KEPONG DEVELOPMENT SDN BHD NG BEE WAN (NO. KP: 760811-14-5898) SEBAGAI PEGAWAI AWAM BAGI PERSATUAN PENGANUT HOCK SUI TONG KEPONG KUALA LUMPUR

WA-22NCvC-630-08/2019 Kand. 91 11/08/2022 11:32:58 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA GUAMAN SIVIL NO: WA-22NCvC-630-08/2019 ANTARA KEPONG DEVELOPMENT SDN BHD (No. Pendaftaran Syarikat: 6895-P) ... PLAINTIF DAN NG BEE WAN (No. K/P: 760811-14-5898) dituntut sebagai Pegawai Awam bagi PERSATUAN PENGANUT HOCK SUI TONG KEPONG KUALA LUMPUR (No. Pendaftaran PPM 009-14-06032000) ...DEFENDAN GROUNDS OF JUDGMENT (After full trial) A. Introduction [1] This is essentially an action (“this Suit”) by the registered proprietor of a few pieces of land which are occupied by dwellers (whom the Plaintiff claimed as squatters) who have refused to move out and give vacant possession of the lands to the register proprietor. The Plaintiff is seeking orders of vacant possession and an order to allow the buildings and structures on the land to be demolished. [2] The Plaintiff is the registered proprietor of all those pieces of land held under Grant 64801, Lot 19126; Grant 64800, Lot 19127; and Grant 64799, Lot 19128, Mukim Batu, Kuala Lumpur District, Federal Territories (“the Said Lands”) which was previously registered under a master title H.S (D) 79276, PT. No. 564. The Said Lands are all located at the outskirts of Kuala Lumpur in Taman Kepong. [3] The Defendant is an office bearer of Persatuan Penganut Hock Sui Tong Kepong Kuala Lumpur (“the Association”) and at all material times, the Association has been managing a temple known as Kuil Taoist Persatuan Penganut Hock Sui Tong Kepong Kuala Lumpur (“the Temple”) which occupies a part of the Said Lands. [4] It is the Plaintiff’s position that they have never at any point of time given permission to any parties whether impliedly or expressly for the Temple to be built on S/N p9lZHozgdE2TL/aim3ikEQ 1 document via eFILING portal **Note : Serial number will be used to verify the originality of this the Said Lands and/or to continue occupying the Said Lands. The Plaintiff claimed that the Temple and all of its occupiers are squatters and/or trespassers on the Said Lands. [5] As such, the Plaintiff had instructed its solicitor to give a notice of eviction dated 22.08.2016 (“the Notice of Eviction”) to the occupiers of the Said Lands to cease occupation, to demolish and to remove all structures and buildings constructed on the Said Lands. [6] Despite the Notice of Eviction, the Defendant had failed and/or refused and/or neglected to cease occupation of the Temple on the Said Lands and/or to remove the Temple from the Said Lands. [7] Prior to this Suit, the Plaintiff brought an action under Order 89 of the Rules of Court 2012 vide an originating summons (“the O. 89 Application”). My learned brother Mohd Zaki Abdul Wahab J dismissed the O.89 Application and held that the actual status of the said Temple could only be decided upon the completion of evidence given by the witnesses and as such, the originating summon was not an appropriate mode to commence the action. [8] The Court in the O.89 Application had made the following observation: a) the Second Defendant was not the owner of the Temple and should not be named as the defendant in the Suit. The presence of the Second Defendant on the Said Lands was as a guardian of the Temple and on such capacity as the guardian of the Temple, the Second Defendant was not the person who owned the Temple; b) the Association was the effective owner of the Temple as they had control over the operation of the Temple and had power to determine its future; c) the Association should be named as the defendant; and d) the actual status of the Temple could only be decided upon the complete evidence adduced by the witnesses and as such, the application pursuant to Order 89 of the ROC was not appropriate. [9] The Plaintiff then commenced this Suit before this Court for, inter alia: S/N p9lZHozgdE2TL/aim3ikEQ 2 document via eFILING portal **Note : Serial number will be used to verify the originality of this a) a declaration that the Defendant does not have any interest and/or rights under the National Land Code 1965 (“the NLC”) in respect of the Said Lands; b) that the Plaintiff be given vacant possession of that portion of the Said Lands which is being occupied by the said Defendant and/or the said Temple; c) that the Defendant do all that is necessary to remove the said Temple from the Said Lands and/or alternatively that the Plaintiff be given permission to take necessary steps to remove the Defendant and/or said Temple from the Said Lands; and d) that the Plaintiff be given liberty to apply for any ancillary reliefs that are deemed fit and proper. [10] The Defendant on the other hand, had counterclaimed for, inter alia: (a) a declaration that the Defendant is a licensee coupled with equity, entitled to the Said Lands; b) a declaration that the oral contract made by the Plaintiff to allocate and transfer a piece of land at the same site to relocate and build the Temple is a valid and binding contract against the Plaintiff; c) specific performance against the Plaintiff for it to allocate and transfer a piece of land to the Association with an area of approximately one (1) acre on the same site at a location suitable to the Defendant on the Said Lands to rebuild and relocate the Temple; and d) a permanent injunction restraining the Plaintiff and its directors from entering, destroying, demolishing the Temple. B. The Trial [11] During the trial, the Plaintiff called one (1) witness while the Defendant called three (3) witnesses. The list of witnesses is as follows: SP1 Yap Chin Huat SD1 Ng Chu Yok SD2 Tan Swee Cheng SD3 Ng Bee Wan S/N p9lZHozgdE2TL/aim3ikEQ 3 document via eFILING portal **Note : Serial number will be used to verify the originality of this I. Issues [12] Before the trial, the Parties had agreed on the following issues to be tried: (i) Whether the Plaintiff as the registered proprietor of the Said Lands is entitled to claim for the vacant possession; (ii) Whether the Defendant has any interest over the Said Lands; (iii) Whether the Defendant is occupying the Said Lands as a license holder coupled with equity and whether license coupled with equity is recognized under the NLC; (iv) Whether the Defendant had committed a trespass over the Said Lands; (v) Whether there is any oral contract between the Plaintiff and Defendant to provide and transfer a piece of property at the same spot owned by the Plaintiff to the Temple; (vi) Whether the Plaintiff’s claim is estopped on the principle of res judicata; and (vii) Whether the Defendant is entitled to claim for the reliefs as claimed in the Defendant’s Counterclaim against the Plaintiff in this suit. II. The Plaintiff’s Case [13] The crux of the Plaintiff’s claim is that the Plaintiff is the registered proprietor of the Said Lands and is therefore entitled to the vacant possession of the Said Lands. [14] The Plaintiff argued that the Defendant has no registrable rights and interest over the Said Lands and as such, the Defendant is a squatter and/or trespasser on the Said Lands. The Plaintiff relied on Section 341 of the NLC and the case of Cahaya Ideal (M) Sdn Bhd v Orang-Orang Yang Mengenali Diri Sebagai 'Ponga' & Ors [1999] 3 CLJ 257 to support its contention. [15] The Plaintiff also submitted that it is settled principle that squatters will not