Judgment[a]

Abdul Malik Ishak, J

1. This judgment examines the rigours of the law of limitation and it adds colour to an otherwise boring subject. According to the case of Pandurang v Maruti Hari AIR (1966) SC 153, in approaching questions of limitation one must be prepared to consider it as mixed questions of law and fact. And any delay must be explained forthwith (Eliajar v Dayanidhi AIR (1971) Ori 133; Krishna Kumar v JN Bhan 75 CWN 573; and Ramlal Motilal v Rewa Coal Fields AIR (1961) SC 361, (1961) 2 SCJ 556).

   NOTICE OF MOTION IN ENCLOSURE 3

2. By way of a notice of motion in Encl 3, as amended in Encl 6, both the applicants sought for the following orders:

   1. an extension of time to file the present application; a declaration that the property redeemed by the Government in 1895 and the acquisition of the said property (referring to Geran 158, Lot 129, Bandaran Johore Bahru) on October 24, 1950 was illegal',

   2. a declaration that the acquisition by the Johore State Government under s 54 of the Land Enactment (No 1) vide CL&M 18/1982 dated October 24, 1950, CL&M 226/1950 was null and void under the law,

   3. that the transfer of the said land (referring to the said property in question) by the Johore State Government to the Federal Government was illegal and void under the law,

   4. in the event the acquisition was valid, the applicants apply that compensation and/or damages be paid to them in regard to the acquisition of the said land (referring to the said property in question), and

   5. any other relief which the court deemed fit and appropriate.

3. The notice of motion was supported by an affidavit affirmed by both the applicants on September 21, 1998 (Encl 2). By way of a response, the respondents through one Shubanah Yusuf - an Assistant Director of Lands and Mines, State of Johore, affirmed an affidavit-in-reply on September 6, 1999 (Encl 7). Both the applicants responded by filing an affidavit-in-reply on October 1, 1999 and that affidavit-in-reply (Encl 8).

4. Raja Azlan Shah, Acting CJ (Malaya), a brilliant Judge of his time and now His Royal Highness the Sultan of Perak in the case of Pengarah Tanah & Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1971] 1 MLJ 135 blazed a trail for other Judges to follow when his Royal Highness, in fine language, said at p 148 of the report:

   Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene. The courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizen: so that the courts can see that these great powers and influence are exercised in accordance with law. I would once again emphasise that what has often been said before, that 'public bodies must be compelled to observe the law and it is essential that bureaucracy should be kept in its place', (per Danckwerts LJ in Bradbury v London Borough of Enfield [1967] 3 All ER 434, 442).

5. A declaration is an all purpose remedy and it is applied to "a wide variety of cases in terms of subject-matter" (per Raja Azlan Shah acting LP (as His Majesty then was) in Dato' Menteri Othman Baginda v Dato Ombi Syed Alwi Syedidrus [1981] 1 MLJ 29, 31). It is a remedy developed by the courts of equity in England and in due course, it was adopted, refined and adapted by the common law courts. According to Woolf and Zamir, "The Declaratory Judgment" (2nd Edn), declaratory judgments play an important part in settling disputes between the parties in the context of private law. In essence, declaratory judgments would state the legal rights of the parties and in suitable cases the courts would supplement it with other remedies. But declaratory judgments merely state some existing legal position; it does not require anyone to do anything and if anyone is to disregard it, it will not open that individual to contempt (Webster v Southwark LBC [1983] QB 698). Once the legal position has been pronounced by the court, it opens the door to other avenues. The successful party to a declaratory order would seek other remedies in order to give effect to that declaratory order.

6. It is germane to mention that declaration is a discretionary remedy and it varies from case to case. The courts have been vigilant in the past and it would continue to be vigilant. The courts have refused to grant relief to speculators and busybodies and to those people who merely ask hypothetical questions (Re Barnato [1949] Ch 258; and Harrison v Croydon London Borough Council [1968] Ch 479). Parties who are interested in seeking declarations must have sufficient interests to advance. Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 aptly said that:

   The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought ...

7. So long as the applicant for a declaration can show that he has some legal right of his own to advance, the court can make the necessary declaration which the applicant seeks. In Gouriet v Union of Post Office Workers [1978] AC 435 at 501, Lord Diplock explained the situation in this way:

   But the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of any one else.

8. In the context of administrative law, declaration is the best vehicle to utilise in order to obtain a remedy against ultra vires action by Government authorities of every kind. Declarations can also be obtained against ministers and government servants and even the Government itself. Thus, if the court were to declare that the proposed action or an action that has been taken is unauthorised by and under the law, that would be the end of the matter. It concludes the matter, so to speak, between the parties thereto. If an applicant is dismissed from office, he can by way of declaration insist that he still holds the job (Ridge v Baldwin [1964] AC 40). If the applicant's property is taken, he has his remedy by seeking a declaration and then obtain other legal remedies that flow from it. In my judgment, a declaration is the best way to settle disputes with government authorities because it does not constitute a threat or a compulsion, but, nevertheless, it is an effective remedy.

