TUTORIAL 4: STRUCTURE OF MALAYSIAN LAND LAW, THE TORRENS

SYSTEM AND THE NATIONAL LAND CODE & CONVEYANCING IN MALAYSIA

Key Cases
UMBC v Pemungut Hasil Tanah Kota Tinngi [1984] 2 MLJ 87
UMBC & Than Khien Toong v Hoong Bee & Co. [1987] 1 MLJ 387
Om Hiam v Tham Khong [1980] 2 MLJ 159

2. Discuss the case of UMBC v Pemungut Hasil Tanah Kota Tinggi [1984].
land forfeited, they were asking for relief against forfeiture (they cannot
bring their case within S.134(2))

Land was alienated to appellants for 99 years by State Authority. Couple of charges was
placed on to the land by the appellant so that the loans could be paid. Appellants defaulted in
payment and the land revenue served a notice for them to pay. Due to a misunderstanding,
appellants did not pay the rent or the penalty that was served.

Collector of Land Revenue therefore made an order declaring the land to be forfeited back to
the State Authority. Appellants claimed for the land under equity for relief against forfeiture.

Held: The word ‘tenure” in S.6 of CLA should be interpreted in its ordinary and natural
meaning, which would include all laws regarding land and as well as to include relief against
forfeiture. It prohibits the application of English rules in Equity regarding tenure.

Hence equity is not applicable here:

 To introduce equity despite the presence of express legislation would be eradicating
the concept of certainty which NLC was trying to implement and reconstituting the
court as a third legislative chamber
 NLC is a complete and comprehensive code of law governing tenure of land – no
room for importation of rules of English law except it is expressly provided by the
Code itself
 The word ‘tenure’ in s6 of CLA is wide enough to cover equity\
 Where the NLC provides provisions for such matter than equity is not applicable that
is meaning of “where the NLC is complete and comprehensive…”

a. Do you agree with the decision of the court in this case ?

Yes.

b. Or do feel that the court has been too restrictive? Why ?

No. Because , the NLC is a complete and comprehensive code of law governing the tenure of
land. Therefore no changes are needed to be made for any situations.

c. How does the court’s decision reflect the position of the court in the interpretation of
section 6 of the CLA 1965?
Prohibition of s6 of CLA:
“Nothing in this Part shall be taken to introduce into Malaysia or any of the States comprised
therein any part of the law of England relating to the tenure or conveyance or assurance of or
succession to any immovable property or any estate, right or interest therein”
3. Discuss the decision of Om Hiam v Tham Khong in relation to section 6 of the CLA 1965.

Mistake made by the parties when executing the transfer – the solicitor`s of one party
accidentally included a land which was not agreed in the first place – the transfer was
executed and the vendor seek to rectify the error

Held : Torrens system is designed to provide simplicity and certitude in transfers of land,
which can be achieved without depriving equity of its ability to exercise in personam claim
on the grounds of conscience

The fact that rectification is not allowed under s380 for errors made by the parties themselves
does not preclude the court from doing equity – granted the order of rectification despite the
purchaser had already registered and obtained indefeasibility of title.
Another situation where the Court had used a particular doctrine under English equitable
principles of general application against the S. 6 is the doctrine of bare trust. The application
of the doctrine of bare trust had been clouded but Malaysian court had applied on numerous
occasions without hesitation in land matters.

S.6: was enacted to prevent the importation of the English law land under S.3(1) to the land
matters in Malaysia. However, in the interest of justice, the court had used the English
equitable principles of general application in matters pertaining to land law and granted
relieves to the affected parties where there was lacuna in the local law. Thus, it is my humble
opinion that the effect of S.6 does not conclusively and/or wholly bar the application of the
equitable principles in the Malaysian land law.

RIGHTS AND POWERS OF STATE AUTHORITIES

2. Khalid is the holder of a Temporary Occupation Licence (TOL) over a piece of land in
Pekan Emas. In 2010 , Khalid applied for alienation of the said land was assured by one of
the officers in the Land Office that his application will definitely be approved. Based on the
encouragement of the said officer, Khalid built three single storey houses on the land and
sold one house to Jumaat. Recently Khalid discovered that his application for alienation has
not been approved. Khalid had also received notice to vacate the piece of land by the end of
2013 as the land is needed for future development. Advise Khalid on his rights to the land as
a TOL holder. Advise Jumaat as to his rights on the land. Advise Khalid on whether he can
claim to be entitled to have the land alienated to him on the strength of the encouragement
given to him by the officer in the Land Office.

