In a clear reversal to its 2000 judgment, the Federal Court ruled today(21-1-2010) that its decision on the controversial Adorna Properties Sdn Bhd vs Boonsom Boonyanit case nine years ago was erroneous.
A five-member panel led by Chief Justice Zaki Azmi unanimously departed from the court's previous judgment made by a three-member panel headed by former chief justice Eusoff Chin.The others were Court of Appeal president Alauddin Mohd Sheriff, Chief Judge of Malaya Arifin Zakaria and Federal Court judges Zulkefli Ahmad Makinudin and James Foong Cheng Yuen.
The declaration was made in the case of Tan Ying Hong vs Tan Sian San, Cini Timber Industries Sdn Bhd and United Malayan Banking Corporation Bhd today.
This 1985 case, quite similar to Adorna Properties, involves Sian San who had purported to possess power of attorney (PA) to secure loans of RM200,000 and RM100,000 respectively where the loans were made for Cini Timber.
However, Ying Hong who claimed he did not sign the PA, said his signature was forged and was only aware of the matter when a notice of demand was given to him following unpaid loans.
It was not disputed that Ying Hong's signature was forged and he had not charge the land.
The legal issue
The questions pertain to "whether an acquirer of a registered charge or other interest or title under the National Land Code 1965 by means of a forged instrument acquires an immediate indefeasible interest or title".
This questions relates to Adorna Properties decision made by the apex court in 2000. Indefeasible by definition means it was not liable to being annulled or voided or undone.
Zaki said he was legally obligated to restate the law since the error committed was so obvious and blatant.
Following today's matter, Arifin allowed Ying Hong's appeal and allowed his application of declaration that the said charges are void and ordered the bank to deliver the land title to him.
"It is quite a well-known fact that some unscrupulous people have been taking advantage of this error by falsely transferring titles to themselves.
"I hope that with this decision, the land authorities will be extra cautious when registering transfers."
Meanwhile, the Chief Judge of Malaya Justice Arifin (right), in his 28-page judgment in answering the posed question in the negative, said the court holds the Federal Court decision in the Adorna Properties was misconstrued.
"It misconstrued Section 340 (1) (2) and (3) of the National Land Code and came to the erroneous conclusion that the proviso appearing in sub section (3) equally applies to subsection 2. (Note see the details of the section of NLC at the end of article)
"By equally so doing the Federal Court gave recognition to the concept of "immediate indefeasibility" under the Code which we think is contrary to the provision of section 340.
"It is interesting to note the learned representatives of UMBC and the attorney-general agreed that the Adorna Properties was wrongly decided."
As a result of this decision, landowners could now heave a sigh of relief that the transfer of land by fraudulent means would no longer be legally accepted.
The panel had deliberated on whether an acquirer of a registered charge or other interest or title under the National Land Code 1965 by means of a forged instrument acquires an immediate indefeasible interest or title.
Adorna Properties Sdn Bhd vs Boonsom Boonyanit case
The case was brought to court by Boonsom Boonyanit, who was residing in Thailand and owned two plots of land in Tanjung Bungah in Penang.
In 1988, a woman who claimed to be Mrs Boonsoom Boonyanit made a statutory declaration that she had lost the original titles to the two plots.
She was able to get the Land Office to issue her a certified copy of the title and the impostor sold the land to Adorna Properties for RM12 million.
On discovering that his land was sold without his knowledge, Boonyanit sued Adorna Properties.
Bravo, justice return.....a wrong judgment make right. But as a layman, I was wonder how learned Judges can make a wrong judgment, is there any right of compensation for the victim of the wrong judgment?........a long time ah?...
If S340 of NLC open to dispute and different understanding, why don't amendment make to make the law clearer and fair to the people?....
By the way I am an ordinary citizen, not a lawyer; but the said section of NLC have been open to different interpretation and understanding even to lawyers. It is unfair to the victim of fraud land transaction, on the uncertainty, the concern has been raised by past incidents. It is actually a concern even to an ordinary citizen, not only lawyers.
Note;
S340(1) stated that " 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 subsection(2), (3), (4) be indefeasible.
S340(2): The title or interest of any such person or body shall not be indefeasible if
(a) in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or
(b) where registration was obtained by forgery, or by means of an insufficient or void instrument; or
(c) where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law.
S340(3): Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in sub section(2)
(a) it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred; and
(b) any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested;
provided that nothing in this sub section shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration,or by any person or body claiming through or under such a purchaser.
Reference:
1. Federal Court says ex-CJ wrong on land title, Malaysiakini dated 21-1-2010
Showing posts with label Law. Show all posts
Showing posts with label Law. Show all posts
Saturday, January 23, 2010
Native Customary Rights (NCR) land
Native Customary Rights (NCR) land
The Dayak community wants the Sarawak government to end “injustices” against them. About 150 Dayak professionals from the Iban, Bidayuh and Orang Ulu communities agreed that state policies “by design or otherwise will result in Dayaks gradually and eventually to be dispossessed” of native customary rights (NCR) lands.