receive any protection under the law from eviction by the legal owner. On this point, the Plaintiff refers to the then Federal Court case of Sidek Hj. Muhamad & Ors. v The Government of The State Of Perak & Ors. [1982] CLJ Rep 321. [16] According to the Plaintiff, the Defendant is in occupation of the Said Lands without any license. The Defendant had failed to show any document and evidence to S/N p9lZHozgdE2TL/aim3ikEQ 4 document via eFILING portal **Note : Serial number will be used to verify the originality of this show that they were given any permission or consent to occupy and/or continue to occupy the Said Lands from either the previous landowners or the Plaintiff. [17] Further, the Plaintiff is not estopped by the doctrine of res judicata because the O.89 Application was never fully heard on its merits. III. The Defendant’s Case [18] The Defendant’s defence to the Plaintiff’s claim is premised on three bases. Firstly, the Temple has a licence coupled with equity to remain on the Said Lands in the absence of the provision of alternative land by the Plaintiff. [19] Second, that a contractual right has accrued to the Temple to remain on the Said Lands. This is founded on the promises made by one Wong Bin Cheng, the Director of the Plaintiff at the material time (“the Deceased”), that the Temple would continue to be allowed peaceful possession of the Said Lands or, in the event that the Plaintiff sought to develop the Said Lands, that the Temple would be provided with an alternative place of residence. These promises were accepted by the Temple for good consideration. [20] Finally, the Defendant claimed that the Notice of Eviction is bad in law. This is because the Plaintiff relied on the same Notice of Eviction that was the subject of the earlier O.89 Application. The O.89 Application was dismissed. The Plaintiff is therefore now estopped from relying on the same Notice of Eviction, and on the same facts that have been determined. C. Findings [21] After perusing the cause papers, the witnesses’ statements, the documents, the notes of proceeding and the written and oral submissions and replies by the parties, I allow partially both the Plaintiff’s claim and the Defendant’s counterclaim. I order that the Defendant is to move out of the Said Lands by 1st February 2023 subject to the equity of the Defendant being honoured by the Plaintiff. Herein are my reasons. S/N p9lZHozgdE2TL/aim3ikEQ 5 document via eFILING portal **Note : Serial number will be used to verify the originality of this I. The Position of Plaintiff as the Registered Proprietor of the Said Lands [22] It is the Plaintiff’s case that there is no registrable right for the Defendant to occupy the Said Lands. The Plaintiff had correctly surmised this and undoubtedly this is the position of the law under section 340 of the NLC. In fact, this point was never disputed by the Defendant. [23] However, the Defendant in its defence pleaded that they are not trespassers. They have interest over the Said Lands evidenced by the alleged acquiescence by the Plaintiff. In opposing the Plaintiff’s claim, the Defendant had counterclaimed for a declaration that it is a licensee coupled with equity and also prayed for specific performance for the Plaintiff to relocate the Temple pursuant to the Deceased’s promise thereon. [24] Our Torrens system has long recognised the operation of equity despite the need of registration under the NLC. Raja Azlan Shah J (as he then was) in Mercantile Bank Ltd v The Official Assignee of the Property of How Han Teh [1969] 2 MLJ 196, (at p. 198D (right)) has endorsed the ratio of Taylor J in Wilkins v Kannamal [1951] MLJ 99: "The Torrens Jaw is a system of conveyancing; it does not abrogate the principles of equity; it alters the particular rules of equity but only so far as is necessary to achieve its special objects". [25] Thus, Azahar Mohamed FCJ (now CJ Malaya) held in Low Huat Cheng & Anor v Rozdenil bin Toni and another appeal [2016] 5 MLJ 141 that: "[59] It is to be emphasised here that the concept of indefeasibility does not exclude the court’s jurisdiction to grant relief in a claim in personam founded in Jaw or equity which is enforceable against or binding on the registered proprietor (see Teo Keang Sood and Khaw Lake Tee in Land Law in Malaysia, Cases and Commentary at para 4.152). Lord Wilberforce in Frazer v Walker and Others [1967] 1 All ER 649; [1967] 1 AC 569 emphasised that the principle of indefeasibility of title 'no way denies the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant'." S/N p9lZHozgdE2TL/aim3ikEQ 6 document via eFILING portal **Note : Serial number will be used to verify the originality of this [26] In a similar vein, in He-Con Sdn Bhd v Bulyah Ishak & Anor and another appeal [2020] 7 CLJ 271, Abang Iskandar FCJ (now CJ Sabah & Sarawak) has laid down the following passage of Peh Swee Chin SCJ in Yeong Ah Chee v. Lee Chong Hai & Anor And Other Appeals [1994] 3 CLJ 20 to emphasis the position of equity in our land law: “[56] …. It is also of salutary effect to remind ourselves of the fact that rules of equity apply to this country by the Civil Law Act 1956 and of the observation of Lord Russel of Killowen in Oh Hiam v Tham Kong [1980] 2 MLJ 159, PC that "the Torrens system is designed to provide simplicity and certitude in transfer of land which is amply achieved without depriving equity of the ability to exercise its jurisdiction in personam on grounds of conscience. [57] The essence to be derived in that short but concise paragraph is that equitable principles can coexist with legal and statutory principles under the Torrens system". [27] Thus, it is trite that equitable rules remain applicable in our land law, in particular, the 2 equitable applications in dispute in our present case: licensee coupled with equity and proprietary estoppel. (See, Teo Keang Sood, Role Of Equity And The Application Of English Land Law In The Malaysian Torrens System, 22 Canterbury Law Review (2016) 40) For this reason, this Court will have to look at heed actions and words of the Plaintiff to ascertain whether there may present any equitable interest of the Defendant in this case. II. Licensee Coupled with Equity [28] The Defendant contended that they had equitable rights over the Said Lands by long acquiescence of the Plaintiff. It is trite law that the notion of licences coupled with equity has been an enduring form of licences, stemming from at least the early 17th century (see Webb v Paternoster [1619] 2 Roll. Rep. 143). Unlike a bare licence, a licence coupled with an equity may not be terminated simply upon the wish of the licensor (the party which is burdened by the licence). [29] These sorts of licences are found in situations where the landowner ‘grants a licence to another person to go upon land and occupy it for a specific period or a S/N p9lZHozgdE2TL/aim3ikEQ 7 document via eFILING portal **Note : Serial number will be used to verify the originality of this prescribed purpose, and on the faith of that authority the licensee enters into occupation and does work, or in some other way alters his position to his detriment’ (see National Provincial Bank Ltd v Hastings Car Mart Ltd [1965] UKHL 1). The court will uphold the licence in order to prevent the licensor from acting in such a way as to frustrate the purpose of the licence. [30] It is my finding that the Defendant here is not squatter simpliciter. The