850 Raja Said B Raja Long & Ors v.

Johara @ Johara Bt Kassim [1998] 6 MLRH

RAJA SAID B RAJA LONG & ORS

v.
JOHARA @ JOHARA BT KASSIM

High Court, Shah Alam

Faiza Tamby Chik J
[Originating Summons No 24-288-97]
26 October 1998

ALASAN PENGHAKIMAN
Enclosure 1 is an application by the Plaintiffs to remove the caveats entered by the
Defendant on 21.8.96. The said application is supported by the affidavit of Raja
Said bin Raja Long affirmed on 15.5.97 i.e Enclosure 2.
2. By paragraph 2 of Enclosure 2, the Plaintiffs have averred that they are the
registered proprietors of 2 plots of land held under Lot 70 GM 228 and Lot 71 GM
229 Mukim Batang Berjuntai, Daerah Kuala Selangor, Selangor Darul Ehsan ("the
said lands")
3. The Plaintiffs seek to remove the caveat pursuant to Section 327 (1) of the
National Land Code, 1965 (NLC) which states as follows:
"Any person or body aggrieved by the existence of a private caveat may at any
time apply to the Court for an order for removal, and the Court (acting, if the
circumstances so require, ex parte) may make such order on the application as
it may think just. [3]

4. Since the plaintiffs are the registered proprietor of the said land, then it is
presumed that the Plaintiffs are an aggrieved party within the definitin of Section
327 of the NLC. In Eng Mee Yong v V Lechumanan (1979) 2 MLJ 212 PC at 215
Lord Diplock said,
"In their Lordships' view a distinction must be drawn between cases where the
applicant is some other person who claims a right to an interest in it. In the
former case the caveatee can rely upon his registered title as prima facie
evidence of his unfettered right to deal with the land as he pleases; it is for the
caveator to satisfy the court that there are sufficient grounds in fact and law
for continuing in force a caveat which prevents him from doing so."

5. In the light of the above authority, the onus is then on the Defendant to show
the following for the private caveat to remain on the register:
(a) ;Whether the Defendant has disclosed a caveatable interest on the said
[1998] 6 MLRH Raja Said B Raja Long & Ors v. Johara @ Johara Bt Kassim 851

land; [4]
(b) ;Whether the evidence produced in support by the Defendant discloses a
serious question to be tried; and
(c) ;Whether the balance of convenience or justice lies in favour of the caveat
remaining on the register.

These three stages can be distilled from the judgements of the following cases.
In Nayang Development Sdn Bhd v How Swee Poh [1990] 1 MLJ 145 the court held:
"the onus of proof in an application under section 327 of the National Land
Code is on the caveator and it is for the caveator to satisfy the court that it is
just for the caveat to remain; the burden is on the caveator to satisfy the court
that he has good grounds for his alleged claim that he has a registrable Interest
in the land".

In Eng Mee Yong & Ors Letchumanan (1979) MLJ 212 PC Lord Diplock also stated
at page 215 right: [5]
"This is the nature of the onus that lies upon the caveator in an application by
the caveatee under section 327 for removal of a caveat: he must first satisfy the
court that on the evidence presented to it his claim to an interest in the
property does raise a serious question to be tried; and having done so, he must
go on to show that on the balance of convenience it would be better to
maintain the status quo until the trial of the action, by preventing the caveatee
from disposing of his land to some third party".

In Murugappa Chettiar Lakshmana v Lee Teck Mock (1993) 1 MLJ 782 the court held:
"In order to sustain a caveator must first pass through three stages:
(i) whether he has disclosed a caveatable interest in his application under
s 323(1) of the Code;
(ii) if he has established a caveatable interest, then, whether the evidence
produced in support of his claim discloses a serious question to be tried;
and [6]
(iii) if both questions are resolved in the caveator's favour, then whether
the balance of convenience or justice, lies in favour of the caveat
remaining on the register pending the disposal of his suit."

In Kho Ah Soon v Duniaga Sdn Bhd (1996) 2 MLJ 181 FC the court held:
852 Raja Said B Raja Long & Ors v. Johara @ Johara Bt Kassim [1998] 6 MLRH

"It is settled that in a matter of removal of a caveat as between a caveator and

caveatee, the onus is on the caveator to satisfy the court that his evidence does
raise a serious question to be tried with regard to his claim to an interest in the land
in question, and having done his claim so he must show that, on a balance of
convenience, it would be better to maintain the status quo until the trial of the
action by preventing the caveatee from disposing of his land." (see p. 184 F-H)

In Hew Sook Ying v Hiw Tin Hee (1992) 2 MLJ 189 the court held:
"For the caveat to continue in the instant case, the respondent as a third party
caveator must have satisfied the court that he had a [7] caveatable claim to
title or registrable interest in land under s 324 of the NLC, it is essential for the
respondent caveator to have a claim filed or to be filed within reasonable time
for adjudication. The respondent, however, had no intention of filing any
action."

