’s letter dated 02.06.2024 maintaining that the Tenancy Agreement contains no provision allowing for the Defendants to terminate the Agreement.

Now, as regards to termination clauses 4 and 5 are relevant. For convenience they are set out below: S/N i9xXrgFiUqu5axQUDsLmw

It was contended by the Plaintiff that the notice of termination issued by the Defendants is invalid as such notice is devoid of reasons and secondly that the Plaintiff was not in breach of the Tenancy Agreement. In support the Plaintiff cited the case of Perkayuan OKS above. Counsel for the Plaintiff further submits that clause 4 is predicated upon a breach of the Tenancy Agreement by the tenant (the Plaintiff), whereas clause 5 contemplates termination in the absence of any breach, in which event the landlord is required to bear all renovation costs payable to the Tenant.

The Defendants in their written submissions made no submissions on the issue of termination but relied instead on the issue of the validity of the Tenancy Agreement vis-à-vis the Malay Reservation Enactment Kedah 1930 (Revised 2019) Enactment 29.

I have carefully considered the Tenancy Agreement in its entirety and, in my judgment, it is clear that at all material times the Plaintiff was not in breach thereof. I further find that the Agreement contains no provision permitting the Defendants to effect termination by the mere giving of one (1) month’s notice. In my judgment, Clause 5 cannot be S/N i9xXrgFiUqu5axQUDsLmw construed as conferring upon the Defendants any right of unilateral termination by notice. I am also of the considered view that there is no material before me upon which I could imply the existence of any term allowing for termination by notice.

I further find that, following the decision in SPM Membrane and upon consideration of the factual matrix forming the background to the transaction, namely the Tenancy Agreement, there is no evidence to suggest that, in the absence of a clear breach on the part of the Plaintiff, the Tenancy Agreement may be terminated.

At the risk of repetition, the notice of termination does not, on its face, disclose any reason relied upon by the Defendants as a basis to terminate the Tenancy Agreement and additionally to compensate the Plaintiff as per clause 5.

In the premises I sustained the submissions of the Plaintiff that the notice is bad in law and is thus of no effect.

For completeness in my judgement as stated above, I hold that the Defendant is not empowered by the Agreement to issue a unilateral notice of termination. For this reason, the purported notice of termination is bad in law.

I now turn to the second issue, namely whether the Tenancy Agreement is void. It is instructive to refer to the relevant provisions upon which the Defendants rely in support of their submissions. Sections 9 and 10 of the Malay Reservations Enactment, Kedah 1930 (Revised 2019), Enactment No. 29, provide as follows: S/N i9xXrgFiUqu5axQUDsLmw 11 9. Restriction on sale and lease of Malay reservation

No State land included in a malay reservation shall be sold, leased or otherwise disposed of to any person who is not either :

a Malay or

A Siamese certified by the Director in writing to be a Siamese agriculturist permanently resident in the State.

The provisions of subsection (1) shall not affect the rights of any holder of a surat akuan where such rights were acquired prior to the inclusion of the land comprised in such surat akuan in a malay reservation.

Lease of Malay reservation Nothing in Section 6 contained shall be deemed to prevent the leasing of Reservation land by a Malay to a person other than a Malay or by a Siamese to a person other than a Malay or a Siamese for a term not exceeding three years; provided that any document executed prior to or during the continuance of such term which purports to extend the term, whether by renewal of the lease or otherwise, beyond three years shall be void and provided further that no bendang land included in a Malay Reservation, which is held by a Malay or Siamese under any document of title and whereof the area does not exceed ten relongs shall be leased to any person other than a Malay or either a Malay or a Siameseas the case may be without the written consent of the Land Officer of the district in which such land is situate. (emphasis added) S/N i9xXrgFiUqu5axQUDsLmw

It is to be noted that the provisions of Section 9 of the said Enactment were considered in OG Global Venture Sdn Bhd v. Kedah Exotic Fruits Sdn Bhd & Ors [2019] 1 LNS 1962. In that case, the facts concerned an agreement involving a lease of Malay Reserve Land for a period of fifteen (15) years. Abu Bakar Katar J, in arriving at his decision, referred to the Court of Appeal’s judgment in Sunset Beach Resort Sdn Bhd v. Zakaria Ibrahim [2012] 1 LNS 1457, wherein at page 10 the Court stated as follows: “[25] Mahkamah ini berpendapat Perjanjian Pajakan tersebut antara plaintif dan D2 bercanggah dengan peruntukan s. Enakmen tersebut yang melarang sebarang pajakan melebihi 3 tahun. Bagi kemudahan rujukan diperturunkan peruntukan s. 9 Enakmen tersebut yang berbunyi seperti berikut: “Nothing in Section 6 contained shall be deemed to prevent the leasing of Reservation land by a Malay to a person other than a Malay or by a Siamese to a person other than a Malay or a Siamese for a term not exceeding three years; provided that any document executed prior to or during the continuance of such term which purports to extend the term, whether by renewal of the lease or otherwise, beyond three years shall be void …” [26] Mahkamah ini merujuk kes Sunset Beach Resort Sdn Bhd v. Zakaria Ibrahim [2012] 1 LNS 1457 di mana YA Aziah Ali HMR [pada ketika itu] ada merungkai isu yang sama. Dalam penghakimannya beliau memutuskan: S/N i9xXrgFiUqu5axQUDsLmw [25] We agree with the learned judge that the terms of the tenancy agreement which was for a period of five years contravened the clear and unambiguous words of s. 9 of the Enactment. We found that the transaction between the appellant and the respondents was a transaction that is prohibited by law. For the reasons stated above we found that the learned judge had not erred in granting the declaratory order that the tenancy agreement was void. The appeal was therefore dismissed and the decision of the High Court was affirmed....

