Judgment

Shaik Daud, JCA

(delivering the judgment of the court)

1. The appellant is the registered owner of land known as HS(D) 66601 PT 2473 Mukim Setapak, Federal Territory which consists of 487,533 square feet of land (the said land). The said land was registered in the appellant's name on July 6, 1990. At that material time all the four respondents and a number of others were living on the said land. The appellant purchased the land from one STLR Sdn Bhd who became the owner of the land on October 26, 1985. Prior to that date the land belonged to the Government.

2. As the registered owner, the appellant filed a claim against the four respondents claiming that they were trespassers and prayed for vacant possession, mesne profits from October 11, 1993, until delivery of vacant possession, damages for trespass, interest and costs.

3. The respondents denied that they were trespassers. They contended that they were the lawful occupants of the said land as licensees coupled with equity and that the appellant knew or ought to have known of the equity. They also contend that their continuous occupation of the said land was known to or expressly and / or impliedly acquiesced and / or encouraged by the State Authority and / or the City Hall of Kuala Lumpur, the predecessors of the appellant.

4. After a full and lengthy trial in which the learned Judge traced the history of the said land, he came to the conclusion that on the facts before him, he was satisfied that the respondents were not squatters simpliciter but were in occupation of the said land as licensees and with the consent of the State Authority that they could occupy or continue to occupy the said land.

5. In the light of that finding, the learned Judge gave vacant possession to the appellant subject to the appellant compensating the four respondents for all costs incurred in the construction and renovation of their respective houses, or alternatively the costs of the present value of the said houses to be assessed by an independent valuer to be mutually agreed to by the parties or if they fail to agree, to be appointed by the court and all costs incidental to relocating the respondents. The learned Judge also rejected the appellant's claim for special damages on the ground that they have not been sufficiently proved.

6. On our perusal of the records of appeal and after considering the submissions of both learned counsel, we find ourselves unable to disagree with the findings of the learned Judge. There was ample evidence before him to arrive at those conclusions.

7. The central issue before the court was the status of the respondents as far as the said land is concerned. The appellant contended all along that the respondents were squatters simpliciter and therefore they were trespassers on the said land. The respondents on the other hand, are not claiming any title to the said land. That the appellant is the registered owner of the said land is undisputed. The respondents while conceding that the appellant is now the registered owner, are contending that they are not squatters simpliciter but they occupied the said land with a licence in equity.

8. The said land appeared to have a chequered history. Initially the said land was a Malay Reserve land but such status was cancelled. Based on the evidence of a land surveyor one Seah Kok Seang, who testified as an expert witness, the learned Judge accepted his expert testimony that the Malay Reservation status was degazetted by Gazette Notification No 4851/1932 dated June 22, 1932. This was confirmed in a letter from the Director of Lands & Mines dated February 9, 1996.

9. The respondents contend that when the appellant became the registered owner of the said land, it knew or ought to have known of the equity which had existed long before it became the owner. The respondents also contended that their continuous occupation of the said land was known to or expressly or impliedly acquiesced and / or encouraged by the State Authority or by the City Hall.

10. It is also in evidence that between 1960 and 1990 various amenities were provided by the authorities such as a town hall, three mosques, water and electricity supply, telephone services, a clinic and the roads were paved.

11. The City Hall built a second town hall and a building to conduct women's development activities and a number of religious schools. The respondents also led evidence to show that this village, called Chubadak village was self-governed and self-administered.

12. There was also evidence that prior to the formation of the Federal Territory, the Selangor State Government formed a body known as the Committee of Village Development and Security (CVDS.) in this village which was headed by the Village Head.

13. When the Federal Territory was established on February 1, 1970, the CVDS was replaced by City Hall officials and the post of Village Head was abolished. In 1987, however, this post was revived and the Ministry of the Federal Territory appointed the former Village Head to administer this village.

14. In the 1960s, the Kuala Lumpur District Officer prepared a layout plan for the former mining land at which Chubadak Tambahan village and Puah Seberang village are situated, the object of which was to sub-divide the said land into various lots which would be allocated to the then residents occupying the said land.

15. It is the contention of the respondents that between 1960 and 1990, many dignitaries made official visits to this village and they included politicians and royalties. In fact during the official launch of the Klinik Kesihatan Kanak-Kanak dan lbu in Chubadak Tambahan village, the then Chief Minister, Mr. Harun ldris, promised that the Selangor State Government would take certain measures to enable the residents of the village and an adjoining village to obtain ownership of the land they occupied.

16. This, the learned Judge found, was not a mere political gimmick but was based on a decision of the then Selangor State Executive Council. It was contended that the Chief Minister had no authority to bind the State Authority and his promise is insufficient. The Judge was mindful of the case of Lebbey Sdn Bhd v Chong Wooi Leong [1998] 1 AMR 497, where it was held that 'State Authority' under the National Land Code is defined for the purpose of Selangor as the Ruler.

17. But in the present case the then Chief Minister was in fact conveying the decision of the State Executive Council and for all practical purposes the Ruler must act on the advice and recommendation of the State Executive Council. In 1974 the then Chief Minister also informed the residents that the State Government was going to issue separate titles to the settlers. He also referred to the minutes of a meeting dated December 9, 1976, which indicated that there was approval given by the State Executive Committee of Selangor on August 9, 1962, to alienate the said land to the Malay occupants residing in the land.

18. After the formation of the Federal Territory in 1974 and on January 10, 1976, the Land Executive Committee of the Federal Territory, which is the equivalent of the State Commissioners for Lands and Mines in other States, expressly agreed that the said approval of the Selangor State Executive Committee be carried out by the Collector of Land Revenue of the Federal Territory. There was no evidence that the Land Executive Committee of Federal Territory had changed or revoked its policy in relation to the occupation of the Malay residents of Chubadak village. All these remained unchallenged.

19. Having traced the history of the said land and as to how and when each of the respondents came to be on the said land, and considering the Federal Court decision in Bohari Taib v Pengarah Tanah & Galian Selangor [1991] 1 MLJ 343, the learned Judge came to the conclusion that the respondents were not squatters simpliciter, as the appellant was trying to make them out to be. He found there was consent and licence from the State Authority that the respondents can occupy or continue to occupy the said land.

20. The respondents also established that based on the State Authority's acquiescence, encouragement and approval, they expanded money and labour to improve and further develop the land in Chubadak Tambahan, which was a former mining land. All these were known to the predecessors of the appellant.

21. Therefore, on the evidence before the learned Judge, he rightly came to the conclusion as he did and we have no reason to disagree. We dismissed the appeal with costs and confirmed the findings and orders of the learned Judge and also ordered that the deposit be paid out to the respondents to account of their taxed costs.

Cases

Bohari Taib v Pengarah Tanah & Galian Selangor [1991] 1 MLJ 343; Lebbey Sdn Bhd v Chong Wooi Leong [1998] 1 AMR 497.

Representations

G Gunaseelan, T Gunaseelan and K Balaguru (G Gunaseelan & Associates) for Appellant

Salleh Abas, Sivarasa Rasiah and Kamarul Hisham (Daim & Gamany) for Respondents