In particular, they referred to the policy to freeze the survey of NCR land and issuance of native titles, as well as amendment of the Sarawak Land Code to place the burden of proving customary rights on landowners. State government considers all NCR land which has not been surveyed as 'state land'. The Land and Survey Department has failed to survey more than 90% of the state's NCR land, in 46 years of independence.
The Sarawak government's unpopular 'Konsep Baru' or 'New Concept' of land development, which encourages private companies to set up vast oil palm plantations on native people's lands, has been dealt a blow by a landmark High Court decision today(21-1-2010).The High Court of Sabah and Sarawak declared victory to rural Iban farmers from Rumah Madel, in Sebauh, 30km from Bintulu, in a land rights suit filed against Ladang Sawit Bintulu Sdn Bhd Tabung Haji (a major share-owner in the oil palm plantation) and the Sarawak government.
Tabung Haji, a federal investment fund, will also face questions over its involvement in the Sebauh plantation. Local people say the plantation has destroyed their land, rubber and other crops, fruit trees and water supplies. The adverse publicity has made it tricky, to say the least, for the fund to argue that it supports ethical investments.
The Sarawak government's 'Konsep Baru' promises NCR landowners a 30 percent share in 'joint development' of a given oil palm plantation, with a 60 percent going to a private company and 10% going to the state. The state says the land will be returned to the NCR owners after 60 years. The government argues this brings development to what it calls 'idle land'.
This latest judgment supports the legal rights of natives to their NCR land, as affirmed by the Madeli Salleh Federal Court and Nor Nyawai decisions.
What is Native Customary Land (NCL) means:
Land in which native customary rights, whether communal or otherwise, have lawfully been created prior to the 1st day of January 1958 and still subsist as such; land from time to time comprised in a reserve to which section 6 applies; and Interior Area Land upon which native customary rights have been lawfully created pursuant to a permit under section 10.
The Sarawak Land Code 1958 is based on a Torrens registration system which only recognises registered interests in land. The person claiming ownership or interest must have a document of title in the form of a grant, lease or other document as evidence of title or interests. There is, however, a provision for the creation of Native Customary Land under Section 5(2) which is limited to six specific methods; namely:
1. the felling of virgin jungle and the occupation of the land thereby cleared;
2. the planting of land with fruits;
3. the occupation of cultivated land;
4. the use of land for a burial ground or shrine;
5. the use of land for rights of way; and
6. by any lawful method (deleted in 2000).
Under definition, the area of land claimed as NCL usually has no title. But a native can apply for a title from the Lands and Surveys under section 18(1) of the Code
“18. (1) Where the Superintendent is satisfied that a native has occupied and used any area of unalienated State land in accordance with rights acquired by customary tenure amounting to ownership of the land for residential or agricultural purposes, he may, subject to section 18A, issue to the native a grant in perpetuity of that area of land free of premium rent and other charges.”
A native is deemed in law a “licensee” if title not issued out. This is provided for under the proviso (i) to section 5 of the Code which states:
“(i) until a document of title has been issued in respect thereof, such land shall continue to be State land and any native lawfully in occupation thereof shall be deemed to hold by licence from the Government and shall not be required to pay any rent in respect thereof unless and until a document of title is issued to him.”
Although the law recognizes NCR claim by customary tenure, it throws the onus or burden on the natives to prove their claim.
The Government’s definition and/or understanding of NCR claim is only restricted to cultivated area or farmed area locally referred to as “temuda” which must have been cultivated or farmed before 1st January 1958. On the other hand, the natives believe that their NCR claim goes beyond their “temuda”. It includes their communal lands or territorial domain locally referred to as “pemakai menua” and the “reserved virgin forests” within their “pemakai menua” locally referred to as “pulau”.
Customary law is a practice by habit of the people and not the dictate of the written law. All orders dating from the era of Rajah Brooke to current legislation declare in no uncertain terms the right of a native to clear virgin jungle, access the land surrounding the longhouse for cultivation, fishing, hunting and collection of jungle produce. Legislation has neither abolished nor extinguished NCR. On the contrary, legislation has consistently recognized and honoured NCR even though it was not in written form.
Definition of "Native"
This list can be compared with the definition of "Native" in the Federal Constitution of Malaysia The Constitution of Malaysia, comprising 181 articles, is the supreme law of Malaysia. Refer for the full text. It is formally known as the Federal Constitution of Malaysia. , Art. 161A (6a) and (7) which reads as follows:
(6) (a) in relation to Sarawak, a person who is a citizen and either belongs to one of the races specified in clause (7) as indigenous to the State or is of mixed blood deriving exclusively from those races; and
(7) The races to be treated for the purposes of the definition of "natives" in clause (6) as indigenous to Sarawak are the Bukitans, Bisayahs, Dusuns, Sea Dayak, Kadayans, Kelabits, Kayan, Kenyahs (inicuding Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits.