Court is of the view that the Defendant had correctly pointed out that equity is ever-present and has its applications in our law (see Samuel Naik Siang Ting v. Public Bank Bhd [2015] 6 MLJ 1 at p. 26) and that this is a case justifying and demanding the operation of equity. [31] To deal with the issue whether the Defendant is a licensee coupled with equity, I am guided by the judgment in Sentul Murni Sdn Bhd v Ahmad Amirudin Bin Kamarudin & Ors. [2000] 4 MLJ 503 where the Court of Appeal upheld the decision of the High Court which awarded compensation to the defendants who were alleged to be squatters. The defendants in that case claimed that they were “lawful occupants of the land as licensees coupled with equity”. [32] The basis of this determination in Sentul Murni (supra) was that the residents were not trespassers, but lawful occupants on the land coupled with an equity for the following reasons: a) the plaintiffs ought to have known of the equity which had long existed in favour of the defendants before the plaintiff had purchased the land; b) the defendant’s continuous occupation and possession was acquiescenced by the state authority, as evidenced by inter alia, facilities provided by the authorities to the defendant’s village; c) on the basis of such acquiescence, the defendant had expended money and labour to improve and develop the land, for example, by building, improving, and extending their houses; and d) encouraged by the Plaintiffs, the defendants had expended money and labour to improve the subject land. S/N p9lZHozgdE2TL/aim3ikEQ 8 document via eFILING portal **Note : Serial number will be used to verify the originality of this [33] Thus, although the registered owner in Sentul Murni (supra) ultimately obtained orders of vacant possession, the trial judge found as a fact that the defendants were not squatters simpliciter but were in occupation of the land as licensees and with the consent of the State Authority that they could occupy or continue to occupy the land. Thus, the order of vacant possession in favour of the registered owner was subject to the owner paying compensation to the occupants for construction and renovation of their respective houses. [34] This Court further refer to the case of Pembangunan Darjat Sdn Bhd v Wong Jie Tshung & Ors [2000] 2 MLJ 212, where the ratio of Richard Malanjum J (as he then was), is instructive. Although Pembangunan Darjat Sdn Bhd (supra) was a case involving a question as to whether adverse possession has been made out under the Sabah Land Ordinance, His Lordship’s comment on the concept of equitable estoppel and a licence (or tenancy) coupled with equity is relevant to our case. [35] Essentially, in Pembangunan Darjat Sdn Bhd (supra), a notice to quit cannot validly terminate the rights of persons occupying land where that occupation is coupled with an equity. His Lordship stated as follows, at 225F: “…in view of the term as contended and not disputed, namely an earlier permission to enter and stay on the land given to the occupants, including the 16 defendants and their predecessors, I do not think the 1982 notice to quit could have validly terminated it. In the case of Mok Deng Chee v Yap See Hoi & Ors [1981] 2 MLJ 321, Salleh Abas FJ (as he then was) at p 323 said this: “It was contended that the phrase 'deliver up premises' was ambiguous and uncertain as to what the appellant should do. In our view there is no merit in this submission. As the appellant did not own the land, a notice 'to quit and deliver up possession of the premises known as 22, Lorong Empat, Senai, Johore' must mean that the appellant must vacate or give up the land with or without the disputed house being demolished. The term of the notice was clear enough and it should not therefore be held bad in law on account of ambiguity or uncertainty. However, the matter did not end there, because the notice, clear and unambiguous in its terms, may not operate to terminate appellant's tenancy, if the S/N p9lZHozgdE2TL/aim3ikEQ 9 document via eFILING portal **Note : Serial number will be used to verify the originality of this appellant could prove to the satisfaction of the court that he had a tenancy coupled with an equity, or sometimes referred to, equitable estoppel. This leads us to deal with the second issue upon which the learned Magistrate rested his decision but was overruled by the learned judge.” [Emphasis added] [36] The Plaintiff in the case before me sought to distinguish the facts of Sentul Murni (supra) by purporting that, in any case, the Defendant, the Association, and the Temple are squatters simpliciter. The Plaintiff emphasised that the Defendant should be reduced to a squatter simpliciter and thus the principle that equity shall not assist squatters to resist an order of possession is in effect. [37] However, the voluminous direct and circumstantial evidence presented by the Defendant supports the contrary position and that equity is to be afforded in this case. [38] It is clear that in establishing whether the Defendant is a licensee coupled with equity, the question that matters is: has the landowner, namely, the Plaintiff in this case, granted any permission for the Defendant to remain on the Said Lands. The Plaintiff alleged they have never given any implied or express consent for the Defendant to occupy the Said Lands. The Defendant, on the other hand, averred that the Plaintiff’s predecessor in title and the Plaintiff itself knew of and consented to the Temple’s existence and activities on the Said Lands. No contrary evidence was adduced. [39] The sole witness for the Plaintiff testified that he knew of the Temple, and it was noticeable enough that he could see it as he passed by on the main road [see NOP, p.29-30]. DC: So can we now look at- have you been this site these three titles? PWS1: Actually it is at main road. As you go pass you cannot miss it. DC: So have you actually seen the temple? PWS1: I go pass now here and there, we cannot avoid it. It is there. S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of10 this document via eFILING portal [40] It was undisputed fact that the Plaintiff had acquired the Said Lands on or about the year of 1970, approximately 20 years after the Temple was established. By inference, the Temple remained undisturbed by the acquiescence of the Plaintiff. This Court is in full agreement with the Defendant that no evidence has been produced by the Plaintiff to dispute the facts which forms the basis of the Temple’s equity, namely, the Temple’s long history of occupation and the fact that it has served and enhanced the Said Lands and its surrounding community. [41] Instead, the Plaintiff claimed in its defence that it was not aware of the existence of the Temple on the Said Lands. However, the Defendant claimed that the Temple’s uninterrupted occupancy of about 50 years was well within the Plaintiff’s knowledge and consented to through the Deceased. [42] The Defendant had produced several photographic and testimonial evidence that the Temple has been standing since the 1950s and that the community is aware of the Temple’s presence. This is acknowledged and candidly testified by PW1, DW1, and DW3. Indeed, even the Plaintiff’s submissions conceded to the fact that the Temple’s history is undisputed. During cross-examination, PW1 testified that he was aware of the Temple’s presence since late 1990s [See NOP, p.29]. DC: Correct, and