9. What are the virtues of a declaratory action? It gives relief before damage is caused and it clarifies the legal position of the parties (Petaling Tin Bhd v Lee Kian Chan [1994] 2 AMR 929 at 950). A public authority is known to obey the law and it is in this context that a declaration becomes useful. Even though a declaration has no coercive force it will definitely undermine the enforceability of an administrative act.

10. I did say that a declaration is an all encompassing remedy and this can be seen in the case of Barnard v National Dock Labour Board [1953] 1 AII ER 1115. That was a case where a dock worker had been suspended for disobeying an order and he sought a declaration that his suspension was wrongful. As the case progressed, it transpired that the dock worker's suspension was null and void because the dock manager who had suspended him had no statutory power at all to suspend him. The court of the first instance granted the declaration that was sought since the time limit for seeking an order of certiorari had expired through no fault of the dock worker. On appeal, the Court of Appeal held that declaration might be awarded against a statutory tribunal as an alternative remedy to certiorari.

11. In the Malaysian context, there is a statutory flavour in the form of the Specific Relief Act 1950 ("SRA"). Section 41 of the SRA enacts as follows-

    Discretion of court as to declaration of status or right Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in that suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so. Explanation - A trustee of property is a 'person interested to deny' a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.   ILLUSTRATIONS A bequeaths his property to B, C and D, 'to be equally divided amongst all and each of them, if living at the time of my death, then amongst their surviving children.' No such children are in existence. In a suit against A's executor, the court may declare whether B, C and D took the property absolutely, or only for their lives, and it may also declare the interests of the children before their rights are vested. A covenants that, if he should at any time be entitled to property exceeding $100,000, he will settle it upon certain trusts. Before any such property accrues, or any persons entitled under the trusts are ascertained, he institutes a suit to obtain a declaration that the covenant is void for uncertainty. The court may make the declaration. A is in possession of certain property. B, alleging that he is the owner of the property, requires A to deliver it to him. A may obtain a declaration of his right to hold the property. A bequeaths property to B for his life, with remainder to B's wife and her children, if any, by B, but, if B dies without any wife or children to C, B has a putative wife, D, and children, but C denies that B and D were ever lawfully married; D and her children may, in B's lifetime, institute a suit against C and obtain therein a declaration that they are truly the wife and children of B.

    and it certainly gives the court a discretionary power to grant a declaration.

12. It would be apparent that under s 41 of the SRA, the court will only make a declaration when the plaintiff has some legal right or legal position to advance. A declaration too can be sought under s 41 of the SRA in regard to the plaintiffs entitlement to a legal character or status or right to property. On the other end of the fence, there is Order 15 r16 of the Rules of the High Court 1980 ("RHC") which gives a wider power to the court to issue a declaration and that Order reads as follows:

    No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether or not consequential relief is or could be claimed.

13. According to Tan Sri Haji Othman Saat v Mohamed Ismail [1982] 2 MLJ 177; and Lim Cho Hock v Speaker, Perak Legislative Assembly [1979] 2 MLJ 85, the plaintiffs need only establish that their legal interests are peculiarly affected in the context of Order 15 r16 of the RHC.

14. So much for the law and I will allude to the law once again in the later part of this judgment. I must now narrate the facts behind the notice of motion in Encl 3 as amended by Encl 6.

    FACTS OF THE CASE

15. To galvanise the facts, I must refer to Encls 2, 7 and 8.

    Note: Enclosure 2 - affidavit of applicants filed in support of the motion. Enclosure 3 - the motion (amended by Encl 6) Enclosure 7 - affidavit of respondent filed in resisting the motion. Enclosure 8 - affidavit of applicants filed in reply to Encl 7

    Enclosure 2: Applicants' Affidavit Supporting the Motion

16. In Encl 2, both the applicants deposed that all the facts stated in the affidavit were true and it came from their own knowledge as well as from the letters or documents that were in their possession and/or given to them save as otherwise stated therein. The applicants were co-administrators of the estate of the late Ungku Abdullah who was also known as Ungku Abdullah Temenggong Daing lbrahim and that estate was in relation to a property located in Johore Bahru measuring 6 acres 0 rood 30 poles held under Geran 158, Lot 129, Bandaran Johore Bahru ("the said property").

17. It was deposed that Ungku Abdullah died on March 23, 1893 leaving the said property in question. By way of petition for a letter of administration dated June 26, 1996, which was extracted on January 13, 1998 the Johore Bahru High Court vide Petition Number 31-112-1995 appointed the applicants, who were the lawful great grand children of the late Ungku Abdullah, as co-administrators of the estate of the late Ungku Abdullah.

