Toh Huat Kay V Lim Ah Chang
Toh Huat Kay V Lim Ah Chang
Toh Huat Kay V Lim Ah Chang
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ANTARA
DAN
Antara
Dan
CORAM:
Augustine Paul, FCJ
Zulkefli Ahmad Makinudin, FCJ
Mohd Ghazali Mohd Yusoff, FCJ
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(ii) Whether the transfer of the land in question, after the grant of the
consent of the State Authority, from the transferor to the transferee, has
become indefeasible after registration pursuant to the provisions of
section 340 of the National Land Code 1965 read with sections 92 and
176(2) of the National Land Code 1965.
The background
2. This dispute revolves around a piece of land known as No.
H.S.(M) 1368, in Mukim 12, Daerah Barat Daya, Pulau
Pinang(hereafter referred to as the said land). At the outset,
one Toh Boon Teng was occupying the said land, which was
then State land, by virtue of a temporary occupation licence
(TOL). It seems that it was then the policy of the State
Authority that when the holder of a TOL on State land in that
area passes away, his beneficiaries can make an application
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3. Toh Boon Teng died on 17 April 1983 leaving a wife and four
children, namely -
(b) Toh Hoy Khay (the plaintiff in the originating action, who
died on 18 January 2004 during the proceedings and is now
represented by his estate);
(c) Toh Huat Khay, i.e., the appellant (the defendant in the
originating action);
Sekatan-Sekatan Kepentingan.
Tanah yang diberi milik ini tidak boleh dipindah milik dalam masa 10
tahun dari tarikh pendaftaran hakmilik dan selepas tempoh ini pindah
milik tidak dibenarkan tanpa kebenaran Pihak Berkuasa Negeri.
Tanah yang diberimilik ini tidak boleh dicagar, pajak, pajakan kecil atau
sebarang bentuk jua sekalipun tanpa kebenaran Pihak Berkuasa
Negeri.
(b) that after the period of 10 years, the said land can only be
transferred with the consent of the State Authority.
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(b) that if prayer (a) is granted, an order that the transfer of the
said land to the defendant be set aside;
(g) an order that if the defendant fails to comply with the order
granted either under paragraphs (d) or (f), that the senior
assistant registrar be given power to execute the Form 14A;
and
(h) costs.
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The only issue in this appeal is whether the transfer to the appellant is
valid. The appellant relies on the purported consent given by the
Director of Lands and Mines. So, everything turns upon whether the
Director acted lawfully in giving his consent. That depends on whether
he acted in accordance with the relevant written law, the National Land
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Now, section 109(2)(a) of the Code which applies to the subject land
provides that such land shall, upon alienation, become subject to -
In the present case, Tang Kah Choo did not apply to the State
Authority to rescind the express restriction prohibiting transfer for a
period of 10 years from the date of the alienation. Instead, she merely
applied for permission to transfer the land to the appellant. The
Director therefore had no power whatsoever to act as he did since the
repository of that power was the relevant State Authority. It follows that
the act of the Land Administrator in the registering of the transfer to the
appellant was unlawful, null and void. Consequently, the appellant
obtained a title that was defeasible in his hands.
In M & J Frozen Foods Sdn Bhd & Anor v Siland Sdn Bhd & Anor
[1994] 1 MLJ 294, Wan Yahaya SCJ quoted with approval the
following passage in the judgment of Ajaib Singh J (as he then was) in
Teh Bee v Maruthamuthu [1977] 2 MLJ 7 in relation to the nature of a
title obtained in violation of the provisions of the Code:
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l held that in the present case the alienation of the land under
qualified title to the respondent did not involve a mere
irregularity or non-compliance with the statutory procedure
relating to the method of acquiring alienation of qualified title
but that the state authority had acted ultra vires the National
Land Code and therefore the alienation of the land under
qualified title was illegal and a nullity. Consequently, the
conclusiveness of title and the indefeasibility provisions in the
Code were rendered irrelevant and inapplicable.
