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[2018] MYCA 94 ENGLISH

Orang-Orang Yang Tidak Dikenali Yang Menduduki Atas Tanah Geran No. SP 1642, Portion No. 3, (Dikenali Sebagai Kampung Baru Pulau Tiga, Sungai Layar) Mukim Sungai Petani, Daerah Kuala Muda, Kedah v Dato’ Seri M Mahadevan A/L A Mahalingam
Suit Number: Civil Appeal No. K-02(IM)-2037-11/2016 

Litigation & court procedure – Notice of Application for leave of court to extend time for an order for possession of land under Order 89 of the Rules of Court 2012 and/or extension of time for an order for execution

Litigation & court procedure – Whether the respondent’s application for possession of land falls within the ambit of section 6(3) of the Limitation Act 1953 – Whether the application is an action upon judgment – Whether appellant has locus standi

Real Estate – Whether appellants have title arising from adverse possession or unlawful occupation of the land – Section 48 of the National Land Code

JUDGMENT

APPEAL

[1] This is an appeal by the Defendants (or “Appellants”) against the entire decision of the Alor Setar High Court given on 20.9.2016 which allowed the Notice of Application (“NOA” or “ Application”) of the Plaintiff (or “Respondent”) for leave to issue a writ of possession (“WP”) which the Appellants allege was out of time (encl 53).

BACKGROUND FACTS

[2] The Respondent is the registered proprietor of a piece of land known as Geran No. SP 1642, Portion No. 3, Mukim Sungai Petani, Daerah Kuala Muda, Kedah Darul Aman (“land”). The Respondent at the time of the hearing of the appeal was nearly 88 years old.

[3] The Respondent obtained judgment for an order for possession of the land under O.89 of the Rules of Court 2012 (“ROC”) on 9.11.2000, and for purposes of execution the WP was issued on 5.12.2000.

[4] It is an undisputed fact that the Appellants are squatters on the Respondent’s land.

[5] The Appellants lodged an appeal to the Court of Appeal in 2000 to set aside the order for possession but the appeal was dismissed with costs.

[6] Subsequently, the Respondent filed a summons for leave of Court to issue execution dated 15.5.2007, and was granted leave to issue a WP on 13.5.2009.

[7] According to the Respondent, the Respondent attempted to execute the WP on 14.6.2001, 27.5.2001, 13.5.2009 and 21.8.2014 but was unable to do so since the squatters (whose names are unknown) had reacted aggressively by struggling and fighting against the parties present at the time, including the Chief Registrar of the Court, the Court bailiff, police personnel from the Sungai Petani police station, private contractors, TNB representatives, and the previous lawyers for the Respondent (Respondent’s Affidavit in Support, and AR Pt B pg 28-29).

[8] On 5.6.2012, the Respondent filed an urgent summons for leave to execute the order for possession under O.89 of the ROC (encl. 48), and the order was granted on 3.7.2012 to issue a WP. The WP was issued by the Respondent on 30.7.2012.

[9] On 5.3.2015, the Appellants filed a NOA to set aside the Respondent’s WP dated 30.7.2012 (encl. 37), and an ex-parte NOA (encl. 39) in the High Court to stay the execution of the WP dated 30.7.2017. The Respondent’s WP dated 30.7.2012 was subsequently stayed and set aside by the Court order dated 25.8.2015.

[10] On 28.12.2015, the Respondent filed a NOA in encl. 53 for leave of Court to extend the time for the order for possession dated 9.11.2000 which was allowed under O.89 of the ROC, and/or extension of time for the order for execution dated 3.7.2012, leave of Court to file a Summons for Leave to Issue Execution in 7 days after the order for extension of time is granted in respect of the order dated 9.11.2000, and leave to file a new application for the writ of execution of the order for possession in 14 days after the Summons for Leave is granted (AR Vol 1 pg 23-24).

[11] The grounds for the Respondent’s application (encl. 53) are as follows:

(a) Pursuant to the order dated 9.11.2000, the Respondent has a reasonable cause of action in law and in equity against the Appellants;

(b) The Respondent’s application is intended to get back possession of the land as the Respondent intends to sell the land before any undesirable matter happens to the Respondent due to the age factor;

(c) The delay in making the Application is because of the fact that the Respondent was already 86 years old and his health is not good;

(d) If there is any delay, it is only procedural. The delay and defect can be allowed according to the discretion of the Court considering the legality and validity of the registered proprietor’s right to possession of the land;

(e) The Appellants have no right under the law to occupy the land owned by the Respondent (AR Vol 1 pg 24).

DECISION OF THE HIGH COURT

[12] On 20.9.2016, the High Court allowed the Respondent’s Application in encl. 53 with no order as to costs.

[13] Dissatisfied, the Appellants filed the present appeal to the Court of Appeal on 16.10.2016 in respect of encl. 53.

