The Lady Superior Of The Society Of Saint Maur v Pendaftar Hakmilik Tanah Negeri Melaka (MA-24NCvC-82-03/2025)

1 IN THE HIGH COURT OF MALAYA AT MALACCA IN THE STATE OF MALACCA ORIGINATING SUMMONS NO. MA-24NCVC-82-03/2025 BETWEEN THE LADY SUPERIOR OF THE SOCIETY OF SAINT MAUR …PLAINTIFF AND PENDAFTAR HAKMILIK TANAH NEGERI MELAKA …DEFENDANT GROUNDS OF JUDGMENT Introduction

1. The Plaintiff in its Originating Summons is seeking, inter alia, for a declaration that the name “French Convent” which is the registered owner of all that piece of land held under Grant No. 383310, Lot No.35, Kawasan Bandar XXVIII, District of Melaka 05/04/2026 19:56:47 MA-24NCvC-82-03/2025 Kand. 27 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Tengah, State of Malacca (“the said Land”) is in fact and in law, referring to the Plaintiff.

2. The application is made on a backdrop of Malacca’s rich history as defined by successive waves of colonial powers, namely the Portuguese, Dutch, and British, each imposing distinct systems of administration that shaped its political, economic, and cultural identity.

3. With distinct systems, inadvertently, transitional periods that came with the transfer from one system of administration to another saw unavoidable teething problems, particularly from the Dutch to the English system and to our current national land administration under the Torrens System under the National Land Code.

4. Whilst measures were made to facilitate the transfer through the National Land Code (Malacca and Penang Titles) Act 1963, there were several instances of incidents of omissions or lands that were not transitioned smoothly, or one might say slipped through the cracks. This case is one of those. **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Brief Facts

5. From the affidavits, it is undisputed that the said Land was originally held under a title that was issued under the Dutch Administration in the late 18th century. The said Land together with several other pieces of lands were held by the French Christian Missionaries whose primary objective was for the provision of education with the setting up of schools all over Malaysia.

6. In this instant case, the said Land was part of several lands purchased by these missionaries in Malacca sometime in 1875 to set up what was then known as “the French Convent”. In 1957, the primary and secondary schools were known as Sekolah Kebangsaan and Sekolah Menengah Kebangsaan Convent of the Holy Infant Jesus respectively.

7. Although, these schools were administered together, both schools were on different plots of land (adjacent to one another), one under GRN 12635, Lot 549, Kawasan Bandar XXV, District of Melaka Tengah, State of Malacca and the other on the said Land. This land found its way to be registered under the Plaintiff. However, the said Land was not. **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

8. It is against this backdrop that this application is filed. Historical records, letters, old legislations and other evidence were produced and none were seriously in dispute between the parties. However, the applicability of Section 378 of the National Land Code in matters of this nature was of particular concern to me, in light of the provisions of the National Land Code (Malacca and Penang Titles) Act 1963.

9. Hence, as a curial query, apart from the case as presented by both parties, since this was not raised in any of the affidavits but highlighted during the course of submissions by the parties, I posed the additional question to the parties and invited further submissions by both parties on the applicability of National Land Code (Malacca and Penang Titles) Act 1963. Issues

10. The issues for determination in this application are:

(ii) Whether the Plaintiff’s reliance on Section 378 of the National Land Code (“NLC”) and Section 417 thereof is procedurally correct;

(iii) Whether any other objections raised by the Defendant, including historical denials and allegations of delay, affect the Plaintiff’s claim;

(iv) (additional, posed by this court) Whether the proper mechanism for relief lies instead under Sections 53– 55 of the National Land Code (Penang and Malacca Titles) Act 1963 (Act 518). The Application

11. For clarity, notwithstanding the issues as detailed above, the application filed by the Plaintiff is pursuant to: a. Section 378 of the NLC, concerning changes of name in the register in respect of alienated land; and b. Section 417 of the NLC, which confers general powers on the Court to give effect to such changes. In this instance, to change the name of registered proprietor, “The French Convent” to the Plaintiff. **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 The Facts as Disclosed

12. Upon consideration of the affidavits, this Court finds that: -

(ii) The closest reference to the Plaintiff and the French Convent in my mind, is the excerpt of the speech made during the second reading of The Lady Superior of the Society of the Saint Maur Bill 1955, where the Member for Education, one Mr LD Whitfield said this:- **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 (Enclosure 8, Exhibit “I” – Highlighting added)

(iii) No contrary evidence had been adduced by the Defendant on the balance of probabilities;

(iv) The Defendant’s objection in Enclosure 7 amounted, with all due respect, to bare denials and reliance on registry entries, which are insufficient to rebut the Plaintiff’s case. Ironically, the very reason for this application by the Plaintiff is because its name is not on the registry entries;

(vi) Acceptance of the Defendant’s position per se would leave the question of who is the registered proprietor of the land unanswered due to the uncertain status of “The French Convent”;

(vii) Accordingly, this Court is inclined to accept the Plaintiff’s factual and historical narrative of the French Convent.