(1) Subject to the provisions of this section, the State Authority may
alienate land under this Act subject to such express conditions
and restrictions in interest conformable to law as it may think fit.
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(4) ...
[Emphasis added]
(1) The proprietor of any alienated land may apply to the State
Authority under this section for -
(7) Upon approval by the State Authority under this section, the Land
Administrator shall sign a memorandum in Form 7C in
accordance with the direction of the State Authority and shall
present the same, and on the memorial thereof being made, the
Registrar shall make an entry on the register and issue document
of title to the land and shall note the date thereof and the authority
therefor, and authenticate the same under his hand and seal.
[Emphasis added]
15. The evidence showed that about 6 months after TKC had
become the registered owner of the said land, by letter dated
26 March 1997 and addressed to TKC, the Director of Land
and Mines wrote as follows -
Thus, from the above letter, it can be seen that the Director of
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Land and Mines informed TKC that the State Authority had
granted its consent for the said land to be transferred to the
defendant. On the surface of it, that letter would denote that
an application was made by TKC for permission to transfer
the said land to the defendant, though in his evidence at the
trial the defendant acknowledged that he was the real
applicant.
16. Subsequent to the said letter from the Director of Land and
Mines referred to above, an indorsement was made by the
Land Administrator, Daerah Barat Daya, Pulau Pinang on the
document of title to the said land to reflect the dealing, viz., that
the said land was transferred to the defendant who had
become the registered owner on 31 March 1998. I noted that
the document of title to the said land showed that the said
restriction in interest remained endorsed on the title when the
indorsement with regards to the transfer in ownership was
made. There was nothing to show that the said restriction in
interest was struck off the document of title neither was there
an indorsement of a note of its rescission. The question that
now arises is whether such a dealing, i.e., a transfer in
ownership can be effected under the provisions of the Code
whilst the said restriction in interest still remained on the
document of title.
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17. S.5 of the Code provides that the word dealing means
any transaction with respect to alienated land effected under
the powers conferred by Division IV, and any like transaction
effected under the provisions of any previous land law, but
does not include any caveat or prohibitory order. Part 14 of the
Code deals with transfers and transfers fall within the
contemplation of the word dealing under the Code. S.214(1)
of the Code provides, inter alia, that subject to subsection (2)
any alienated land shall be capable of transfer. S.214(2)(b) of
the Code provides the power to transfer shall be exercisable in
any particular case subject to any restriction in interest to which
the land in question is for the time being subject.
18. The evidence showed that the said land was still subject to
the said restriction in interest when it was transferred to the
defendant. That being the situation, I am of the view that the
said land, due to the said restriction in interest endorsed on the
document of title pursuant to s.124(1)(b) of the Code, cannot be
transferred by TKC to the defendant unless TKC as proprietor
had, prior to the transfer, applied to the State Authority for the
striking off or the rescission of the said restriction in interest.
The defendant has not shown that such an application was
made by TKC. There was also no evidence to show that the
State Authority had directed that the said restriction in interest
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said land from TKC to the defendant who had become the
registered owner on 31 March 1998 was in breach of the said
restriction in interest. Under cross-examination, he testified that
the State Authority had given its approval for the said transfer
notwithstanding the said restriction in interest. In answer to a
question by the court, SP10 said as follows -
It can be seen clearly that the central and only issue in this case is on
what date the restriction in interest commenced. The applicant relies
on the particulars appearing on page 2 of the title which states that the
application was given the title on August 18, 1964 and if the restriction
in interest commenced on that date it therefore expired on August 17,
1979. Based on this calculation therefore the respondent would be
wrong in rejecting the application for registration.
It is not disputed that the proper registering authority under the Land
Code has the right to reject any instrument on the ground that it is unfit
for registration. Counsel for applicant argued that for purposes of
calculating the period for the operation of the restriction in interest in
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this case the question of registration is irrelevant. With respect I totally
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The cardinal principle of the statute is that the register is everything. ...