OUR DECISION

[14] On 4.7.2017, after having considered the submissions of both learned counsels, and having perused the Record of Appeal, we found no merit in this appeal to warrant our appellate intervention. Accordingly, we dismissed the appeal with costs RM5,000.00 to be paid personally by the Appellants’ solicitor to the Respondent, subject to payment of the allocator fee. We also ordered that the deposit is to go to the account for costs.

GROUNDS FOR DECISION

Whether the Respondent’s Application (encl. 53) falls within the ambit of section 6(3) of the Limitation Act 1953, and whether it is an action upon a judgment

[15] Section 6(3) of the Limitation Act 1953 provides as follows:

"(3) An action upon any judgment shall not be brought after the expiration of twelve years from the date on which the judgment became enforceable and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.” (emphasis added)

[16] The Appellants contend that pursuant to section 6(3) of the Limitation Act 1953, the Respondent’s Application (encl. 53), and the WP granted pursuant to such Application, is an "action upon any judgment" within the meaning of the said section, and hence is statutorily barred by the limitation of 12 years to enforce the order for possession which is a “judgment”. In this case, the judgment was obtained on 9.11.2000 i.e. more than 15 years before the Application was filed on 28.12.2015.

[17] With respect, we do not agree with the submissions of the Appellants on this point. We are of the view that the learned High Court Judge (“Judge”) is correct to hold that the Application for extension of time to issue the WP for the purpose of execution of the judgment is not an “action upon any judgment” as envisaged by section 6(3) of the Limitation Act 1953. Instead, it is an application for execution of the said judgment by way of a consequential proceeding i.e. by a WP.

[18] In this respect, the Judge was properly guided by the decision in Soo Chow Lai v Tan Ah Tong & Anor [2004] 7 CLJ 54 where Hishamudin Yunus J (as he then was), in regard to section 6(3) of the Limitation Act 1953 stated as follows:

‘[1] The definition of the word “action” in the Act is not a true definition because it does not begin with the words “action means” but “action includes”, and coupled with the presence of the words “any other proceeding” means that the word ’’action” in s. 6(3) of the Act has a wide meaning. Nevertheless, this court accepts the plaintiff's submission that s. 6(3) of the Act only bars an “action upon any judgment” (should there be a delay of more than 12 years) and that the interlocutory application at encl. 65 was not a fresh action but a consequential proceeding towards enforcing the 1982 judgment. (p 58 b-d)’

[19] Applying the interpretation of “action” in the above case, the Judge in the present case similarly held that the Respondent’s Application (encl. 53) is an interlocutory application, and is not a “fresh action”. Therefore, it is not subject to the limitation of 12 years.

[20] The manner of execution of a judgment is governed by O.46 of the ROC which, inter alia, provides as follows:

‘Order 46

WRITS OF EXECUTION: GENERAL

Definition (O.46, r.1)

1. In this Order, unless the context otherwise requires, "writ of execution” includes a writ of seizure and sale, a writ of possession and a writ of delivery.

When leave to issue any writ of execution is necessary (O.46, r.2)

2. (1) A writ of execution to enforce a judgment or order may not be issued without the leave of the Court in the following cases:

(a) Where six years or more have lapsed since the date of the judgment or order;

(2) Paragraph (1) is without prejudice to any written law or rule by which a person is required to obtain the leave of the Court for the issue of a writ of execution or to proceed to execution on or otherwise the enforcement of a judgment or order.

(3) Where the Court grants leave, whether under this rule or otherwise, for the issue of a writ of execution and the writ is not issued within one year after the date of the order granting such leave, the order shall cease to have effect, without prejudice, however, to the making of a fresh order.

Application for leave to issue writ (O.46, r.3)

3. (1) An application for leave to issue a writ of execution may be made ex parte by a notice of application in Form 88.

(2) Such an application shall be supported by an affidavit-

(3) The Court hearing such application may grant leave in accordance with the application or may order that any issue or question, a decision on which is necessary to determine the rights of the parties, be tried in any manner in which any question of fact or law arising in an action may be tried and, in either case, may impose such terms as to costs or otherwise as it thinks just.’

[21] From a reading of O.46 r.1, r.2(1)(a) and r.2(2) of the ROC, it is clear that a “writ of possession” (WP), is a “writ of execution”, and in order to enforce the judgment under O.89 of the ROC dated 9.11.2000, where six years or more have lapsed since the date of the judgment or order for possession, leave of the Court is required.

[22] The Judge noted that notwithstanding the previous issue of a WP on 14.6.2001, 27.5.2001, 13.5.2009 and 21.8.2014, and such WP has expired, the Court has the power to grant an extension of time to do any act. This is provided in O.3 r.5(1) of the ROC:

“Extension of time (O.3, r.5)

4. (1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these Rules or by any judgment, order or direction, to do any act it any proceedings.”

It is also clear from O. 46 r.2(3) of the ROC that where the Court has granted leave previously for the issue of a writ of execution, and if the writ is not issued within one year after the date of the order granting the leave, the order shall cease to have effect, but “without prejudice, however to the making of a fresh order”.

