Tey Boon Kiang v Ng Yan Siang @ Ng Siew Lian (JA-12B-3-01/2023)

As a brief background of facts, it was not disputed by both parties that a person by the name of Ramli bin Harun (“Ramli”) was a registered owner of an undivided ½ share (“Property”) in a land held under GM 911 (formerly known as EMR 625) Lot 1045 Mukim Serkat, Pontian, Johor (“Land”).

Vide a Sale and Purchase Agreement dated 28.6.2016 (“2016 SPA”), Ramli agreed to sell and the Plaintiff agreed to purchase the Property with the purchase price of RM405,000.00.

After the Property has been registered under the Plaintiff’s name, the Plaintiff discovered that there were three shophouses (“Shophouses”) on the Property erected by the Defendant who has been using them for a business in the name and style of “Perniagaan Chop Yong Heng”. The Plaintiff also found that the Shophouses were illegally erected since 2006.

On 17.4.2019 the Plaintiff filed this suit in the Sessions Court for the following reliefs, inter alia:

a declaration that the Defendant or his representative trespassed and/ or erected buildings illegally on the Property and without the Plaintiff’s consent;

the Defendant is to return the vacant possession of the Property within 14 days of the judgment date;

the Defendant is to remove all structures and buildings on the Property with his own costs before the return of vacant possession of the Property; and

the Defendant is to pay a compensation due to the trespass done by the Defendant on the Property. [6] On 4.9.2019, the Defendant filed the Defence and Counterclaim wherein the Defendant sought the following reliefs, inter alia:

a declaration that the Defendant or his representative has been lawfully residing and building the structures on the Property with the relevant approvals from the original owners of the Land; and

a compensation based on the market value of the Shophouses and a two-storey house which were built by the Defendant’s late grandmother in 1920s. [7] During the trial before the Sessions Court, the Plaintiff herself gave the evidence together with her son, Tey Swi Lai (SP2) who has been managing the affairs of the Property as the Plaintiff is relatively old (82 years old). The Plaintiff also called Zaaba bin Mohd Amin (“SP3”), a land surveyor who conducted the land surveying on the Land. For the Defendant’s side, only the Defendant himself gave the evidence. After hearing the evidence and submissions from both sides, on 27.12.2022, the learned Sessions Court Judge (“SCJ”) allowed the Plaintiff’s claim with the cost of RM10,000.00 and dismissed the Appellant’s counterclaim with another cost of RM10,000.00. [8] In this appeal, the Defendant raised the following grounds, inter alia:

the transfer of the Property between Ramli and the Plaintiff was invalid as it contravened s. 214(1)(b) of the National Land Code (“NLC”);

the Plaintiff failed to establish that the Defendant occupied the Property without the consent of its registered owner;

the Plaintiff failed to establish that the Defendant trespassed the Property; and