18. The petition for the letter of administration was exhibited as Exh "A-1" and I do not propose to reproduce it in this judgment. Suffice for me to say that the estate of the late Ungku Abdullah under the "Schedule of the property of the abovenamed deceased" was the property in question. The faraid certificate issued by the Kadi's office at Johore showed that there were 624 beneficiaries to the estate of Ungku Abdullah and that faraid certificate was exhibited as Exh "A-2".

19. It was deposed that according to the endorsements on the title of the said property, the registered proprietor was, at all material times, none other than Ungku Abdullah. Both the applicants deposed that they were made to understand that the property in question was charged to a chettiar in 1890 by Ungku Abdullah who later died on March 23, 1893; and the said property was redeemed by the Government in 1895.

20. A copy of the letter dated August 27, 1972 emanating from the State Legal Adviser of Johore explained the status of the said property and it appeared from the tenor of the letter that the fate of the beneficiaries of the estate of Ungku Abdullah had been determined by the law of limitation. But was this really so? I shall revert to this nagging question in the later part of this judgment. In the meantime, I will continue to narrate the facts of the present case.

21. The applicants further deposed that the said property had been acquired by the Johore State Government under s 54 of the Land Enactment (No 1) vide CL&M 18/1932 dated October 24, 1950, CL&M 226/1950. The letter from the State Legal Adviser of Johore dated June 29, 1998 enclosing the details of the search at the land office were quite interesting and they were exhibited as Exh "A-4". That letter from the State Legal Adviser of Johore once again alluded to the law of limitation and for the very first time the land office search showed that the said property was acquired under s 54 of the Land Enactment (No 1). The letter from the State Legal Adviser of Johore dated June 29, 1998 it reads as follows:[b]

    Exh "A-4"

    Messrs Lim & Hooi, .....   29 June 1998   Claim for compensation and/or damages in respect of Malay Grant No. 158 Lot 129 Town of Johore Bahru. We refer to your letter dated 15 May 1998 concerning the above matter. Please be informed that according to our record Almarhum Ungku Abdullah charged the land to a chettiar in 1890 and he passed away on 23 Mac 1893. The land was redeemed by the Government in 1895 and thereafter the Government had taken over the land as Government property on 24 October 1950. Through Gazette G.N. 386 dated 10 May 1951, the said land was reserved for 'Telecom Exchange Building maintained by the Controller of Telecoms Johore.' We would also like to inform you that no action against the Government may be taken now because of time bar under the Limitation Act. Sekian, terima kasih.                  sgd. .....

    The search at the land office revealed the following details:[c]

    THE OFFICE OF LANDS AND MINES, STATE OF JOHOR Date of Search: 28 May 1998 Serial No: 4028 Search By: signature (not clear) Title Search Details Page: 1 TITLE PARTICULARS: 1. District : Johore Bahru 2. Mukim : Township of Johore Bahru 3. Title No. : Malay Grant No. 158 4. Lot No. : 129 5. Category of land : individual 6. Encumbrance : none 7. Land area : 6E. 0R 30Poles meter square 8. Annual rates : none 9. Land status : Malay Grant 10. Category of land use : building 11. Express condition : none 12. Restrictions in interest : none 13. Date title registered : 4 Rabi'el Akhir, 1297 (1877) 14. Date of alienation : as above 15. Original title No. : Yang Mulia Ungku Abdullah also known as Ungku Abdullah Temenggong Daing Ibrahim. 16. Last title No. : land was taken over by the state government of Johore under section 54 of the Land Enactment through C.L.&M. 18/1932 dated 24th October, 1950 C.L.&M. 226/1950

22. By a gazette notification dated May 10, 1951, the property in question was reserved for a public purpose and that gazette notification as seen in Exh "A-5" explained the situation in this way.

    Exh "A-5"

    FEDERATION OF MALAYA GOVERNMENT GAZETTE JOHORE [May 10, 1951] RESERVATIONS OF LAND FOR PUBLIC PURPOSES. No. 386. In exercise of the powers conferred upon him by section 10 of the Land Enactment, the Commissioner of Lands And Mines, Johore, hereby declares that the parcel of land, situated in the Township of Johore Bahru, described in the Schedule hereto, and delineated upon plan No. 22257 deposited in the Survey Office, Johore Bahru, is reserved for a public purpose, to wit, a Government building, to be maintained by the Controller of Telecommunications, Johore, and his successors in office. Dated at Johore Bahru, this 23 day of April, 1951. [R.C.J. 402/46; C.L.M. 226/50; D.O. J.B. (L) 2358/50.] RAJA SULAIMAN BIN RAJA HAJI BOT, for J.S.H. CUNYNGHAM-BROWN, M.C.S., Commissioner of Lands and Mines, Johore.