13. Verily, the Defendant’s opposition can summarily be viewed as to not outrightly deny the stance taken by the Plaintiff but merely concluding that the alleged evidence put forward by the Plaintiff were insufficient or inconclusive.

14. That being said, however, I then proceeded to apply these findings within the legal framework that this Court ought to consider in matters of this nature. Statutory Framework

15. The provisions relied upon by the Plaintiff are sections from the National Land Code: - Section 378 National Land Code **Note : Serial number will be used to verify the originality of this document via eFILING portal 9

(1) Subject to subsection (2), the Registrar may, upon the production to him of evidence (whether in the form of a deed poll, official certificate, statutory declaration or otherwise) from which he is satisfied of a change of name on the part of any person or body in whom any alienated land or interest is for the time being vested, or at whose instance a caveat has been entered in respect of any land or interest, make a memorial of the change in the relevant register document of title and in any issue document of title or other instrument relating to the said land or interest. (emphasis added)

(2) In the case of a natural person, such change may also refer to the description of his citizenship or the number of identity card issued to him under the National Registration Act 1959 [Act 78] or, where no such identity card has been issued to him, the number appearing in his passport or any other official document of identity. Section 417 National Land Code

(1) The Court or a Judge may by order direct the Registrar or any Land Administrator to do all such things as may be necessary to give effect to any judgment or order given or made in any proceedings relating to land, and it shall be the **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 duty of the Registrar or Land Administrator to comply with the order forthwith.

(2) Where, pursuant to any order made by virtue of this section, the Registrar or any Land Administrator—

(3) Where the Registrar or Land Administrator takes action under this section in respect of any land or any share or interest therein, he shall cause notice of his action to be served upon any person or body having a claim protected by caveat affecting the land, share or interest.

16. I now consider the operating phrase under s.378(1) which would empower a change to be made by the Registrar: - “…from which he is satisfied of a change of name on the part of any person or body in whom any alienated land or interest is for the time being vested…” **Note : Serial number will be used to verify the originality of this document via eFILING portal 11

17. I could not find that there is clear evidence to show that the Plaintiff had undergone a name change from the “French Convent”. At best, circumstantial evidence that leans to the fact that the French Convent was the activity being conducted (as convents were usually referred to as places of education) on the said Land or the common name to describe places of education of similar nature.

18. What is certain is that the current scenario is not merely a change of name simpliciter. In Foo Loke Ying & Anor v Television Broadcasts Ltd & Ors [1985] 2 MLJ 35, the Supreme Court then at page 44: - “As we have stated at the outset the whole case turns on a question of statutory construction. In Seaford Court Estates Ltd v Asher, Denning LJ said (at page 499): “…A judge must not alter the material of which it (the prescript) is woven but he can and should iron out the creases..” What we are however asked to do in this case is not to iron out any creases (and there are none in any event perceptible to the Act) but to replace the material of the Act with linen of the appellants’ choice, which is certainly not the business of the court. Any such exercitation would mutate and indeed mutilate the intention of the legislature and amount to unwarranted judicial transgression into the legislative domain. To accept the **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 submissions put to us on behalf of the appellants would be to countenance in the realm of statutory construction a free-for-all like the aftermath of an English football match.”

19. I am in agreement with the judgment of the Supreme Court above on the Court’s duty and function (but as for the consequences if the opposite were true, it must be viewed in the context when it was pronounced then vis a vis the reference to the English football match, which was in the mid-1980s when football hooliganism and fan violence were at their peak-admittedly, much has changed since then).

20. Based on the submissions of the Defendant, this Court is of the view that the correct approach is as per envisaged under the

518. National Land Code (Penang and Malacca Titles) Act 1953 – Act Sections 53 to 55 of the said act seem to cater for circumstances as seen here. The relevant provisions are reproduced below: - Section 53 National Land Code (Penang and Malacca Titles) Act 1963

(1) Any person claiming- **Note : Serial number will be used to verify the originality of this document via eFILING portal 13

(2) Upon receiving any claim under subsection (1) the Director shall thereupon endorse upon the appropriate folio of the Interim Register a notice of such claim, and upon the making of such endorsement every person dealing with such holding shall be deemed to deal with it subject to and with notice of such claim.

(3) After making the endorsement required by subsection (2) the Director shall as soon as may be thereafter serve a notice of the claim made under subsection (1) in Form F on all persons to his knowledge affected thereby and take such further action under this Act as he may consider necessary for the due investigation and disposal of such claim.