Section 9 of the Malay Reservations Enactment Kedah Enactment No. 63 (Previously Enactment 6/1349) clearly restricts two types of transactions: either sale or lease to other than a Malay or a Siamese.

Section 10 in turn provides that nothing in Section 6 contained shall be deemed to prevent the leasing of Reservation land by a Malay to a person other than a Malay or by a Siamese to a person other than a Malay or a Siamese for a term not exceeding three years.

The restriction against the creation of a lease in favour of persons other than a Malay or a Siamese was affirmed by the High Court in OG Global Venture Sdn Bhd and by the Court of Appeal in Sunset Beach Resort Sdn Bhd.

In OG Global Venture, it is significant to note that the lease agreement between the parties was for a period of 15 years, with a further option of a renewal for another period of 15 years.

It is however pertinent to note that the title to the Agreement had use the word “Penyewaan” and throughout the Agreement the word S/N i9xXrgFiUqu5axQUDsLmw “penyewa” was used. Properly translated this conveys that the transaction is one of a tenancy as opposed to a lease.

The Defendants, in their submissions, referred to the opening words of the Agreement to buttress their contention that, in effect, the transaction constitutes a tenancy for a period of six (6) years. It is to be recalled that the opening words read as follows:

The Plaintiff however submitted that, upon a proper reading the transaction is a tenancy for a total duration of six (6) years but broken into two phases namely the first period of three (3) years plus a further extension of three (3) years. To fortify his submission the Plaintiff relied on recital (a) (i) and (ii) of the Agreement – see page 13 of Encl 2.

It is of importance to state that section 10 speaks of section 6 of the Enactment 29 and it is necessary then to refer to it which reads as follows:

Save as hereinafter provided in this Enactment, where any Reservation land is held under a document of title by a Malay, no right or interest therein shall vest, whether by transfer, sale in execution of a decree, sale at the instance S/N i9xXrgFiUqu5axQUDsLmw of a chargee or otherwise, in any person who is not a Malay and where any Reservation land is held under a document of title by a Siamese no right or interest therein shall vest, whether by transfer, sale in execution of a decree, sale at the instance of a chargee or otherwise, in any person who is not either a Malay or a Siamese.

Any document or agreement purporting to vest in any person any right or interest contrary to the provisions of sub-section (1) shall be void.

It is patently clear that the effect of section 6 is to prohibit the vesting of a right over Reservation land (as defined in the Enactment) to a person other than a Malay or a Siamese. In this connection the decision of the Federal Court in Affin Bank Bhd v. Jamaludin Jaafar; The Association of Bank in Malaysia and Anor (Interveners) [2019] 7 CLJ 541 is clear on this point. Section 10 however creates an exception in that a transaction for a period of three (3) years could be created in favour of any other person other than a Malay or a Siamese.

In the present case, I agree with the submissions of the Plaintiff that the dealing between the Plaintiff and the Defendants is one of a tenancy for a period of three (3) years which is to be followed by another period of three (3) years. It is not a dealing in the nature of a lease for a period of six (6) years as sought to be canvassed by the Defendants.

In short, the prohibition under section 9 is not engaged. Accordingly, I have no hesitation in rejecting the submissions by the Defendants S/N i9xXrgFiUqu5axQUDsLmw that the Tenancy Agreement is void. On the contrary, in my judgement the Agreement is valid.

The cases of OG Global Venture and Sunset Beach Resort are distinguishable from the present case. Here, the Tenancy agreement provides for an initial term of three (3) years, with a further term of three (3) years. The provisions of the Enactment are clear and unequivocal as to the permissible duration of a tenancy.

The Defendants in their submissions have also relied on section 22 of the Contracts Act 1950 on a mistake of law and argued that the section has no application since it is obvious that the Tenancy Agreement is void as it contravenes section 9 and 10 of the Malay Reservation Enactment Kedah 1930 (Revised 2019) Enactment 29.

I do not find that there is merit in this submission as I have found that the Tenancy Agreement does not offend the Enactment and it is thus unnecessary for me to even refer to section 22 of the Contracts Act 1950.

39.

In the upshot the Plaintiff’s application is allowed.

Accordingly, it is hereby ordered that: S/N i9xXrgFiUqu5axQUDsLmw

A declaration that the tenancy agreement dated 01.12.2022 in respect of the premises located at No. 41, Jalan Pantai Cenang, Kampung Tanjung Mali, Kedawang, 07000 Langkawi, Kedah (hereinafter referred to as 'the Said Premises'), for the period from 01.12.2022 until 30.11.2025 and from 01.12.2025 until 30.11.2028, entered into between the Plaintiff and the Defendants (hereinafter referred to as 'the Tenancy Agreement'), is a legally valid agreement.

(ii) The Defendants, whether by themselves and/or through their agents, employees, or representatives, are prohibited from disturbing the Plaintiff in enjoying vacant possession of the said premises until the expiry of the tenancy agreement.

(iii) Costs of RM2,000.00 to be paid by the Defendants to the Plaintiff subject to allocator. Dated : 28 September 2025 (Mohd Aimi Zaini Bin Mohd Azhar) Judicial Commissioner High Court Malaya Alor Setar Kedah Darul Aman S/N i9xXrgFiUqu5axQUDsLmw Solicitors for the Plaintiff : V.Rajadevan Messrs. Rajadevan & Associates Solicitors for the Defendants : Jannu Babjan Chamber of Jannu Babjan S/N i9xXrgFiUqu5axQUDsLmw