Khalid:
the power to issue a TOL – s. 65(1) NLC 1965 :
(1) The State Authority may, in accordance with the provisions of this Chapter and of any
rules under section 14, permit the temporary occupation under licence of-
(a) State land;
(b) mining land not for the time being used for the purposes of mining;
(c) reserved land not for the time being used for the purposes for which it was reserved

Purpose of the TOL -S 65(2) NLC 1965:

(2) Temporary occupation licences may be issued for any purpose other than one prohibited
by sub-section (2) of section 42.
-Mohd. v Kinju Mohidin – if TOL was granted for two different holders, the TOL holders
cannot be sue each other for trespass. In this case, the respondent (R) was granted a TOL to
pluck coconut trees, the appellant (A) was subsequently granted TOL to rear chicken, A
chopped down R’s tress and R sued for loss of income. it was held that, the claim for
damages for loss of tress could not be claimed. Tol is only granted for plucking coconuts and
not to plant coconut trees, however, can claim for loss of income due to loss of coconuts.

Authority to issue the TOL S.66 NLC 1965

Jumaat:
The TOL holder merely had the possessory right in which it is the right to exclude others and
not proprietary rights over the land.
A TOL cannot be assigned, transferred or inherited – S.68 NLC 1965

3. Discuss the position of persons occupying land under the concept of adverse possession of
land in Malaysia.

 General rule – disposal of State lands can only be done by the SA under s42

 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.

 One cannot claim to own a particular State land just because he had been staying there
for years without interruption by SA

 S425(1) – adverse possession is a crime

 Sidek v The Govt. of State of Perak:

A district officer promised each family will be given 3 acres of land after successful
interview. Utusan Melayu quotes Bername that the State Director of Lands and Mines
promised to give 5 acres of padi land.
. Held – s48 – no adverse possession is allowed. Squatters have no right either in law
or equity. Promise made by govt officers does not bind the SA – the only way to get
State lands is by way of NLC. It was held by the federal court that it is clear beyond
doubt that they cannot succeed because they are squatters. Squatters have no right
either in law or in equity, it does not lie in their mouths to assert that they used and
occuipied the land as squatters. S.48 NLC is against them and S.78 alienation is in
accordance with the NLC. This amounted to an illegal occupation by the squatters and
therefore it is an offence under S.425 of the NLC – “a court if equity will never assist
squatters to resist an order of possession illegally acquired, it will never intervene in
aid of wrong-doers”

 Gov of Negeru Sembilan & Anor v Yap Chong Lan & Ors:
 • the federal court stated that: In light of the statutory provisions [s 78(1)-(3)] and case
law, the doctrine of equitable estoppel may not be raised against the SA because to do
so would establish against SA rights in respect of State land which is prevented by
statute from creating , other than in accordance with NLC.

 Shaheen bt Abu Bakar v PKNS:

Held: The settlers were not squatter simplicities as there was a strong arguable case that they
had occupied the land with the implicit consent of the state authority.

 Tekad Urus Sdn Bhd

Issue: Whether the respondents are squatters or occupiers with licence. Held – the
respondents were not squatters but occupiers with licence. There was acquiescence of
the initial unlawful entry of the Repondents into the land by positive encouragement of
various State Govt (providing facilities and financial aid). Chief Minister was also
aware of their presence but take no action to evict them – no proceeding under O89 of
RHC could be taken to evict them now

5. Mahmud has recently been alienated with a piece of land in Pulai Simpang. However, in
March of 2009, the State Authority received a letter of complaint from Syarikat Dalimah
saying that the land that Mahmud is now occupying actually had been leased to them for a
period of 25 years. However, only two acres of land from Syarikat Dalimah is affected.
Advise the State Authority on how to overcome this problem.