(4) ….. **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 Section 54 National Land Code (Penang and Malacca Titles) Act 1963

(1) Whenever every person on whom a notice of any claim has been served under subsection 53(3) admits such claim the Director shall by writing under his hand and seal amend the Interim Register as may be necessary (subject to this Act) to give effect to such claim, and shall cancel the endorsement made under subsection 53(2).

(2) Whenever any person on whom a notice of any claim has been served under subsection 53(3) within one month of the date upon which such notice is served on him objects to or fails to admit such claim, the Director shall hold an enquiry and shall give notice to all persons interested therein of the date when and the time and place at which he proposes to hold such enquiry.

(3) At any enquiry held under subsection (2) the Director may confirm, amend or reject any claim, as he may think just, and shall so notify all persons interested therein: Provided that he shall not cancel any endorsement made under subsection 53(2) or amend any entry in the Interim Register before the period prescribed for appeal shall have expired. **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 Section 55 National Land Code (Penang and Malacca Titles) Act 1963

(1) Whenever any question arises in any claim made under section 53 concerning-

(5) Whenever the Director refers any question to the Court under subsection (1), he shall serve notice on all parties interested **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 therein accordingly, and shall forthwith enter a caveat upon any appropriate folio or folios of the Interim Register.

(6) In considering any reference under this section the Court shall allow the Director and any of the persons interested in the reference to appear before it, and may summon any other of such parties to appear and show cause either personally or by his advocate and solicitor in relation thereto; and if in such reference the Court, having regard to the parties appearing before it shall think it proper to decide the question contained in such reference it shall have power to do so, or to direct that any proceedings be instituted for that purpose or, at the discretion of the Court and without deciding such question, to direct such entry or entries to be made on the Interim Register as under the circumstances shall appear to be just.

(7) No appeal shall lie from a decision of the Court under this section except with the leave of the *Federal Court.

(8) The powers conferred upon the Director by this section shall be exercisable only by that officer.

(9) Any caveat referred to in subsection (2) shall be entered in accordance with and shall be subject to and removable or renewable under the National Land Code. **Note : Serial number will be used to verify the originality of this document via eFILING portal 17

21. The Court agrees with the submissions of the learned State Legal Advisor that the applicable legislation is Act 518 as Sections 53, 54 and 55 therein provide a specific mechanism for circumstances such as the present case.

22. While the Court acknowledges the principles laid down in Mother Superior of the Daughters of Charity v. Director of Land Titles, Malacca [2025] 5 CLJ 316, the facts therein are distinguishable. Nevertheless, the principle at paragraph 51 of that decision is applicable, being claims of this nature must be presented under Section 53 in Form E of Act 518. Analysis

23. This Court finds that Section 53 of Act 518 is sufficiently wide to cover the present circumstances, whether: - i. under Subsection (1)(a) (where the Plaintiff is not the named registered owner); ii. or Subsection (1)(b), which includes the phrase “or otherwise” in addition to “wrongly” and “in error.”

24. It is only after all the specific mechanisms provided therein have been exhausted will the Court intervene. **Note : Serial number will be used to verify the originality of this document via eFILING portal 18

25. Accordingly, this Court finds that Sections 378 and 417 of the NLC are inapplicable. The Plaintiff’s reliance on Section 378 amounts to an incorrect procedural approach.

26. The powers of this Court arise only under Section 55 of Act 518. The case of Che Dah & Anor v Commissioner of Land Titles (Penang and Malacca) Penang [1973] 2 MLJ 29 cited by the Plaintiff, is not applicable, as Chang Min Tat J (as he then was) referred specifically to “dealings” under Section 5 of the NLC, which concern transactions governed by Division IV of the NLC.

27. The Court makes no findings on other issues raised, including allegations of laches or delay. Decision

28. For the reasons above, Enclosure 1 is dismissed solely on the ground that the Plaintiff employed the incorrect procedure by relying on Section 378 of the NLC. The proper procedure is prescribed under Act 518.

29. There will be no order as to costs. **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 Postscript The Court records its appreciation for the oral and written submissions of both learned counsels. The cordiality and professionalism displayed throughout these proceedings are commendable. Dated 5th April 2026 ISA AZIZ IBRAHIM JUDICIAL COMMISIONER HIGH COURT OF MALAYA MALACCA **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 For the Plaintiff : Nurul Salasiah M/s Andrew T S Goh & Khairil For the Defendant : Datuk Khairul Azreen Puan Nor Azizah Yusof Tuan Mohd Idzwan Melaka State Legal Advisor Officer **Note : Serial number will be used to verify the originality of this document via eFILING portal