the Plaintiff failed to establish that the Shophouses situated on the Property. Whether the transfer of Ramli’s undivided ½ share in the Land contravened s. 214(1)(b) NLC [9] The Defendant submitted that the Land is undoubtedly owned by 11 co-owners including Ramli in which their shares are undivided. As such, the transfer of the Property executed by Ramli in favour of the Plaintiff in 2016 was invalid as it contravened s. 214 of the NLC which restricts the transfer of a part of any undivided share in a land. Since the transfer was invalid, the Defendant averred that the Plaintiff has no locus standi to evict the former or to seek a declaration that the former trespassed the Property. [10] To begin with, I find that the issue relating to the validity of the transfer of the Property executed by Ramli in favour of the Plaintiff was never pleaded by the Defendant. There is not a scintilla of statement in the Defendant’s pleading questioning the validity of the transfer. Instead, this was only raised during the submissions. [11] It is trite that the court is not entitled to decide the case on a matter not pleaded and the trial must be confined to the pleadings. The effect of unpleaded issues in a civil suit was explained in a plethora of cases including Tan Leng Choo v. Law Teck Huat [2008] 1 LNS 568; [2009] 1 MLJ 820; State Government of Perak v. Muniandy [1985] 1 LNS 117; [1986] 1 MLJ 490; Samuel Naik Siang Ting v. Public Bank Bhd [2015] 8 CLJ 944; RHB Bank Bhd v. Kwan Chew Holdings Sdn Bhd [2010] 1 CLJ 665 ; Yew Wan Leong v. Lai Kok Chye [1990] 1 CLJ 1113; [1990] 1 CLJ (Rep) 330; [1990] 2 MLJ 152; Menah Sulong v. Lim Soo & Anor [1983] 1 CLJ 26; [1983] CLJ (Rep) 263; The Carbon Co Sdn Bhd & Anor v. Ng Lee Hoon (conducting under 'Forest Wood Flooring') [2017] 6 CLJ 189; [2017] 4 MLJ 791 and Giga Engineering & Construction Sdn Bhd v. Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 9 CLJ 537). [12] As such, it is not apt for the Defendant to raise this issue at this appellate stage and this Court as an appellate court is not entitled to decide the Defendant’s argument on this issue. [13] Be that as it may, in relation to the Defendant’s argument that the transfer of the Property executed by Ramli in favour of the Plaintiff was invalid as it contravened s.214(1)(b) of the NLC, I find that the argument is blatantly a non-starter. For ease of reference, I reproduce the provision–

What may be transferred, and restrictions on exercise of powers

Subject to sub-section (2), the following shall be capable of transfer under this Act –

the whole, but not a part only, of any alienated land;

the whole, but not a part only, of any undivided share in alienated land;

any lease of alienated land;

any charge; and

any tenancy exempt from registration [14] The above legal restriction in s. 214(1)(b) of the NLC is in relation to the transfer of a part of undivided share in alienated land. It is not applicable, nevertheless, to a transfer involving the whole undivided share owned by an individual in a land. My view is fortified by the decision of the Court of Appeal in Tang Peng Huat & Anor v. Tan Boon Chong & Anor [2015] 2 CLJ 921 where one of the issues was the status of an assignment involving a half undivided share of a land. Aziah Ali JCA when delivering the decision said – [21] The undisputed fact is that both Low Lin Aik ('LLA') and Tan Moi Hong ('TMH') had bought a portion of Lot 380 measuring 350 feet x 109 feet with each owning half undivided share. There is no evidence produced to contradict the appellants' assertion that they had paid the full purchase price to LLA for the whole of her half undivided share. [22] The deed of assignment identified the portion of land which LLA had assigned to the appellants. Clause 2 of the preamble to the deed of assignment dated 30 September 1976 states that it is marked in green in the plan annexed to the said deed. [25] The learned counsel for the respondents contended that LLA had sold half of an undivided share. In our opinion this would be correct if it is viewed in reference to the whole undivided share purchased by LLA and TMH. However, with respect to the half undivided share which LLA herself owned, the deed of assignment shows that LLA has assigned the whole, and not part, of her undivided share. Therefore we find that the deed of assignment dated 30 September 1976 is valid as it has not contravened s. 214 of the NLC. [15] In the present case, it is axiomatic that Ramli had transferred the entire and not part of his undivided share in the Land to the Plaintiff. Hence, such transfer was not in contravention with s. 214(1)(b) of the NLC. Whether the Defendant has been occupying the Property without the consent of its registered owner [16] Another point raised by the Defendant was, the Plaintiff failed to establish that the Defendant has been occupying the Property without the consent of its registered owner. In this issue, I find that once the Property has been registered under the Plaintiff’s name, it is no doubt that she is the registered owner of the Property. As such, it is my view that the burden of proof lies with the Defendant to establish the fact that he or his representative had erected the Shophouses on the Property with the consent of its registered owner and not the other way around. In the oft-quoted case of Juahir Sadikon v. Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 4 CLJ 1; [1996] 3 MLJ 627 it was held: He who alleges must prove such allegation and the onus is on the appellant to do so. See section 103 of the Act. Thus, it is incumbent upon the appellant to produce Tan Sri Basir as his witness to prove the allegation. The fact that the appellant was unable to secure the attendance of Tan Sri Basir as a witness does not shift the burden to the respondent to produce the witness and testify as to what he had uttered, as firstly, the respondent never raised such an allegation and, secondly, has denied even making one. For this very reason, the adverse inference under section 114(g) of the Act relied upon by the appellant cannot be accepted as establishing that if the witness had been produced, his evidence would work against the respondent. There is no obligation in law for the respondent to produce the witness as that obligation rests with the appellant, the party who alleges, and the fact that the appellant was unable to do so is fatal to his case. For this very reason too, the adverse inference under section 114(g) is invoked against the appellant. [17] Not only that, the Defendant also alleged that his grandmother whose name was Tan Hee erected the Shophouses in 1920s on the Property. Therefore, it is incumbent upon the Defendant to prove this allegation. Nevertheless, clearly the Defendant failed to produce any documentary evidence or to call any single registered owner of the Land to establish to the court that the Shophouses were erected on the Property with the consent of its registered owner. Without any evidence produced before the Court, a reasonable inference can be drawn that the Defendant or his representative erected the Shophouses and other structure on the Property without the Plaintiff’s consent. Whether the Shophouses situated on the Property [18] The Defendant averred that the Plaintiff failed to establish that the Shophouses sit on the Property. The Defendant also argued that the evidence given by the Plaintiff’s witness namely SP3 who is a land surveyor cannot be admitted as his evidence did not comply with O. 40A r. 3 of the Rules of Court 2012 (“ROC”). The provision reads – Requirements of expert’s evidence (O. 40A, r. 3)