it has functioning as a temple all these years and you agree right? PWS1: As I said If I go pass. DC: You cannot miss there? PWS1: Yes DC: Alright. And this has been since 90’s? PWS1: I am not too sure about 90’s because I won’t, I only started going maybe late 90’s [43] PW-1 testified that the Said Lands were part of the Kepong Estates prior to the 1970s, which was subsequently purchased by the Plaintiff including certain other lands in the area [See NOP, pp. 17 – 18]. DC: So this is master title that your late father and the original shareholders purchased isn’t it? PWS1: Yes. S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of11 this document via eFILING portal DC: From Kepong Estate? PWS1: Yes. DC: And the resolution I am moving on from the document now back to B2. Sorry to jump around to get the chronology right. B2 page 298. That resolution dated 8 January 1967 isn’t it, Wong Bin Chen given veto power isn’t it? PWS1: Yes. [44] Thus, if at all the Plaintiff argued that its acquisition of the Said Lands was not subject to the Temple’s rights, the burden is on them to prove this to this Court. The Plaintiff has not produced the Sale and Purchase Agreement with its predecessors in title to confirm or establish that its acquisition was not subject to the Temple's rights. [45] DW1, on the other hand, adduced several photographs of the Temple to which she testified as from the year 1953 to 1959 [see DWS1, Encl. 53, para. 3]. 3. My grandparents and parents told me that when I was four, around 1959, there was a thanksgiving ceremony held at the Temple when the Temple upgraded from wooden planks with attap roof a zinc-roofed with wooden plank building… Since then in 1959, we hold religious ceremonies/celebrations here for the birthday of the deities in the Temple every year. a. Photo of attap roofed Temple and a celebration in year 1953 [see CBOD, Part C, Vol. 6, pg. 704]. The bottom photo at page 704 shows a shirtless person. This was Ng Phor Sung, who later became the chiefs of the Temple. b. The top photo in page 733 from 1959 shows a group of photo of devotees in front of the deities in the top photo. I recognize the persons there as people who lived in that area. [46] Meanwhile, DW-3 also testified the same and was able to identify Ng Phor Sung from the 1959 photo in p. 733 [see NOP, pp. 145 – 146]. DC: Page 704, the print Bundle which is… Miss Ng, could you identify that two men in 18 this photograph? S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of12 this document via eFILING portal DWS3: Can see my point? Ok, on the left with the singlet is my uncle, Ng Too Seng. On the right without a shirt, this is my father. DC: What your father name? DWS3: Ng Fok Sang. [47] Thus, it is clear that the Temple has been there long before the Plaintiff bought the land. There was also other documentary evidence presented, namely: a) DBKL licenses from 1961, 1982, 1985 and 2007 to 2010; and b) Police permits from IPD Sentul dated 04.04.2007 and 21.03.2008. [48] The authenticity of the documentary evidence presented were not disputed by the Plaintiff save for its weight, which the Plaintiff submitted was devoid of merits. The Plaintiff relied on the case of UDA Sentosa Sdn Bhd v. Jonathan A/L Sinnappan & Ors [2021] MLJU 1433 to argue that the documentary evidence of DBKL permits does not establish the Defendant, the Association, and the Temple as licensees. [49] That would be the correct position if the Defendant relied solely on the documentary evidence presented. Instead, the documentary evidence was utilised as corroborative evidence of the narrative of the Defendant’s witnesses of the Temple’s presence and activities and the Plaintiff’s acquiescence. The totality of all these evidence led me to the conclusion that the Defendant here is indeed a licensee coupled with equity. [50] On cross examination, PW-1 begrudgingly accepted that the Temple has been operating as a temple. [see NOP, p.29]. DC: In the documents we shown you a lot of documents from DBKL. PWS1: Yes, I saw. DC: So you accept they have been functioning as temple all these years? PWS1: It cannot be anything else isn’t it, it is a temple. [51] Further down the cross-examination, PW-1 did not deny that DBKL has been granting licences to the Temple to conduct its activities. [see NOP, p. 70] S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of13 this document via eFILING portal DC: And so you accept that all these years DBKL has been authorising the activities, procession, wayang cina so on and so forth that goes on at the temple? PWS1: It is a requirement they have to pay the fee. DC: Yes, but DBKL authorized it. PWS1: Does not mean they authorize, they have to pay a fee [52] The Defendant premised that the above evidence showed the Temple’s undisputed existence and a long heritage beginning from the 1950s. Therefore, the Defendant further submitted that the Temple unrefutably has not only been existing since then, but also has been actively occupying the Said Lands with the Plaintiff’s knowledge, acknowledgement, and participation. [53] The Defendant has established through its witnesses and the documentary evidence its existence and the renovation thereon. The Temple’s equity is strengthened by the renovations carried out by the Temple. The Temple started out as a simple attap-roofed structure built to meet the religious needs of the surrounding local Kepong community in the 1950s. Over the years, it has evolved into a centre of religious activity through community donations which funded the running of the Temple and renovations to its structure (DWS3 p. 8, para 12c). In Sentul Murni (supra), the Court (at p. 32) placed emphasis on the fact that renovations and improvements had been made to the property in question, which strengthened is residents' equitable claim to remain. In the case before me, no evidence has been produced by the Plaintiff to dispute the facts which form the basis of the Temple’s equity - namely, the Temple's long history of occupation, the renovations and improvements, and the fact that it has served and enhanced the Said Lands and its surrounding community. [54] Instead, the Plaintiff claimed in its defence that it was not aware of the existence of the Temple on the Said Lands. With respect, I agree with the Defendant that such an assertion is both incredible and improbable. The Temple had already been erected on the Said Lands at the time of the Plaintiff's acquisition. Even a cursory inspection of the Said Lands would suffice to bring notice of the Temple's existence to the Plaintiff. The size and visibility of the Temple, especially post renovations, render any claim not S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of14 this document via eFILING portal to have known of its existence illogical. As mentioned earlier, PWS1 himself agreed that he often saw the Temple on his way to work. In fact, he has confirmed that the building was unmissable. The natural conclusion is this: the Plaintiff knew or ought to have known of the Temple's existence at the time of its acquisition. The Plaintiff is thus bound, as it acquired the Said Lands from its predecessors in title subject to the Temple's equity. [55] The other void in the Plaintiff’s case is its inaction for almost 50 years. Even if the Plaintiff did not know of the existence of the Temple when it acquired the Said Lands, the Plaintiff must have subsequently become