6. In the present case the Defendant failed to cross the first hurdle as the Defendant
as a caveator had not disclosed the interest in her application to enter a caveat
under s. 323 (1) of the NLC. The Defendant failed to show nor deposed in her
affidavit the nature and interest in her application to enter a caveat under the
aforesaid section. Since the Defenant failed to do so the Defendant's case is cadit
quaestio . In Pembangunan Wang Kita Sdn Bhd v Fry-Fry Marketing Services Sdn Bhd
(1988) 2 MLJ Supp 96 at p 97 the Court held:
"The first hurdle was whether the defendant as a caveator had disclosed a
caveatable interest in his application under s.323(1) of the National Land
Code, 1965."

In Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor(1995) 1 MLJ 719 at 741
the Court stated: [8]
"In my judgement, there are three stages through which an inquiry of this
nature must go. The first stage is the examination of the grounds expressed in
the application for the caveat. If it appears that the ground stated therein are
insufficient in law to support a caveat, then cadit quaestio , and the caveat must
be removed without the necessity of going any further."

7. It is observed that by the Defendant's affidavit, the Defendant alleged that:

(a) ;The Plaintiffs became the registered proprietor of the lands by way of
fraud;
(b) ;The original grant of the said lands belonged to one S Noor Bak alias
Noor Baik s/o Syed Baik alias Noor Beg bin Syed Beg alias Noor Beck s/o
Saith Beg alias Noor Beg s/o Syed Beg alias Noor Beg s/o Seth Beg since the
[1998] 6 MLRH Raja Said B Raja Long & Ors v. Johara @ Johara Bt Kassim 853

deceased and the purported grant had been lost by a firm of solicitors Messrs
ChongThian Fook & Partners; [9]
(c) ;The Plaintiffs become the registered proprietor through notification in a
Government Gazette.

8. It must be noted that however emphatic and strong the Defendant's allegations
of fraud vis a vis the Plaintiff, the Defendant must plead the particulars of fraud.
Since there is no particulars of fraud pleaded, this plea must fail. In Ting Ling Kiew
& Anor v Tang Eng Iron Works Co Ltd (1992) 2 MLJ 217 FC the court held:
"In such a case as the present where fraud or intention to defraud was the
central issue, particulars of fraud must be specifically pleaded and it was
obvious that such particulars were absent in the affidavit of the manager of the
respondent company."

9. Furthermore the onus of proof on an allegation of fraud is that of beyond

reasonable doubt. In Ibrahim bin Musa v Bahari bin Nayan sued as Administrator of the
estate of Chin @ Husin bin Derambang deceased) (1990) 2 CLJ 223 the court held, [10]
"The Defendant has not, as required when fraud is alleged, discharge the onus of
proof beyond reasonable doubt." (See Saminathan v Pappa (1981) 1 MLJ 121 ).
In Saminathan v Pappa 1 MLJ 121 the court held: "The onus of proof of fraud in
Malaysia is proof beyond reasonable doubt."
10. The Defendant claimed that the original grant to the lands had been lost by
Messrs Chong Thian Fook since 1990. Yet the Defendant had not procured a
replacement to the original grant nor had the Defendant initiated any action for
adjudication. Furthermore, the Defendant claimed that she was aware of the said
lands being registered in the Plaintiff's name as early as 31.7.95. But to date no
action had been commenced by the Defendant. In the circumstances there is no
serious issue to be tried and that the Defendant had failed to satisfy that on a
balance of convenience the caveat should remain on the register. It must be borne
in mind that the purpose of a private caveat is to preserve the status quo pending
the taking of timeous steps by the applicant to enforce his claim to an interest in the
land by proceedings in the courts. (See [11] Registrar of Titles v Temenggong Securities
Ltd (1976) 2 MLJ 44 at page 46).
In Megapillars Sdn Bhd v Loke Kwok Four (1996) 4 CLJ 82 the court held at page 84,
"The object of a caveat is similar to that of an interlocutory injunction, it is to
provide interim protection to the interest of the applicant who can show that
he has a genuine claim on that interest and that the status quo between the
parties should be maintained pending the final disposal of the claim. It
follows, therefore, that the applicant must pursue his claim timeously, a failure
to do so will defeat the privilege of having a caveat lodged. Thus, where there
854 Raja Said B Raja Long & Ors v. Johara @ Johara Bt Kassim [1998] 6 MLRH

has been an inordinate delay by the caveator in pursuing his claim, the Court will
not assist him in maintaining his caveat to the detriment of the registered
proprietor as this will be inequitable."