3.

Unless the Court otherwise directs, expert evidence to be given at the trial of any action, is to be given in a written report signed by the expert and exhibited in an affidavit sworn to or affirmed by him testifying that the report exhibited is his and that he accepts full responsibility for the report.

An expert’s report shall —

give details of the expert’s qualifications;

give details of any literature or other material which the expert witness has relied on in making the report;

contain a statement setting out the issues which he has been asked to consider and the basis upon which the evidence was given;

if applicable, state the name and qualifications of the person who carried out any test or experiment which the expert has used for the report and whether or not such test or experiment has been carried out under the expert's supervision;

where there is a range of opinion on the matters dealt with in the report —

summarise the range of opinion; and

(ii) give reasons for his opinion;

contain a summary of the conclusions reached;

contain a statement of belief of correctness of the expert’s opinion; and

contain a statement that the expert understands that in giving his report, his overriding duty is to the Court and that he complies with that duty. [19] Based on the notes of proceedings, SP3 stated that he holds a bachelor degree in engineering (geomatics) and a diploma in land surveying. He also has more than 10 years’ experience in land management and personally conducted the land surveying on the Land including the Property. [20] Upon perusing his evidence, I can gather these facts –

SP3 confirmed that the Property is part of the Land;

his company (Syarikat Kumpulan Sofian, a registered land surveyor) prepared a plan known as Pelan Penandaan Sempadan (P12) and this plan was confirmed by SP3’s employer (Sofian bin Husin). But Sofian could not attend the court proceedings due to his health constrains. In P12, a few plots are drawn representing the registered owners’ shares in the Land;

the Property is marked with Plots No. 1 and 2. There are boundary marks on the Land to indicate the plots as per P12; and

based on the land survey conducted on the Land, SP3 confirmed that the Shophouses are exactly between Plots No. 1 and 2 i.e on the Property. [21] Based on the above, I find that the SP3’s testimony had complied with all provisions in O. 40A r. 3 of the ROC except paragraphs (b) and