Nowhere is this more clearly illustrated than in the case of the "Muslim Native". Both lists above give "Malay" as a Native but the Malays are Muslim. Until recently their affairs were determined by the Undang2 Mahkamah Melayu Sarawak (laws of the Sarawak Malay Court) in which a simplified version of Syariah plus Malay adat was the operative law (see Hooker 1984: Chapter 4). This was a separate jurisdiction from the (non-Muslim) Native Courts, and Native law did not apply. This position has been maintained in the new Islamic laws Now. Islamic law - the code of law derived from the Koran and from the teachings and example of Mohammed; "sharia is only applicable to Muslims"; "under Islamic law there is no separation of church and state". Under shariah law administration, all Muslim property matters are determined by Syariah. Native laws do not apply to Muslims.
There are now still cases on similar to Rumah Madel are still pending.
Other land transaction
There is another special category type of land, Malay Reserve Land(MRL), which is equally important in the NLC(National Land Code) or Land Law in Malaysia. But normally MRL are well protected and codified in the law, unlike the native land in East Malaysia, which open to abuses and legal dispute.
Land transaction are main source of abuses and corruption; especially alienation of state land to a newly formed company or small capitalized company which are normally owned by connected person(politically or otherwise). The state land will alienated to the company( may be proxy company or dummy company) with lower valuation(under agricultural or vacant land) ; the said company will sell the land or contract with a developer to develop the land under development land pricing. A large sum of money will be leaked out even before the land is developed. This land transaction will involve alienation(when titles may not be issued yet), just a normal contract with no land titles involved, land conversion, surveying, planning approval. All these transaction are opportunity for corruption and abuses. If it is low cost housing development, there will be opening for more abuses.
It is same as plantation land, quarry or mining land, forestry; it is high time to avoid the making of instant millionaires just because of politically linked. Remember land matter is state matter. Land matter involve big money.....
The revamp of the whole system, the government machinery involved with land transaction ......???? we need people with high integrity and courage .....so that the innocent land owner will be protected, and connected person will not be deal more fairly than others, and the state treasury will be richer to implement people benefited projects.....
The Dayak community wants the Sarawak government to end “injustices” against them. About 150 Dayak professionals from the Iban, Bidayuh and Orang Ulu communities agreed that state policies “by design or otherwise will result in Dayaks gradually and eventually to be dispossessed” of native customary rights (NCR) lands.
In particular, they referred to the policy to freeze the survey of NCR land and issuance of native titles, as well as amendment of the Sarawak Land Code to place the burden of proving customary rights on landowners. State government considers all NCR land which has not been surveyed as 'state land'. The Land and Survey Department has failed to survey more than 90% of the state's NCR land, in 46 years of independence.
The Sarawak government's unpopular 'Konsep Baru' or 'New Concept' of land development, which encourages private companies to set up vast oil palm plantations on native people's lands, has been dealt a blow by a landmark High Court decision today(21-1-2010).The High Court of Sabah and Sarawak declared victory to rural Iban farmers from Rumah Madel, in Sebauh, 30km from Bintulu, in a land rights suit filed against Ladang Sawit Bintulu Sdn Bhd Tabung Haji (a major share-owner in the oil palm plantation) and the Sarawak government.
Tabung Haji, a federal investment fund, will also face questions over its involvement in the Sebauh plantation. Local people say the plantation has destroyed their land, rubber and other crops, fruit trees and water supplies. The adverse publicity has made it tricky, to say the least, for the fund to argue that it supports ethical investments.
The Sarawak government's 'Konsep Baru' promises NCR landowners a 30 percent share in 'joint development' of a given oil palm plantation, with a 60 percent going to a private company and 10% going to the state. The state says the land will be returned to the NCR owners after 60 years. The government argues this brings development to what it calls 'idle land'.
This latest judgment supports the legal rights of natives to their NCR land, as affirmed by the Madeli Salleh Federal Court and Nor Nyawai decisions.
What is Native Customary Land (NCL) means:
Land in which native customary rights, whether communal or otherwise, have lawfully been created prior to the 1st day of January 1958 and still subsist as such; land from time to time comprised in a reserve to which section 6 applies; and Interior Area Land upon which native customary rights have been lawfully created pursuant to a permit under section 10.
The Sarawak Land Code 1958 is based on a Torrens registration system which only recognises registered interests in land. The person claiming ownership or interest must have a document of title in the form of a grant, lease or other document as evidence of title or interests. There is, however, a provision for the creation of Native Customary Land under Section 5(2) which is limited to six specific methods; namely:
1. the felling of virgin jungle and the occupation of the land thereby cleared;
2. the planting of land with fruits;
3. the occupation of cultivated land;
4. the use of land for a burial ground or shrine;
5. the use of land for rights of way; and
6. by any lawful method (deleted in 2000).