[23] Thus, in our view, the Judge is correct to consider the Respondent’s Application (encl. 53) as a fresh application for which the court is empowered to grant a “fresh order”. We do not think that the Judge had erred in allowing an extension of time for the execution of the WP dated 3.7.2012 under the O.89 judgment dated 9.11.2000 even though more than 15 years have passed since the date of the said judgment.

The Appellants have no locus standi

[24] From a perusal of the intitulement to the Originating Summons in this case, it is observed that the Appellants are “Orang-orang yang tidak dikenali yang menduduki atas tanah”, namely they are unknown squatters occupying the Respondent’s land. Even though this issue was not addressed by the Judge, we considered the submissions of the Respondent on the matter. We note that the deponent of the Affidavit in Reply of the Appellants to the Respondent’s Application is one Saheme Bin Hashim (“Saheme”) (AR Vol 2 pg 73-78). He averred that he is one of those “orang-orang yang tidak dikenali” occupying the land and is named as a defendant in the action. Other than his oral averment, there is no documentary evidence to prove that this deponent is a defendant in this case, or that he is legally authorized to represent all the Appellants. Therefore, on record, based on the intitulement, there is no known or identified defendant/ Appellant in this case.

[25] The Appellants to date have yet to identify themselves. They have never applied to the Court to intervene in these proceedings or be added as named defendants, or as a party to these proceedings.

[26] As submitted by the Respondent, the law pertaining to this issue is clearly set out in O.89 r.5 of the ROC as follows:

“ORDER 89

SUMMARY PROCEEDING FOR POSSESSION OF LAND

Application by occupier to be made a party (O.89 r.5)

5. Without prejudice to Order 15, rules 6 and 10, any person not named as a defendant who is in occupation of the land and wishes to be heard on the question whether an order for possession should be made may apply at any stage of the proceedings to be joined as a defendant.”

[27] An unnamed person has no identity and therefore lacks locus standi. Hence, an unnamed person has to first identity himself and then apply to be joined as a party to the proceedings before he may be heard. This was clearly spelt out by the Court of Appeal in Orang-orang yang menduduki rumah di bawah hakmilik Geran No 26977 Lot 4271, Johor Bahru v Punca Klasik Sdn Bhd & other appeals [1997] 3 MLJ 761 where at pg 766 the Court held:

"In our view, it is clear that before any person could be heard, he must identify himself and apply to become a party to the proceedings, namely to be named and joined as a defendant. Though the word ‘may' is used in r.5, in our view, that is a specific provision to be complied with before he could be given the opportunity to be heard. In our view, a proper application must be made to the court and not merely by insertion of name as a party. In our view, the failure of any person to do so will not give him or his solicitors the right to appear and be heard by the court.”

[28] We are therefore of the opinion that the Appellants in the present case and their solicitor in fact have no locus standi to be heard in the Court below and in this Court. The appeal is clearly incompetent and ought to be struck out or dismissed on this ground alone.

Squatters have no rights or title

[29] The Respondent, being the registered proprietor of the land, has obtained indefeasibility of title under section 340 of the National Land Code 1965 (“NLC”).

[30] Furthermore, section 48 of the NLC provides as follows:

“48 No adverse possession against the State

No title to State land shall be acquired by possession, unlawful occupation or occupation under any licence for any period whatsoever.”

[31] By virtue of section 48 of the NLC, the Appellants have no title to the land arising from adverse possession or unlawful occupation of the land. The Respondent has already obtained a judgement and final order under O.89 of the ROC. Therefore, the Respondent is entitled to carry out execution of the judgment through the WP as allowed by the Judge in encl. 53.

[32] Contrary to what the Appellants contend, we do not think that there is any abuse of process of the Court by the Respondent in making the Application.

CONCLUSION

[33] For the above reasons, we are of the unanimous decision that procedurally and on its merits, this appeal cannot succeed. We therefore dismissed the appeal of the Appellants and affirmed the decision and order of the High Court.

Dated: 8 March 2018

Sgd

YEOH WEE SIAM
Judge
Court of Appeal Malaysia
Putrajaya

COUNSEL

For the Appellants/ Defendants: Mohd Sarisffuddin Bin Ismail, Messrs Fizol, Aziz & Mohd Noor

For the Respondent/ Plaintiff: Stephanie Khaw, Messrs Khaw Ewe Seng & Co

Legislation referred to:

Rules of Court 2012, Order 3 Rule 5, Order 3 Rule 5(1), Order 46, Order 46 Rule 1, Order 46 Rule 2(1)(a), Order 46 Rule 2(2), Order 46 Rule 2(3), Order 89, Order 89 Rule 5

Limitation Act 1953, Section 6(3)

National Land Code 1965, Sections 48, 340

Judgments referred to:

Orang-orang yang menduduki rumah di bawah hakmilik Geran No 26977 Lot 4271, Johor Bahru v Punca Klasik Sdn Bhd & Other Appeals [1997] 3 MLJ 761

Soo Chow Lai v Tan Ah Tong & Anor [2004] 7 CLJ 54

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