aware of the Temple’s occupation and yet, took no action to remove the Temple. To this the Defendant has argued that even if the initial entry on the Said Lands was unlawful, the Plaintiff’s implied acquiescence made such entry lawful. The Defendant relied on the Court of Appeal’s decision in Tekad Urus Sdn Bhd v Penduduk-Penduduk yang Menduduki Kawasan yang dipanggil Desa Perwira [2004] 2 CLJ 516. To this I agree. [56] Despite accounts from PW-1, DW-1, and DW-3 that the residents of the Said Lands were asked to move into a low-cost flat in the late 1990s, the Temple remained untouched and was undisturbed for over 20 years. PW-1 could not be able to provide a satisfactory explanation as to the Plaintiff’s lack of action to move the Temple. To further, PW-1’s testimony showed that the Plaintiff was disinterested in seeing through the removal of the Temple from the Said Lands which it deemed as squatter [see NOP, pp.6-7]. PC: Obliged My Lord. Mr Yap, I have few additional question to ask you. Mr Yap the Plaintiff’s bought the land sometimes in the year 1970’s. PWS1: Ok. PC: However, the Plaintiff only took action against the temple in 2016. Can you explain why? PWS1: Basically up until year 2000 the company really could not do anything because it has no funds and they were major dispute among the shareholders. And basically no body care you know. Between 2000 and 2016 because in year 2000 we sign a joint S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of15 this document via eFILING portal venture agreement with the developer to develop low cost units for the quarters. And among the purchaser the temples members for example Mr Ng Ah Sang when the other community members they all got units from the land owner and the developer. So because of that we assume everything is ok. I mean that means we are happy because the temple got what they want and we just left it as that. But then later on we found out actually there are still there and they have yet to move out. So that is the reason why in 2016 when we found out they are still there we took legal action because we already satisfied the quarter agreement by giving them low cost unit. PC: Is that all My Yap? PWS1: Yes, correct [57] Counsel for the Plaintiff sought to rely on the High Court case of Cahaya Ideal (supra) to assert that the length of occupation by the Temple is immaterial to its rights. However, the Court in Cahaya Ideal (supra) specifically held (at paragraph 7 of its judgment) that no equity was made out on the facts of that case as there had been no assurance, reliance, or detriment to the defendants. Cahaya Ideal (supra) is therefore distinguishable from this Suit where the equity of the Defendant has been established from the evidence adduced and discussed earlier and to be discussed further later. [58] Likewise, in UDA Sentosa (supra), there was no history of occupation by the defendants under the registered proprietor’s ownership. The registered proprietor discovered about the existence of the defendants upon purchasing the land and took immediate steps to evict. The defendants' witnesses further accepted, under cross- examination, that the defendants were mere squatters without any interest in the land. This is clearly different from our present case whereby the Temple had existed for decades, and the Plaintiff knew about the existence of the Temple all this while. [59] Another case relied upon by the Plaintiff is again materially different from our present case: Tetuan Tokoyaki State Property Sdn Bhd v Sam Kok Sang & Ors [2001] 4 CLJ 97. In that case, the defendant argued that an application had been made S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of16 this document via eFILING portal to obtain permission to remain on the land. The Court held that, it was insufficient to confer an interest in the land. The Court further held that there had been no encouragement on the part of the registered proprietor of the Defendant's occupation or enhancement of the land. In our present case, there has been encouragement and participation by the Plaintiff (through the Deceased). [60] In Valiant Plus Sdn Bhd v Persatuan Pengikut Dewa Ching Lim Shi [2018] 1 LNS 4, the court found that no sufficient words or conduct were found on the facts as no details were provided of the work done allegedly to develop the temple. This is different from our present case where evidence had been led to show that the Temple has expended money and labour to improve and develop the Said Lands including the structure of the Temple and the interior of the Temple to accommodate the Deceased’s deity. [61] Therefore, the Defendant’s primary claim on licensee stands on the long undisturbed existence, and subsequent acquiescence of the Deceased as the Plaintiff’s director (and landowner in the eyes of the Temple’s adherents) that implies that the Temple is allowed to operate as usual is not baseless. In fact, other than the historical establishment of the Temple, the acquiescence of the Deceased has in its totality support my finding in this case. It has supported the position of the Defendant as a licensee coupled with equity. Just as in Sentul Murni (supra), the Deceased (and the Plaintiff) has allowed the Defendant here to stay on the Said Lands. The Deceased, who was a director of the Plaintiff and who was authorised by the Plaintiff to negotiate with the residents and the temples in the vicinity, had involved and participated in the Defendant’s activities and had even entrusted and put a tall and big statute of deity of his in the Temple for the devotees. This is more than positive acquiescence. Thus, it is clear to me that the Defendant here is not squatter simpliciter. It is indeed a licensee coupled with equity. Its stay is licensed by the proprietor of the Said Lands, namely, the Plaintiff. III. Proprietary Estoppel [62] The essence of the Defendant’s counterclaim has to do with the doctrine of proprietary or equitable estoppel. It is a general rule that notwithstanding that a party spends money on the property of another, prima facie he has not acquired a S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of17 this document via eFILING portal proprietary interest in the property. However, there are exceptions to this rule. The doctrine of proprietary estoppel is one of them. [63] Proprietary estoppel finds its origin in the 19th century case of Dillwyn v. Llewelyn [1862] 45 ER 1285 and Ramsden v. Dyson [1866] LR 1 HL 129. It arises in circumstances where an owner of land requests another, or even allows another, to expend money on the land under an expectation created or encouraged by the landowner that he will be able to remain there. The foundation of this form of equitable intervention is to estop one party from enforcing his rights at law in respect of the land when to do so would be unconscionable in the circumstances. To quote Hanbury and Martin, Modern Equity, 16th edn, p. 893: “This doctrine is applicable where one party knowingly encourages another to act, or acquiesces in the other's actions, to his detriment and in infringement of the first party’s right. He will be unable to complain later about the infringement and may indeed be required to make good the expectation which he encouraged in the other party.” [64] The purpose of proprietary estoppel is to refrain, or ‘estop’, any attempt by a legal owner to inequitably go back on guarantees made by