Chapter 11 - Summary Proceedings in Respect of Possession of Land, O.89 Flashcards
SUMMARY PROCEEDINGS IN RESPECT OF POSSESSION OF LAND
Overview
1) Governing procedures & principles
2) Applicability & test for O.89
3) Procedures to apply for O.89
4) Setting-aside order for possession
5) Recent application
SUMMARY PROCEEDINGS IN RESPECT OF POSSESSION OF LAND
Governing procedures & principles
1) Governing principles - Chiu Wing Wa & Ors v Ong Beng Cheng:
- The summary procedure under O.89 is governed by the same principles as those under O.14;
- D needs to show that there is a triable issue of law or fact to entitle him to trial;
- Only in clear cases of trespass that a summary order can be made under O.89.
2) Distinguishing between squatters & otherwise:
Tekad Urus Sdn Bhd v Penduduk-penduduk yang menduduki kawasan yang dipanggil Desa Perwira
- There was an arguable case that the respondents occupied the subject land with the acquiescence of the state authority.
- As such, they were not squatters simpliciter.
- There were issues to be tried that should not be dealt with summarily under O. 89.
cf. Tetuan Takoyaki Property Sdn Bhd v Sam Kok Sang & Ors:
- There was no dispute that the appellants were in fact alienated pieces of land;
- Although the appellants alleged that they received an offer letter for the alienation of land by the State Authority, there was no evidence that the land alienated referred to the registered said land of the respondent.
- State Authority confirmed that the alienated land of the appellants were outside the area of the said land.
- From the evidence adduced, the appellants occupied the said land which was not alienated to them.
- The State Authority did not grant them licenses nor give them permission to stay on the said land.
- The appellants were trespassers in wrongful occupation of the said land & the learned judge was therefore correct in making the order of possession against them.
SUMMARY PROCEEDINGS IN RESPECT OF POSSESSION OF LAND
Rationale & purpose for O.89
1) Rationale - Bohari bin Taib & Ors v. Pengarah Tanah Galian Selangor:
- procedure under O. 89 is intended to be summary, simple and speedy without the necessity of a trial involving witnesses.
- for the purpose of the summary procedure, a distinction should be made between squatters simpliciter and occupiers with licence or consent, and as well as tenants and licensees holding over.
2) Purpose - Cheow Chew Khoon (t/a Cathay Hotel) v. Abdul Johari bin Abdul Rahman:
- O.89 is a summary procedure meant primarily for the eviction of squatters.
- For, it frequently happens that the land or even building is occupied by persons who are essentially trespassers whose identities are often unknown to the plaintiff.
- To require a plaintiff, in those circumstances, to commence a writ action and name the defendants would constitute an imposition of an intolerable burden upon him, therefor O.89 is the solution.
SUMMARY PROCEEDINGS IN RESPECT OF POSSESSION OF LAND
Applicability & test for O.89
1) Trespassers pure - Chiu Wing Wa & Ors v Ong Beng Cheng (Supreme Court):
- O.89 is inapplicable if the applicants are tenants holding over after termination of the monthly tenancy by the notice to quit;
- O.89 is limited to trespassers pure and simple, whether known or unknown.
2) Licensees holding over - Bohari bin Taib v Pengarah Tanah & Galian Selangor:
- O.89 was an inappropriate procedure to be invoked if D are licensees holding over with the consent of P.
- O.89 is only appropriate in cases of squatters simpliciter;
- It may be impossible to establish the existence of any triable issue in the case of bare squatters.
3) Clear cases of trespass - Salim Ismail & Ors v Lebbey Sdn Bhd:
- It is only in clear cases of trespass that a summary order can be made under O.89.
- O. 89 is not the proper procedure if the occupation of the land is with the continued consent, implied or express, of the State Authority.
- Whether there is a consent or not is a triable issue.
- It may be impossible to establish the existence of any triable issue in the case of bare squatters.
xx
xx
PROCEDURES TO APPLY FOR O.89
General
1) Filing application - O.89, r.2:
Forms of OS:
Note:
O.89, r.3:
Affidavit:
2) Non-compliance with affidavit - Damasara Jaya v Penghuni Kuil:
- Compliance with O.89, r.3 is strict.
- Knowledge of history of occupation must be stated.
- “He who comes for equity must be prepared to do equity & come in clean hands”.
3) Service of notice - O.89, r.4:
- Service:
4) Duty of D - Shaheen Abu Bakar v PKNS:
- In O.89 application, the court only considers an affidavit evidence.
- To prevent the order from being made, D have to show an arguable case.
- A strong arguable case for implied or implicit consent of the state where amenities such as water or electricity or roads or community hall have been supplied / were made available.
5) Duty of D - recent - Mohd Zuhairi Zakaria v Rosni Anita Ariffin & Anor (HC, 2020):
- the onus lies on the Defendants to raise triable issues to the claim.
PROCEDURES TO APPLY FOR O.89
Applying to be made a party
1) The law:
O.89, r.5
2) Application - Orang-orang Yang Menduduki Rumah di Geran No. 26977 bagi Lot 4271 Johor Bahru v Punca Klasik Sdn Bhd:
- In order to gain the necessary locus standi, an unnamed person must identify himself and may apply to the court either personally or by his solicitors by naming himself and to be joined as a defendant.
- An unnamed person has no locus standi until he has done so.
- A proper application must be made to the court and not merely by insertion of name as a party.
- 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.
SUMMARY PROCEEDINGS IN RESPECT OF POSSESSION OF LAND
Setting-aside or varying order for possession
O.89, r.8
SUMMARY PROCEEDINGS IN RESPECT OF POSSESSION OF LAND
Recent application
Juta Permai Sdn Bhd v Mohd Zain bin Jantan & Ors (CA, 2001)
- The learned judge was right in holding that the summary procedure under O. 89 was applicable only in respect of squatters simpliciter;
- The respondents not being such persons & O. 89 was therefore not the correct procedure in this instance.
- In respect of the non-compliance of O. 89, r.3(b), the appellant merely stated that the respondents occupied the State Land without the consent of the State Authority.
- The documentary evidence placed before the court below showed that the appellant was involved in the discussion with the respondents and others regarding, inter alia, compensation to be paid and who were entitled were narrowed down to 120 settlers (including the respondents) as ascertained by the appellant itself.
- Therefore, there was suppression of material facts by the appellant.
SUMMARY PROCEEDINGS IN RESPECT OF POSSESSION OF LAND
Most recent application
Mohd Zuhairi Zakaria v Rosni Anita Ariffin & Anor (HC, 2020):
- the onus lies on the Defendants to raise triable issues to the claim.
- The Defendants have not done so here.
- The Defendants right to occupy the said premises ended when the said premises was bought by the Plaintiff in the auction.
- All the rights of ownership of the said premises became vested in the Plaintiff.
- He is prima facie entitled to vacant possession of the premises.
- Order for possession granted.