11. The Plaintiffs are the beneficiaries of a small estate belonging to the deceased
Raja Hj Ab. Rahman bin Raja Jalil. The said lands belonged to the deceased and
pursuant to the Small Estates (Distribution ) Ordinance, 1955 , the Collector ordered
that the deceased's land be [12] Ordinance, 1955 , the Collector ordered that the
deceased's land be distributed in the manner set out in exhibit R-1. The Plaintiffs
(having a registrable interest vide the Collector's order) then applied to the
Registrar of Land Registry to register themselves as the registered proprietors of the
land pursuant to Section 175 of the NLC as the register documents of title were
missing. The Defendant did not object within the time limited or specified in
Section 175E of the NLC.
12. Registration of title vide Section 175 registration is conclusive evidence that the
lands are vested in the Plaintiffs. Section 175 of the NLC, 1965 provides that:
"The provisions of sections 89 to 91 shall apply to documents prepared under
this Chapter as they apply to documents of final title prepared on alienation
under Chapter 3 of Part Five."

Section 89 of the NLC, 1965 provides that:

"Every register document of title duly registered under this Chapter shall
subject to the provisions of this Act, be conclusive evidence- [13]
(a) that title to the land described therein is vested in the person or body
for the time being named therein as proprietor; and
(b) of the conditions, restrictions in interest and other provisions subject to
which the land is for the time being held by the person or body so far as
the same are required by any provision of this Act to be specified or
referred to in that document.

In Teh Bee v K Maruthamuthu (1977) 2 MLJ 7 the court held,

"The fact that the register document of title was in the name of the appellant
was conclusive evidence that the title to the land was vested in the appellant;

In Mohan Singh v Shah Alam Properties Bhd (1996) 4 MLJ 385 the court held:
"Surat hakmilik tanah tersebut menunjukkan bahawa plaintif telah
didaftarkan sebagai pemilik tanah tersebut. Fakta pendaftaran ini [14]
merupakan keterangan konklusif atau muktamad bahawa hakmilik ke atas
[1998] 6 MLRH Raja Said B Raja Long & Ors v. Johara @ Johara Bt Kassim 855

tanah tersebut diperolehi oleh plaintif di bawah s 89(a) Kanun Tanah Negara, 1965
("Kanun itu"). Hak-Hak Plaintif sebagai pemilik tanah tersebut adalah satu hak tak
boleh disangkal di bawah s 340 Kanun itu dan tidak boleh dilucuthak melainkan
menurut peruntukkan undang-undang. Maka, plaintif adalah tuan punya berdaftar
dan pemilik yang sah bagi tanah tersebut". (lihat m.s. 388 D-G, 389C) Procedural
Defects

13. The Defendant filed 2 affidavits to oppose the Plaintiffs' application for
removal of the caveats. The said affidavits are:
(a) ;Afidavit Jawapan Johara @ Johara binti Kassim affirmed on 10.10.97;
and
(b) ;Afidavit Jawapan Johara @ Johara binti Kassim affirmed on 26.11.97.
[15]

14. The aforesaid affidavits are defective. The said affidavits failed to comply with
Order 41 Rule 1(8) of the Rules of the High Court, 1980 which states that a jurat
shall be in one of the forms in Form 78. The translation must be performed by the
Commissioner of Oaths whereas the aforesaid affidavits were translated by an
advocate and solicitor by the name of Norbaini bt Mohamed a legal assistant from
the firm of Messrs Matthew Thomas & Liew solicitors on record for the
Defendant. The jurat contained in the affidavits appears on a fresh page see Menteri
Hal Ehwal Dalam Negeri v Voon Mow Chen(1993) 2 AMR 2199 at 2204 which stated
at page 204,
"It is this court's view that the reason that the jurat of an affidavit should not
begin and end on a fresh page but rather should immediately follow the end of
a substantive or spillover of the last substantive averment of the deposition, is
in order to ensure that there is sufficient indication that the jurat relates
directly to the deposition. This also in order to obviate the possibility of abuse
by any party who may preexecute jurats of affidavits in the absence of any
averments for attachment to subsequently prepare averments. On [16] account
of this, it was held in the case of Amanah International Finance Bhd v Thiem Juk
Cheung & Anor Suit No. KG 392 of 1986 (High Court, Kuching (Haidar J)
September 4, 1989, that the affidavit of x was defective as the jurat of the
affidavit began and ended on a fresh page and did not follow immediately
after the end of the deposition. I wholly agree and subscribe to the ration in
this case and I hold to be defective, such similar affidavits filed by the
respondent here."

15. In the circumstances, there is no serious issue or issues to be tried and that the
Defendant has failed to show on the balance of convenience the caveat ought to
remain.
 856 Raja Said B Raja Long & Ors v. Johara @ Johara Bt Kassim [1998] 6 MLRH

16. For these reasons, the Plaintiff's application is allowed with costs. Damages are
to be assessed by the Senior Assistant Registrar.

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