Under definition, the area of land claimed as NCL usually has no title. But a native can apply for a title from the Lands and Surveys under section 18(1) of the Code
“18. (1) Where the Superintendent is satisfied that a native has occupied and used any area of unalienated State land in accordance with rights acquired by customary tenure amounting to ownership of the land for residential or agricultural purposes, he may, subject to section 18A, issue to the native a grant in perpetuity of that area of land free of premium rent and other charges.”
A native is deemed in law a “licensee” if title not issued out. This is provided for under the proviso (i) to section 5 of the Code which states:
“(i) until a document of title has been issued in respect thereof, such land shall continue to be State land and any native lawfully in occupation thereof shall be deemed to hold by licence from the Government and shall not be required to pay any rent in respect thereof unless and until a document of title is issued to him.”
Although the law recognizes NCR claim by customary tenure, it throws the onus or burden on the natives to prove their claim.
The Government’s definition and/or understanding of NCR claim is only restricted to cultivated area or farmed area locally referred to as “temuda” which must have been cultivated or farmed before 1st January 1958. On the other hand, the natives believe that their NCR claim goes beyond their “temuda”. It includes their communal lands or territorial domain locally referred to as “pemakai menua” and the “reserved virgin forests” within their “pemakai menua” locally referred to as “pulau”.
Customary law is a practice by habit of the people and not the dictate of the written law. All orders dating from the era of Rajah Brooke to current legislation declare in no uncertain terms the right of a native to clear virgin jungle, access the land surrounding the longhouse for cultivation, fishing, hunting and collection of jungle produce. Legislation has neither abolished nor extinguished NCR. On the contrary, legislation has consistently recognized and honoured NCR even though it was not in written form.
Definition of "Native"
This list can be compared with the definition of "Native" in the Federal Constitution of Malaysia The Constitution of Malaysia, comprising 181 articles, is the supreme law of Malaysia. Refer for the full text. It is formally known as the Federal Constitution of Malaysia. , Art. 161A (6a) and (7) which reads as follows:
(6) (a) in relation to Sarawak, a person who is a citizen and either belongs to one of the races specified in clause (7) as indigenous to the State or is of mixed blood deriving exclusively from those races; and
(7) The races to be treated for the purposes of the definition of "natives" in clause (6) as indigenous to Sarawak are the Bukitans, Bisayahs, Dusuns, Sea Dayak, Kadayans, Kelabits, Kayan, Kenyahs (inicuding Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits.
Nowhere is this more clearly illustrated than in the case of the "Muslim Native". Both lists above give "Malay" as a Native but the Malays are Muslim. Until recently their affairs were determined by the Undang2 Mahkamah Melayu Sarawak (laws of the Sarawak Malay Court) in which a simplified version of Syariah plus Malay adat was the operative law (see Hooker 1984: Chapter 4). This was a separate jurisdiction from the (non-Muslim) Native Courts, and Native law did not apply. This position has been maintained in the new Islamic laws Now. Islamic law - the code of law derived from the Koran and from the teachings and example of Mohammed; "sharia is only applicable to Muslims"; "under Islamic law there is no separation of church and state". Under shariah law administration, all Muslim property matters are determined by Syariah. Native laws do not apply to Muslims.
There are now still cases on similar to Rumah Madel are still pending.
Other land transaction
There is another special category type of land, Malay Reserve Land(MRL), which is equally important in the NLC(National Land Code) or Land Law in Malaysia. But normally MRL are well protected and codified in the law, unlike the native land in East Malaysia, which open to abuses and legal dispute.
Land transaction are main source of abuses and corruption; especially alienation of state land to a newly formed company or small capitalized company which are normally owned by connected person(politically or otherwise). The state land will alienated to the company( may be proxy company or dummy company) with lower valuation(under agricultural or vacant land) ; the said company will sell the land or contract with a developer to develop the land under development land pricing. A large sum of money will be leaked out even before the land is developed. This land transaction will involve alienation(when titles may not be issued yet), just a normal contract with no land titles involved, land conversion, surveying, planning approval. All these transaction are opportunity for corruption and abuses. If it is low cost housing development, there will be opening for more abuses.
It is same as plantation land, quarry or mining land, forestry; it is high time to avoid the making of instant millionaires just because of politically linked. Remember land matter is state matter. Land matter involve big money.....
The revamp of the whole system, the government machinery involved with land transaction ......???? we need people with high integrity and courage .....so that the innocent land owner will be protected, and connected person will not be deal more fairly than others, and the state treasury will be richer to implement people benefited projects.....
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