them in the course of dealing with another party regarding the owner’s land. Despite earlier and broader statement of principle in Ramsden (supra), in Willmott v Barber (1880) 15 Ch D 96, Fry J stipulated five essential elements which had to be established before the court could restrain a defendant from asserting his legal rights over property (at p.105 & 106): “A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What, then are the elements necessary to constitute fraud of that description? In the first place the plaintiff must have made some mistake as to his legal rights. Second, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant's land) on the faith of his mistaken belief. T Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it, he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of18 this document via eFILING portal conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his Iegal right…” [Emphasis added] [65] The restrictive approach of Willmott (supra) has largely given way to a much broader understanding of proprietary estoppel. In Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 ALL ER 897; [1982] QB 133; [1981] 2 WLR 576, Oliver J restated the requirements of proprietary estoppel (at pp 915-916): “…the recent cases indicate, in my judgment, that the application of the Ramsden v Dyson principle - whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial - requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.” [66] The advantage of proprietary estoppel is that it can help to make sense of, and thereby enforce, the sorts of arrangements which are entered into by laypersons, particularly licences. Although the approach taken in Taylor Fashion (supra) explains the doctrine of proprietary estoppel on the general principle of 'unconscionability", to establish an equity the courts have held that the three key elements of 'assurance', 'reliance', and 'detriment or change of position' must be present (See A-G of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd [l987] AC 114). [67] In order for a landowner to be “estopped” from carrying on a certain act, it must be shown that in the ‘particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of19 this document via eFILING portal allowed or encouraged another to assume to (the denying party’s) detriment’ (See Taylors Fashions Ltd (supra)). [68] Another locus classicus case of proprietary estoppel is best illustrated in Inwards v Baker [1965] 1 All ER 446: Baker Jr. built a bungalow but could not afford the price of a vacant land. His father, Baker Sr. suggested for Baker Jr. to build the bungalow on a spare land he owned, and he did and made it his permanent home. Baker Sr. legally owned the land and when he died, his will, which was made before the construction of the bungalow, left the land to the plaintiff, Inwards. Inwards then brought proceedings to recover possession of the bungalow. The Court of Appeal of England held that Baker Jr. acquired, in equity, a right to occupy the land for life and this right was in principle binding against third parties who had notice of the equitable right. [69] The decision of Inwards v Baker was examined thoroughly locally in the case of Cheng Hang Guan & Ors v. Perumahan Farlim (Penang) Sdn Bhd & Ors [1993] 3 MLJ 352 in the judgment of Edgar Joseph Jr SCJ at pp. 405 and 407. “Proprietary estoppel is one of the exceptions to the general rule that a person who spends money on improving the property of another has no right to claim reimbursement or any proprietary interest in property. (See, e.g., Ahmad Yar Khan v Secretary of State for India in Council 55.) Unlike promissory estoppel, proprietary estoppel, when it operates, is permanent in its effect and it is also capable of operating positively so as to give a cause of action. (See Denny v Jensen 56.) … I say so because even if such a person builds or improves the land of another knowing he was doing so on land belonging to another, there will still arise an equity in him if the landowner led such person to expect to be allowed to stay there. The case usually cited for this proposition is Inwards v Baker at pp 36- 37, where a father owned land and invited his son to build a bungalow on it. This was done partly at the son's expense, and the son lived in the bungalow. When the father died, the title to the land passed, under a will made before the land was bought or the bungalow built, to the father's mistress and other children.” [Emphasis added] S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of20 this document via eFILING portal [70] At p. 406, Edgar Joseph Jr SCJ, framed his judgment to follow the conditions of a proprietary estoppel to be met: “It was argued by counsel for the defendants on the authority of Brinnard v Ewens, that for this sort of estoppel, four conditions have to be met: (1) the claimant must have incurred expenditure or otherwise acted to his detriment; (2) the claimants must have acted in the belief that they either owned or would obtain a sufficient interest in the property to justify the expenditure; (3) the claimants' belief must have been encouraged by the landlord; and (4) there must be no bar to the equity such as the contravention of any statute.” [Emphasis added] [71] To closely examine and analyse the case before me, the 3 key elements of a proprietary estoppel will be discussed in term. Representation or Assurance [72] It is trite law that no estoppel ‘equity’ will arise unless the claimant can establish that the legal owner of the land made a representation or created or encouraged an expectation that he has presently entitled (see Re Basham (Decd) [1987] 1 AII ER 405), or would become entitled, to an interest in the land. An assurance may be given 'actively' through the acts of the legal owner or ‘passively’ through his silence and failure to disabuse the claimant of his belief that he is entitled to an interest in the land. [73] At the outset, it is apt to note that the verbal promise per se cannot afford a right that circumvents the right of the registered owner. On the other hand, the verbal promise of the Deceased demonstrated together with his actions and inaction can be cause of an equitable right being accorded to the Defendant. [74] On this point, DW-1 testified and corroborated by DW-3 that there were promises made by the Deceased to the effect that the Temple was being able to utilise S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of21 this document via eFILING portal and enjoy occupation of the Said Lands. Also, there was evidence of the Deceased’s active participation in the Temple’s activities and participating in the Temple’s affairs which was even admitted by PW-1 himself. [75] The Plaintiff seemingly was unable to rebut this as PW-1 was unable to provide affirmation or denial of the meetings he had with the Deceased in the Said Lands [see NOP, p.51]. DC: Now my instructions are Mr Yap at this meeting somebody with the name Yap was there? PWS1: Ok. DC: And my instructions are it was you? PWS1: I am sorry I cannot remember. I really cannot remember. DC: Did you never go with Mr Wong to meet the residence on the land? PWS1: Frankly never, I have never totally believe I have never been with him. [76] In contrast, in both her witness testimony and in open court, DW-1 testified that PW-1 was the individual that she met in the relocation meetings [see NOP, p.81]. DC: So, the only other question