23. And it seemed, as deposed by the applicants, that the Johore State Government had acquired the said property without informing and without paying any compensation and/or damages to the registered proprietor of the said property or to the surviving beneficiaries of the late Ungku Abdullah. It was further deposed that the State Government had acquired the said property and had transferred certain portion of the said property to the Federal Government to build the Telecoms department. Both applicants had sought confirmation from the Telecoms department in regard to the take over of the said property by a letter dated August 26, 1998.

24. The response from the Telecoms department was by a letter dated August 28, 1998 and it confirmed what was sought to be confirmed and that letter was worded in this way:[d]

    TELEKOM MALAYSIA 28 August 1998   Ungku Sulaiman Abdul Majid & Ungku Ahmah(d) Othman ..... TM site in Johore Bahru Your letter dated 29 August 1998 in respect of the above is referred. The following are our explanations: The land of 2e 1r 9p on lot 2962 is a federal reserved land under Article 166(4) of the Malaysian Constitution that is leased to Telekom Malaysia. The land is under the control of and is used by the Federal Government for federal purposes as stated in the Constitution. The land under lot no. 8261 Grant no. 29440 is owned by the Persuruhjaya Tanah Persekutuan (PTP)[e] pursuant to a transfer by the State Government for a premium payment of an unknown sum to the State Government. Sekian, terima kasih ....          sgd IDRIS MUSTAFFA

25. Both the applicants deposed that they were advised by their counsel, Mr Teh Poh Teik, and they verily believed that the acquisition of the said property by the State Government under s 54 of the Land Enactment (No 1) was without basis and not valid in law. It was deposed that the State Government was not vested with the power under s 54 of the Land Enactment (No 1) to acquire the said property without the knowledge of the registered proprietor and the beneficiaries thereto. Both the applicants then deposed that they now claimed from the State Government of Johore for the return of the said property; and in the event that this could not be done, the applicants claimed from the State Government of Johore compensation and/or damages to be accorded to them together with the other beneficiaries whose rights have been denied.

26. The applicants admitted that there was delay in their claim against the Government and they elaborated further. They said that since the Government had acquired the said property, no action was initiated for the return of the said property because at the material time the immediate beneficiaries did not know who held the land title to the said property upon the death of Ungku Abdullah. Both the applicants further deposed that they verily believed that the beneficiaries were financially ill disposed and were reluctant to obtain probate on Ungku Abdullah's assets. Of crucial importance, it was deposed that at that time almost everyone was afraid of His Royal Highness Sultan lbrahim lbni Sultan Abu Bakar. Members of the royal family who had received pensions from the royal coffers were afraid that His Royal Highness Sultan lbrahim lbni Sultan Abu Bakar would revoke their royal pensions that were due to them. It was deposed and it was common knowledge that members of the royal family were on several occasions threatened that their royal pensions which they received would be revoked if they were to do anything that would incur the wrath of His Royal Highness. Such was the fear that was felt by members of the royal family.

27. It was further deposed that since 1971, the beneficiaries had engaged the services of lawyers to advance their claim against the respondents but unfortunately no positive steps were undertaken by the lawyers in this direction.

    • The first letter was dated October 31, 1971 and it was from Messrs Hassan Yunos & Co addressed to the Director of Lands And Mines, Johore Bahru.

    • The second letter was from Messrs Shafie & Mohan dated August 23, 1994 and it was jointly addressed to the Johore State Secretary and to the Director of Lands and Mines, Johore Bahru.

      The response from the office of the Director of Lands and Mines, Johore Bahru to Messrs Shafie & Mohan was by a letter dated September 23, 1994 and it simply said that the matter had been referred to the State Legal Adviser of Johore.

    • The third letter was from Messrs Lim & Hooi and it was addressed to the State Legal Adviser and it was dated January 23, 1998.

    • The fourth letter was also from Messrs Lim & Hooi and it was dated February 26, 1998, which was specifically addressed to the Director of Lands And Mines, Johore Bahru.

28. Finally, the applicants deposed that they sincerely believed that they together with the other beneficiaries were entitled to receive compensation and/or damages in regard to the said property and for these reasons both of them craved for order in terms of their application in Encl 3 as amended in Encl 6.

    Enclosure 7: Respondents' Affidavit Opposing the Motion

29. Shubanah Yusuf ("Shubanah"), an Assistant Director of Lands And Mines, State of Johore responded by way of an affidavit in Encl 7 and there (at paragraphs 4 and 5 of Encl 7) she categorically stated and she verily believed that the said property had been charged by the late Ungku Abdullah to a chettiar in 1890 and the said property had been redeemed by Messrs Peterson Simmon & Co on behalf of the Johore State Government for the sum of $8,000 in 1895 after the death of Ungku Abdullah. Shubanah deposed that since 1895, the land title to the said property was kept by the State Government of Johore until a lawyer from Messrs Rodyk and Davidson alluded to the fact that in 1908 the said property had become the ownership of the Government since more than 12 years had lapsed wherein the said property was held by the Government without any claim by anyone.