(h). [22] Although there is a slight non-compliance of the provision, it is my considered view that it would not render SP3’s evidence lacking in credibility. Even if the Court does not recognise SP3 as an expert under O. 40A of the ROC due to the above so-called non-compliance, SP3’s evidence has not been rebutted by the Defendant. The Defendant did not bring any expert i.e another land surveyor to counter SP3’s evidence or testimony. As such, I agree with the learned SCJ to admit the SP3’s evidence. [23] Based on the facts adumbrated above, I agree with the finding of the SCJ that the Plaintiff has established that –

there are plot divisions demarcated by boundary marks on the

the Property is marked as Plots No. 1 and 2 on the Land and owned by the Plaintiff;

there are buildings identified as the Shophouses on the Property which are still in existence during the trial;

the Shophouses belong to the Defendant. The Defendant, when cross-examined, admitted that the Shophouses erected by him or his representative; and

the Defendant has trespassed the Property. Whether the doctrine of proprietary estoppel applies [24] Another point raised by the Defendant was that the Plaintiff’s claim is stopped by the doctrine of proprietary estoppel. To support his argument, the Defendant averred that there was no notice issued by the registered owners of the Land to require the Defendant to evict or demolish the Shophouses. This, according to the Defendant, shows that the registered owners of the Land including Ramli allowed or consented the Defendant or his representative to erect the Shophouses. Further, the Defendant averred that he has been paying the annual rates in respect of the Land to Majlis Perbandaran Pontian. [25] On this issue, I can do no better than reproduce what I have been said by Mohd Johan Lee JC (as he then was) in Kepong Development Sdn Bhd v. Ng Bee Wan [2022] CLJU 2093 [2022] 1 LNS 2093 on this doctrine as follows: [63] Proprietary estoppel finds its origin in the 19th century case of Dillwyn v. Llewelyn [1862] 45 ER 1285 and Ramsden v. Dyson [1866] LR 1 HL 129. It arises in circumstances where an owner of land requests another, or even allows another, to expend money on the land under an expectation created or encouraged by the landowner that he will be able to remain there. The foundation of this form of equitable intervention is to estop one party from enforcing his rights at law in respect of the land when to do so would be unconscionable in the circumstances. To quote Hanbury and Martin, Modern Equity, 16th edn., p. 893: "This doctrine is applicable where one party knowingly encourages another to act, or acquiesces in the other's actions, to his detriment and in infringement of the first party's right. He will be unable to complain later about the infringement and may indeed be required to make good the expectation which he encouraged in the other party." [26] In Cheng Hang Guan & Ors v. Perumahan Farlim (Penang) Sdn Bhd & Ors [1994] 1 CLJ 19; [1993] 3 MLJ 352 Edgar Joseph Jr SCJ set the conditions of a proprietary estoppel to be met by stating – "It was argued by counsel for the defendants on the authority of Brinnard v. Ewens, that for this sort of estoppel, four conditions have to be met:

the claimant must have incurred expenditure or otherwise acted to his detriment;

the claimants must have acted in the belief that they either owned or would obtain a sufficient interest in the property to justify the expenditure;