is therefore, paragraph 4 she talks about Ah Yap, could you please Mr Yap remove your mask is this the person that you met in the 1990s? DWS1: Yes DC: Yang Arif, the witness has identified Mr Yap as the person she met in the 1990s. [77] I cannot safely accept PW-1’s testimony that he has no knowledge of the situation relating to the Temple and the Said Lands when there are witnesses testifying that he either in name or in person have attended matters relating to the Temple. Also, it is undeniable that the Plaintiff knew all along the existence of the Temple and, for near to 50 years, had taken no action to evict the Temple. S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of22 this document via eFILING portal [78] However the case maybe, there is glaring evidence that the Deceased had rendered his support for the Temple. Besides, he had even involved and participated in the Temple’s activities. As mentioned earlier, he even placed his deity in the Temple. In DW-2’s short witness statement (Encl. 54), he testified that the late caretaker asked for his help to transport a statute of a deity belonging to the Deceased from his office in Jalan Ipoh to the Temple. In open court, DW-2 was able to testify and identify the statute of the deity [see NOP, pp. 134 – 135]. DC: Yang Arif I asked that the witness statement taken as evidence in chief. I only have one additional question which is at paragraph 7 just to identify the photograph. Bundle B6 page 736. My Lord if it is referred could I also refer to B8 as well most recent photograph and clearer photograph. I think there is a colored version in witness table. MAH: Page? DC: B8 page 743. So, Mr Tan do you recognize which is the deity that you transported to the temple, Can show up, naik atas and tunjuk kepada Yang Arif? DWS2: Witness showing. MAH: Right hand side DC: of page 736 [79] Thus, the existence of the representation or assurance here is obvious. What remains in issue is what has actually been promised. This shall be discussed shortly after. Reliance [80] Reliance occurs where the representee has changed his position and suffered a detriment because of the assurances received from the representor. This is effectively a requirement of causation: the change of position had to follow from a representation by the representor (see Gillett v Holt [2001] Ch 210). [81] There was not much attack or cross-examination to cast doubt on the testimony of such reliance in our present case. As a result of this arrangement, DW-3 testified S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of23 this document via eFILING portal that the Temple incurred expenditures and had to renovate the Temple to house the Qian Shou Guan Yin deity at the Deceased’s request (see Encl. 52, para 19). The expenditure included installation of floor tiles and the front portion was upgraded to a half plank and half cement wall building (Encl. 52, para 21). [82] It is without doubt that reliance has been placed by the representee on the representation made by the representor and the representee have altered its position therefrom. Detriment [83] The Defendant submitted that not only the Temple accepted and relied on the Deceased’s promises, but also it gave good consideration for the Temple to house the Deceased’s deity, Qian Shou Guan Yin in the Temple. [84] According to the Defendant, the costs, and efforts of renovations to the Temple were suffered by the Temple in order to facilitate the housing of the Deceased’s deity. It is clear that the Defendant has suffered detriment in reliance of the promise made. Again, this is undeniable. [85] To conclude, I find that the Defendant had fulfilled the conditions of a proprietary estoppel based on the evidence shown. Firstly, the Defendant had been promised by the Deceased that the Temple could continue occupying the Said Lands. This is further buttressed by the active participation of the Deceased, as the Plaintiff’s director, in the Temple’s activities and inaction of the Plaintiff to challenge the said occupation. Secondly, based on that promise, the Defendant and the Association had expended money and labour in improving the Temple as evidenced through photos throughout the years. Thirdly, the Deceased had, through his active participation, acquiesced and encouraged the improvement of the Temple. Consequently, the Defendant cannot be regarded as squatter simpliciter and thus is entitled to equity. [86] I therefore find that the Plaintiff is estopped to deny the Defendant’s equity on the above basis and that Defendant is rightfully a licensee coupled with equity. The Defendant in our present case is not squatter simpliciter. This is also supported by the fact that the Defendant Temple was never listed in the squatters agreement prepared S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of24 this document via eFILING portal by the Plaintiff. By the fulfilment of all 3 elements of proprietary estoppel: representation, reliance and detriment, the Plaintiff is also estopped from denying the right of the Defendant to be reimbursed. IV. Oral Contract to Allocate Land to the Temple [87] At the same time, I am not persuaded by the Defendant’s arguments that the Defendant may counterclaim to remain forever or for the Plaintiff to provide a land to transfer and rebuild the Temple on the promise of the Deceased to allocate and transfer the Temple to a new land. To avoid any confusion, it is my finding that there are 2 separate promises in issue here: i) the promise to occupy and ii) the promise that a piece of land will be given/ allotted to the Defendant for the relocation purpose. The first promise has been dealt with earlier and thus is clear to be operative to estop the Plaintiff from denying the Defendant’s position as a licensee coupled with equity in the Said Lands. It is, however, my finding that the latter is not established in our present case. [88] The only evidence we have for that (the second promise) is the testimony of DW-1 who testified that the Deceased had made promises to the late caretaker that he would search for new plot of land for the Temple [see Encl. 53, para. 6]. 6. During these meetings, the relocation committee of the residents and the Temple was discussed. …The sequence is as follows: a. … b. … d. He would always tap the late Ng Phor Sung’s shoulder during and after the Relocation Committee meetings and say in Hokkien ‘my cousin (meaning the late Ng Phor Sung), I will find a suitable place on the land to relocate the Temple’. He referred to Ng Phor Sung as his cousin because our ancestors were all from the Huang clan in China. [89] There is no other collaborating evidence to that. The Defendant attempted to have DW-3’s testimony to corroborate this when she testified at Encl. 52, para. 23 that she was told by her late father that the Deceased made promises to the Association S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of25 this document via eFILING portal to allocate and transfer a piece of land to the Temple. However, I agree with the Plaintiff that this is hearsay. No further evidence has been tendered to collaborate this. [90] The testimony by DW-1 is not without its lack. The failed attempt by the Defendant to establish this contract can be analysed through the DW-1’s cross- examination regarding the minutes of the meetings [see NOP, pp. 110, 112, and 116]. PC: Madam Ng my question to you is that it is not