30. Shubanah referred to the minutes written by A Glencross, the then Commissioner of Lands and Mines, Johore dated December 27, 1953 which was exhibited as Exh "SY-1 " to support her averments and that minutes were worded in this way:

    Exh "SY-1"

    Ref: CLM. 18/32 (Conf.) Malay Grant No. 158 This is a very old matter indeed. The land (Malay Grant 158) was alienated to Ungku Abdullah lbrahim in 1877. It has been in the possession of (the) Government since 1895. How it came into the possession of (the) Government is set out in the following minute in S.S3898/31:- Dato Private Secretary,[f] Saya bahru dapat dari Pejabat Tanah Grant Tanah itu No. 158 dan lain-lain kertas yang berkenaan tersimpan dalam sebuah peti besi lama di-pejabat itu, bersama ini saya kirim-kan kertas2 itu dalam suatu sampol bagi lihatan Dato. Grant yang tersebot itu nampak-nya sudah tergadai oleh Almarhom Ungku Abdullah kepada saorang Cheti dalam tahon 1890 dan ditebus oleh Peterson Simmon & Co. bagi pehak Kerajaan Johore dengan membayar $8,000 dalam tahon 1895 kemdian daripada telah mangkat Almarhom Ungku Abdullah itu. Semenjak dari itu tertinggal-lah Grant itu dalam simpanan Kerajaan dan dalam tahon 1908 barang kali dengan sebab ada sebarang tentutan lawyer Rodyk dan Davidson menyatakan yang tanah itu terserahjadi hak dan milek Kerajaan kerana telah lebeh dari pada 12 tahon dalam pegangan-nya dan tiada boleh di-tuntut oleh siapa2 lagi. Pada masa ini sekarang sudah jadi 37 tahon lama-nya. Sunggoh pon dernkian itu barang kali juga Dato suka hendak berdatang sumbah kalau2 ada lempah ahsan kebawah Duli Yang Maha Mulia di-atas anak2 Almarhom Ungku Abdullah yang bermohon ini. Ind/-M.S. State Secretary 12.1.32. The Legal Adviser at that time was consulted and on 21.1.32 gave his opinion that 'the heirs have no claim in law or equity and can only be granted anything as an act of grace.' The matter went before Executive Council and the claim was rejected. The matter was brought up again in 1933 and again went to Executive Council. The claim was again rejected. In 1949 the claim was brought up again by various grandchildren of Ungku Abdullah and you replied that this matter had been settled long ago and nothing could now be done about it. In 1950 when it was decided to site the Telecoms building here. Mr. Cunyngham-Brown endorsed on the Malay Grant as follows:- This is now State land under Section 54 of the Land Enactment vide CLM 18/1932. No formal enquiry appears to have been held when this was done. The new Telecoms building is going up on this site. I think that the applicants should be told that this matter was decided more than 30 years ago and cannot now be reopened but I suggest you consult the Legal Adviser as to this before referring to Executive Council. I attach my paper CL&M.Conf. 18/32 under confidential cover should it be wanted for reference by the Legal Adviser. sgd. (A. Glencross) Commissioner of Lands & Mines, Johore. 27 December, 1953.

31. The minutes of A Glencross revealed that the said property had become State land under s 54 of the Land Enactment (No 1) without any formal enquiry being held. It also revealed that the Telecoms building was being built on the said property at that time. The then State Legal Adviser of Johore was consulted and on January 21, 1932 gave his opinion that "the heirs have no claim in law or equity" to the said property. Without a doubt, the minutes of A Glencross were a damper to the applicants. Everything seemed to be a forgone conclusion. But was this so? I will not venture an answer at this point of time and I shall continue narrating the facts through the affidavit in reply of Shubanah.

32. She reiterated and laid stress on the minutes of A Glencross and it was her stand that the said property was acquired by the Johore State Government in 1932 after the Johore State Government had redeemed the property on the order of His Royal Highness the Sultan and thereafter the property together with the building thereto were vested in the Johore State Government. She focussed her attention to and referred to the minutes found in Exh "SY-2". The minutes were written by several personalities and it would be ideal to reproduce them verbatim in this judgment, and I will now do so:

    Exh "SY-2"

    ss. I recommend @ at encl: 25 & attach a sureprint of the area in question. 2. It comprises the whole of Malay Gt 158 Johor Bahru Town, which was acquired by Govt in 1932, the original owner Ungku Abdullah having died whilst the land remained charged to a chettiar. Govt redeemed the charge on H.H's order and both land and buildings now vest in the State. Sd. SSH (Cunnyngham-Brown) CL&M 3/11   RCS. 402/46 returned on ... 4-X1-50 29/11 20/12 31/12 Copied from RCS 402/46 (15) Executive Council 20.12.1950 Initial. Raja H. Omar 23.12.50   CL&M: Please Note (34) ss. Noted. Thank you. Sgd. M. Yusof for CL&M 3/1/51 RCS 402/46 & 55.651/49 attch Encld. 3/1/51

    Illegible: Please note Sgd for (illegible) Commissioner of Lands & Mines 3/1/51   Recd: 3/5/51 Sgd (illegible) CL&M Noted Thank you. Sgd. for (Collector of Land Revenue) 4/1/51 Ltr from CLR JB CLR JB - Re - (8) Yes Please proceed under sec 10 of L.E. Sgd for Commissioner of Lands & Mines 15/1/51 CLM: See thank you. 2. I shall take the necessary action. Sgd. Abdullah for CLM 15/1/51 (9) From CLR JB 17-3/51   (9A) D/E.N/ CS: Please check the particulars. Sgd. CL&M Johore 10/4

33. The minutes alluded to s 10 of the Land Enactment (No 1) and that section enacts as follows:

    The Commissioner may from time to time reserve, by notification in the Gazette, any State lands which in his opinion are required for any public purpose or for a residential reserve. Such notification shall fully describe the land, the public or other purpose, and the terms on which it is reserved, and shall be published in two consecutive issues of the Gazette.

    and it relates to a reservation of a State land by way of a notification in the Gazette; and it refers to the said property as a State land. Was this really so?

34. She verily believed and it was part and parcel of her case that on the strength of the relevant law at that material time - referring to the 1890 legal position, the redemption of the said property by the Johore State Government for the sum of $8,000 to the chettiar on the order of His Royal Highness could result in the said property being vested in the name of the Johore State Government. By way of an example she exhibited an endorsement found in "Grant No 7 Bandar Johore Bahru" as seen in Exh "SY-2A" which was worded as follows:

    Exh "SY-2A"

    Vide Manuscript Document dated 10th of June 1893 Registered No: 183 on the 6th of Muharram A.H. 1311 in which there is a declaration by Dato Andak Heng that the land had become vested in H.H. Sultan Abubakar in consideration of the latter paying his debt of which the said land formed part of the security and that he had no more claim whatever to the said land.

    and she used that example as a leverage to emphasise her point that the said property had been vested in the Johore State Government on the order of His Royal Highness the Sultan of Johore. I must at once respond and say that that example merely served as a mere example and nothing else because it related to a different property entirely.

35. Shubanah deposed further at paragraph 6 and she verily believed that the Johore State Government as a party having an interest on the said property had utilised s 54 of the Land Enactment (No 1) by applying to the Commissioner of Lands And Mines Johore for an order that the register be rectified and an endorsement be made for the said property to be acquired by the Johore State Government. In pursuance of that application she deposed further at paragraph 7 to the effect that the Commissioner of Lands And Mines Johore had made an endorsement on the register document of title on October 24, 1950 which showed that the said property had become State land under s 54 of the Land Enactment (No 1) as reflected in file number CLM 18/32. The register document of title of the said property in the jawi script was exhibited as Exh "SY-3", while the file search as per Exh "SY-4" revealed the following salient particulars:

    Exh "SY-4"

    (Duplicate) Title - Malay Grant No. 158 Plan - No. 4 Lot No. - Keping yang ke-22 Area - 6A OR. 30 Poles Locality - Township of Johore Bahru District - Johore Bahru Registered owner - Yang Mulia Ungku Abdullah, Johore Date of Ownership - Since 4 Rabil Akhir, 1297 Encumbrances - (1) Nil. (2) This title has been cancelled. Endorsement - (This is now State Land under Section 54 of the Land Enactment, vide C.L.&M 18/1932 Dated this 24th October, 1950. C.L.&M. 226/1950) Seal: C.L.&M. 24.10. Issue copy not produced. ARP 6030

36. Shubanah further deposed at paragraph 8 and she verily believed that the redemption of the said property to the tune of RM8,000 by the Johore State Government to the chettiar was at par with the value of the charge that was placed on the said property at that material time, and now it was said that it was unwise for the Johore State Government to pay any compensation or damages to the applicants or to the beneficiaries of the late Ungku Abdullah. She further deposed at paragraph 9 that the said property had been reserved by way of a gazette notification vide GN 386 dated May 10, 1951 as a "Telecom Exchange Building Maintained By The Controller Of Telecoms Johore" and such gazette notification was said to be valid in law and that the reservation of the said property for that specific purpose could not be stopped as provided for under the Federal Constitution.