the claimants' belief must have been encouraged by the landlord; and

there must be no bar to the equity such as the contravention of any statute." [27] Based on the above authorities, it is clear that the Defendant’s argument is unfounded. Firstly, the Plaintiff being the owner of the Property has not encouraged or even allowed the Defendant to be on the Property. Secondly, even if the Defendant averred that he had the consent from the Property owner when he paid rentals to Ramli, I find that the Plaintiff was not involved when the consent was granted and such consent must come to an end upon the transfer of the Property to the Plaintiff. Thirdly, the fact that there was no notice to evict the Defendant from the Property by the other Land owners and the payment of the assessment of rates by the Defendant, would not in any manner refute the fact that the Plaintiff is the registered owner of the Property. In short, the Defendant’s argument above would not in any manner relinquish the Plaintiff’s ownership of the Property. Conclusion [28] In the celebrated case of Goh Bak Ming v Yeoh Eng Kong & Other Appeals [2019] 3 MLRA 56 where it was held that the appellate court should not interfere with the finding of the court below unless that court is shown to be plainly wrong in arriving at its decision or there has been no or insufficient judicial appreciation of the evidence (see also Ming Holdings (M) Sdn Bhd v Tuan Syed Azahari bin Noh Shahabudin & Anor [2010] 4 MLJ 577; [2010] 6 CLJ 857 and Lee Ing Chin v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97). [29] In Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453, the Federal Court reiterated the principle on appellate intervention as follows at p.476: [60] It is now established that the principle on which an appellate court could interfere with findings of fact by the trial court is "the plainly wrong test" principle; see the Federal Court in Gan Yook Chin & Anor (P) v. Lee Ing Chin @ Lee Teck Seng & Anor [2004] 4 CLJ 309; [2005] 2 MLJ 1 (at p. 10) per Steve Shim CJ SS. More recently, this principle of appellate intervention was affirmed by the Federal Court in UEM Group Berhad v. Genisys Integrated Engineers Pte Ltd [2010] 9 CLJ 785 where it was held at p. 800: It is well settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence. (See Chow Yee Wah & Anor v. Choo Ah Pat [1978] 1 LNS 32; Watt v. Thomas [1947] AC 484; and Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309). [30] Having considered the facts and the circumstances of the present appeal, I find that the learned SCJ was correct on the basis of the relevant laws and the established evidence in allowing the Plaintiff’s claims and at the same time dismissing the Defendant’s counterclaim. Thus, I dismiss the Defendant’s appeal with costs. Dated: 21.4.2024 -SIGNED- (SHAMSULBAHRI BIN HAJI IBRAHIM) Judge, High Court of Malaya, Johor Bahru Counsels: For the Appellant – G Sugania d/o K Govindan (Chai Yi Ng with her); Messrs. G.K. Sritharan & Co For the Respondent – Norsuryati binti Abd Karim (Ungku Ahmad Hafis Ungku Fathil with her); Messrs. Chiong & Partners Cases referred to:  Cheng Hang Guan & Ors v. Perumahan Farlim (Penang) Sdn Bhd & Ors [1994] 1 CLJ 19; [1993] 3 MLJ 352  Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453  Giga Engineering & Construction Sdn Bhd v. Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 9 CLJ 537  Goh Bak Ming v Yeoh Eng Kong & Other Appeals [2019] 3 MLRA 56  Juahir Sadikon v. Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 4 CLJ 1; [1996] 3 MLJ 627  Kepong Development Sdn Bhd v. Ng Bee Wan [2022] CLJU 2093 [2022] 1 LNS 2093  Lee Ing Chin v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97  Menah Sulong v. Lim Soo & Anor [1983] 1 CLJ 26; [1983] CLJ (Rep) 263;  Ming Holdings (M) Sdn Bhd v Tuan Syed Azahari bin Noh Shahabudin & Anor [2010] 4 MLJ 577; [2010] 6 CLJ 857  RHB Bank Bhd v. Kwan Chew Holdings Sdn Bhd [2010] 1 CLJ 665  Samuel Naik Siang Ting v. Public Bank Bhd [2015] 8 CLJ 944;  State Government of Perak v. Muniandy [1985] 1 LNS 117; [1986] 1 MLJ 490  Tan Leng Choo v. Law Teck Huat [2008] 1 LNS 568; [2009] 1 MLJ 820  Tang Peng Huat & Anor v. Tan Boon Chong & Anor [2015] 2 CLJ 921  The Carbon Co Sdn Bhd & Anor v. Ng Lee Hoon (conducting under 'Forest Wood Flooring') [2017] 6 CLJ 189; [2017] 4 MLJ 791  Yew Wan Leong v. Lai Kok Chye [1990] 1 CLJ 1113; [1990] 1 CLJ (Rep) 330; [1990] 2 MLJ 152 Legislations referred to:  National Land Code - s. 214(1)(b)  Rules of Court 2012 - O. 40A r.