(3) The alienation of State land shall take effect upon the registration
of a register document of title thereto pursuant to the provisions
referred to sub-section (1) or (2), as the case may be; and,
notwithstanding that its alienation has been approved by the State
Authority, the land shall remain State land until that time. (emphasis
mine).
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Thus it is clear in law that for the purposes of the National Land Code
the first applicant was never the "proprietor" of the said property prior
to the date of registration. There can be no question therefore of any
property in the said land being vested in the first applicant prior to the
date of registration although the said land was approved for alienation
as stated in the letter of the Assistant Collector of Land Revenue,
Petaling Jaya, addressed to the first applicant informing him of the
approval for alienation and setting out the fees to be paid and setting
out also the express conditions and the restrictions in interest. For the
same line of argument please see also the judgment of Thomson C.J.
(as he then was) in Malayan Borneo Building Society Ltd v M
Ramachandran [1959] MLJ 182.
Looking at the second limb of section 78(3) of the Code it seems clear
to me that the restriction in interest could not have commenced before
the date of registration because the land remained State land and the
restriction could not have meant to operate on the State authority.
22. In the instant appeal, it is clear from the facts of the case
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23. With regard to the said letter from the Director of Land and
Mines, learned counsel for the defendant canvassed the
following argument in his written submission, namely -
Given the fact that the State Authority, acting within its jurisdiction,
gave its consent to the transfer, and which transfer has been duly
registered, both the High Court Judge and the Court of Appeal ought
to have correctly asked this question: what injustice has the party
complaining suffered by reason of the procedural breach? It is
respectfully submitted that the Respondent in the instant case has
suffered no injustice in this regard.
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I now turn to consider certain authorities (not cited to the court), which
appear to be of direct relevance to the question for decision.
In Wong Fatt v Chong Ng [1914] 1 FMSLR 142, the plaintiff who had
become the holder of a registered sublease of mining land sought to
eject the defendant. The primary defence raised was that the
registration of the sublease had been obtained without compliance with
certain statutory procedural requirements and that therefore the
plaintiff had no title to sue for ejectment. The Court of Appeal upheld
this defence. In his judgment, Braddell CJ said, inter alia, at p 145:
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If what had been done by the registrar had amounted only to a neglect
to observe some formality it might be that the court could see its way to
cure the irregularity, but here this cannot be said to be the case for the
presence of one or other of these documents is made, as I understand
the Regulations and the Code, essential to the right to register a
sublease derived from such documents of title.
In Chin Tai v Siow Shiow & Ors [1971] 1 MLJ 67, a Federal Court
decision, the transfer in favour of the purchaser was held by the court
to be incapable of registration unless the permission of the Collector of
Land Revenue was obtained since the title to the land contained a
restriction requiring such consent.
In Wong Kim Swee v Tham Hock Cham [1981] 2 MLJ 207, a High
Court decision, a restriction imposed on the title prohibited dealings
with the land for ten years without the written approval of the Collector
of Land Revenue. An agreement for a lease executed in breach of this
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(1) The title or interest of any person or body for the time being
registered as proprietor of any land, or in whose name any lease,
charge or easement is for the time being registered, shall, subject to
the following provisions of this section, be indefeasible.
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(2) The title or interest of any such person or body shall not be
indefeasible -
(a) ... ; or
(c) ... .
(3) ... .
(4) ... .
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referred to the said letter from the Director of Land and Mines
and submitted that the Court of Appeal misconstrued the facts
and that the defendant was in fact relying on the consent of the
State Authority. Counsel pointed out that the consent for the
transfer of the said land to the defendant was not given by the
Director of Land and Mines and that the Director merely
communicated the consent of the State Authority as can be
seen from the said letter. Counsel then argued that in the
circumstances the substratum of the judgment of the Court of
Appeal falls to the ground having as its basis erroneous facts.
Counsel
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