37. It was deposed further by her at paragraph 10 to the effect that she verily believed that the beneficiaries of the late Ungku Abdullah knew that the said property had been redeemed and acquired by the Government and that the beneficiaries of the late Ungku Abdullah had made a claim on the said property as early as 1908 and all their claims were unsuccessful. She deposed that legal proceedings should have been instituted as early as 1908. Interestingly she enclosed a letter from the Director of Lands And Mines Johore which was addressed to Ungku lbrahim Ungku Ahmad and that letter marked as Exh "SY-5" was worded in this fashion:[g]

    Exh "SY-5"

    The Director of Lands & Mines, Johore ..... 15 July 1975 ..... Yang Mulia, Ungku lbrahim Ungku Ahmad, ......   YM Ungku, RE: Division of Estate Property With reference to Ungku's letter dated 9.4.1975  ..... I am directed to inform that after careful investigation it was discovered that no actions may be taken in respect of the matter Ungku raised. According to the record in this office, in the year 1890 Silah Ungku Abdullah charged the land held under M.G.158 to a chettiar and on 23.3.1893 he passed away. In 1895 the Government redeemed the charge and took over the said property. In 1908 a claim was made to the Government on the said land and was rejected for the reason that more than 12 years had passed as allowed under the Limitation Ordinance. Similar claims were raised again in 1932, 1933, 1949 dan 1950 with the same result i.e. rejected. Therefore it is upto to Ungku and beneficiaries to take any actions which may resolve the above matter.            sgd. (Fadzil Mohd. Noor)

38. In serious vein, Shubanah deposed at paragraph 11 that she verily believed that the whole episode took place more than 100 years ago and that it was highly improper that the petition for a letter of administration dated June 26, 1996 wherein the Johore Bahru High Court had appointed the applicants as the co-administrators of the estate of the late Ungku Abdullah could be used as a basis to advance the claim for the return of the said property which had previously changed ownership according to the law and the rule that were in existence then. For these reasons, Shubanah

    • deposed that the claims of the applicants were unjustifiable and it would cause an injustice to the respondents since the latter had lost whatever proof and evidence to rebut the claims of both the applicants; and that whatever cause of action that might have existed, if any, should have been taken within a reasonable period of time and

    • prayed that the notice of motion (as amended) be dismissed with costs.

    Enclosure 8: Applicants' Reply to Respondents' Opposition

39. I must now proceed to examine the affidavit in rebuttal of the applicants as seen in Encl 8. By way of introduction the applicants deposed that the facts alluded were the truth based on the documents or the records that were given or obtained by them unless otherwise stated. They deposed once again that they were the co-administrators of the estate of the late Ungku Abdullah. They then focussed their attention on Shubanah's affidavit as seen in Encl 7.

40. They deposed that in relation to Shubanah's averments in paragraphs 4 and 5 of Encl 7,

    • the Johore State Government at that time had no power to redeem the said property without the consent of the registered proprietor and/or the consent of the beneficiaries;

    • without any instruction and/or consent, the redemption of the said property was wrong and invalid because the said property was owned by an individual;

    • since the said property was taken or redeemed in an unlawful manner, it followed that ownership of the said property could not vest in the Johore State Government notwithstanding that it was by order of His Majesty the Sultan.

41. In relation to paragraphs 6 and 7 the applicants deposed that the respondents wrongly relied on the provisions of s 54 of the Land Enactment, 1935 (Enactment No 1) because that section was in relation to rectification of an entry in the register and not in relation to registration of ownership.

42. In regard to paragraph 8 of Shubanah's affidavit, the applicants deposed that there was no consent of the registered proprietor and/or the beneficiaries to redeem the said property at the price of RM8,000.

43. In regard to paragraph 9 both the applicants averred that the gazette notification vide GN 386 dated May 10, 1951 which showed that the said property had been acquired by the Johore State Government was in reality invalid under the law as the procedures enumerated in the Land Enactment (No 1) were not complied with.

44. The applicants in responding to paragraphs 10 and 11 categorically stated that their claims as co-administrators of the estate of the late Ungku Abdullah were not governed by the limitation period and such period had not expired at all.

45. For the aforesaid reasons, both the applicants prayed for order in terms of the prayers in the notice of motion in Encl 3 as amended by Encl 6.

    The Undisputed Facts

46. This was indeed an interesting case and I have set out, at great length, the facts in the relevant affidavits in order to piece together as a coherent whole the factual matrix of the present case. It would be correct to say that everything revolved on the said property and that property played a pivotal role in this interesting episode. The following facts were not disputed by the parties:

    1. Both the applicants were the co-administrators of the estate of the late Ungku Abdullah by way of a letter of administration that was extracted on January 13, 1998 even though it was dated June 26, 1996.

    2. The estate of the late Ungku Abdullah comprised the property in question and on that property stood a building belonging to the Telecommunications department.

    3. According to the minutes of A GIencross, the then Commissioner of Lands and Mines, Johore (see Exh "SY-1"), the said property had a chequered history. That property was charged to a chettiar in 1890 by the late Ungku Abdullah and the same property was redeemed on behalf of the Johore State Government by Messrs Peterson Simmon & Co in 1895.

       The chettiar was a registered chargee and his position, once upon a time, in relation to the said property was indeed strong. By way of an analogy reference should be made to the case of Bank Bumiputra Malaysia Bhd v Mahmud Haji Mohamed Din [1989] 1 MLJ 381, where the supremacy of a registered chargee was emphasised by Peh Swee Chin J (as he then was) and at p 382 of the report this was what His Lordship said:

       It was only too obvious to the court that the ground of the intervener's claim was one of priority over the charge in question as registered on the title which she had agreed to purchase by the sale agreement because she had bought the land long before the charge was registered, in other words, qui prior est tempore potior est jure, ie he who is earlier in time is stronger in law. Here, the chargee, being a registered chargee, had attained, as regards its registered interest, an indefeasible title against the world save for a few exceptions set out in s 340 of the National Land Code such as fraud, misrepresentation etc to which the chargee was a party or privy, and which did not apply to the facts of the instant case. When the exceptions in the said s 340 do not apply as they did not apply to the instant case, the supervening title would defeat a prior equitable right or interest: Ong Chat Pang v Valliappa Chettiar [1971] 1 MLJ 224. The chargee, to quote a familiar expression, had therefore succeeded in the scramble to get on the register and had therefore emerged victorious.

       Again by way of an analogy, reference should also be made to the case of Perwira Habib Bank Malaysia Bhd v Oon Seng Development Sdn Bhd [1990] 1 MLJ 447. That was a case where the plaintiff chargee successfully applied for an order of sale of the charged land. Three of the defendants sought to oppose the order on the basis that as they had purchased part of the land, the order should not apply to their lands. However, Mohamed Dzaiddin J (now the Chief Justice of the Federal Court of Malaysia) held that there were no grounds to deny the application for an order of sale and this was what His Lordship said (see p 448 of the report):

       First, as bona fide purchasers for value, their interest cannot prevail over that of the plaintiffs, the registered chargee. Unless fraud is an issue (which it is not so here) and could be proved, the charge which has been legally registered becomes indefeasible (Tai Lee Finance Co Sdn Bhd v Official Assignee [1983] 1 MLJ 81). Secondly, as the purchase agreement, in particular of the third defendant, contained an express condition that the lot was sold subject to an existing charge in favour of the plaintiffs, the interest of the purchaser who had expressly consented to the creation of the said charge cannot override the registered interest of the plaintiffs as chargee.

       Continuing in a sympathetic mood. His Lordship Mohamed Dzaiddin J (now Chief Justice of the Federal Court of Malaysia) said at the same page in the last paragraph:

       In the light of the above, there is nothing this court can do except to sympathize with the predicament faced by these purchasers. Perhaps, the remedy available would be for these defendants to sue the first defendants for damages for breach of contract, ie the sale and purchase agreement.

       But in the context of the present case, the chettiar as a registered chargee no longer had an interest on the said property as redemption was effected in 1895.

    4. The late Ungku Abdullah died on March 23, 1893.

    5. The strong personality of His Royal Highness Sultan lbrahim lbni Sultan Abu Bakar viewed from the perspective of His Royal Highness's subjects.

       This was never challenged by Shubanah in her affidavit-in-reply in Encl 7 and consequently the rigours of the law as alluded to in Abdul Razak Ahmad v Majlis Bandaraya Johore Bahru [1995] 2 AMR 1174 must be brought to bear upon the respondents.

    6. The said property was acquired by the Johore State Government under s 54 of the Land Enactment (No 1) and no formal enquiry was held when this was done.

    7. The said property by virtue of the gazette notification GN 386 dated May 10, 1951 was reserved for "Telecom Exchange Building Maintained by the Controller of Telecoms Johore."

    THE ISSUES

47. Three main issues were argued at great length by the parties. I must put on record my gratitude to both learned counsel who have endeavoured to submit on all the relevant and pertinent points in regard to the notice of motion in Encl 3 as amended by Encl 6. Miss Mary Jesmal Periera of counsel for the applicants and Mr Abdul Rasid Sudin, the Assistant to the State Legal Adviser, Johore, for both the respondents performed extremely well at the bar and they deserved to be commended in this judgment. The three main issues that were ventilated may compendiously be framed in these words:

    1. Whether the Johore State Government could redeem the said property through Messrs Peterson Simmon & Co without the prior consent and instructions of the beneficiaries of the late Ungku Abdullah and whether such redemption was in accordance with the - law and/or valid in law?