written, would you agree with me that there is nothing stated in the minutes very specific question Mr Leong if it is not written would you agree with me that there is nothing stated in the minutes? DWS1: Not written I don’t know but it was mentioned. It was mention by him. He mention but I don’t know if he didn’t read and I illiterate. … PC: Obliged My Lord. Mr Leong my challenge is since it is not stated in the minutes of the meeting, I am suggesting to Madam Ng that it is not stated agree or disagree, Not stated by Wong Bin Chen, not mention by Wong Bin Chen? DWS1: Disagree … PC: And when Wong Bin Chen said he will, Sorry My Lord I will retract that and I will rephrase it. Now, when you say Wong Bin Chen are that it is a Plaintiff say that not Wong Bin Chen say, that he will find a land. Do you have or do you know to be fair of any documents from the Plaintiff says that they will give a piece of vacant land to the temple? DWS1: It was actually mentioned by Wong Bin Chen the land owner. PC: Yes I understand Madam Ng but I am asking for documents? DWS1: No documents, just mentioned orally. [91] I find that the evidence adduced is unconvincing and vague. Even though DW- 1 had provided testimony of the alleged oral contract between the Deceased and the Defendant, DW-1 was not fore coming in many other questions quoting the reason S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of26 this document via eFILING portal that she is illiterate and she cannot remember anymore. On the other hand, DW-3 was unable to corroborate DW-1’s testimony [see NOP, pp. 198 – 199]. PC: Ok, fair enough, all right. Now, again, if you look at statement 15, ok, you just go through it, all right. My challenge to you, Miss Ng, is very simply this, whatever you have stated with regard to the meeting on the 18.10.1996, you were not personally involve, agree? DWS3: Yes, agree. [92] It is undeniable that, as put by the Plaintiff counsels to DW-3, there are other witnesses who could be called to collaborate and who are still alive. However, the Defendant has decided not to call any other witnesses to collaborate and confirm this. The Defendant contended that the minutes contained deliberations and discussions of the Relocation Committee in 1999 to show that there was significant consideration of the Temple, and that by inference, is sufficient documentary proof that there was a promise made by the Deceased to the Association. It is noteworthy to stress here that the minutes show that this discussion concluded into an offer by the Plaintiff to the Defendant to relocate the Temple to a shop lot and not a piece of land. [93] Notwithstanding, it was made known to the Plaintiff, clearly through the testimonies of PW-1, DW-1, and DW-3, that the Relocation Committee had rejected this offer citing religious reasons i.e., that a deity cannot be stepped on (by occupants of the upper floors) and that a deity must have its own individual, a standalone building. What happens after this rejection is devoid of any contemporaneous explanation by both the Plaintiff and the Defendant: i) there was no evidence of a counteroffer or any further discussion, ii) the Plaintiff only commenced eviction proceedings in 2016 and iii) the Defendant maintained its occupation. There is no other records or evidence indicating the offer or counteroffer of a piece of land by the Plaintiff nor has the acceptance of it by the Defendant been shown. No resolution whatsoever has ever been passed for this. Hence, this (second) promise is uncollaborated and remains doubtful and vague to this Court. S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of27 this document via eFILING portal [94] It was also testified in DW-3’s witness statement in Encl. 52, para. 26 that the Defendant made no effort to look for an alternative property and solely relied on the Deceased’s promise. “The Temple then continued to operate on the Land with the Plaintiff’s permission. The Plaintiff acknowledged the existence of the Temple. We relied on the Plaintiff’s promise, through Wong Bin Chen, and continued to improve the Temple. We did not look for alternative property ourselves as Wong Bin Chen promised to give us a piece of land. The Temple continued to occupy the land and the Plaintiff did not take any hostile approach against us when Wong Bin Chen was alive. However, he passed away in 2013.” [95] The key difference between the issue of licensee coupled with equity and the issue of oral contract to allocate land for transfer (namely the difference between the 1st and the 2nd promise) is that there must be further expenditure following the alleged oral promise of the Plaintiff through the Deceased. These expenditures, if established, would strengthen the evidence of expectation and representation that was made by the Plaintiff to the Defendant. [96] I find guidance in the Court of Appeal decision of SS Saw v Siew Heen Yuen & Ors (Siew Boon Hong @ Shandran & Ors, interveners) [2009] 2 MLJ 214 in the decision of Zaleha Zahari JCA (as she then was) at pp. 230 and 231: “Tenancy with equity or equitable estoppel thus only arises if there is evidence that the plaintiff had required any of the defendants or interveners/defendants or allowed them to expend money on the Said Lands under an expectation created or encouraged by him that they would be able to remain there. In such a situation the landowner is prevented from taking any action contrary to that expectation. In the event that a tenancy coupled with equity is established, the landowner must first satisfy that equity before he can recover the land. What is the evidence before the court? There is no evidence of the defendants nor the interveners/defendants having expended money on the inducement or encouragement of the plaintiff.” [Emphasis added] S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of28 this document via eFILING portal [97] Likewise in our present case, there has not been any evidence by the Defendant to perform anything to procure the proposed land. There have not been any documents to confirm this or to the very least seeking to confirm this. There has not been any documents or discussion about the location, the costs and premium or any incidental costs. What is clear to me is that for this second promise (that a piece of land would be allotted by the Plaintiff to the Defendant for them to move to) the sole statement by DW1 that she has heard of it does not fit or correspond with the contemporaneous documents. The documents (the minutes of the meetings) had no record of such generous offer. There has not been any witness, including the minutes taker(s)/ recorder(s), being called to explain or confirm the lack of such record of this offer. Also, the conduct of the Defendant all these years do not support the existence of this offer of land for the Temple to relocate to. [98] Therefore, with the lack of corroborating evidence on the Defendant’s part to show that there was further expenditure or effort to procure the promised land, I cannot agree with the Defendant’s case that the oral contract to relocate to a new land has been established or stands enforceable. Henceforth, the Temple cannot remain in its current location and must be relocated but with its equity satisfied and honoured. V. Notice [99] Having said that, the Defendant submitted that the Notice of Eviction dated 22.08.2016 relied by the Plaintiff as issued by the Plaintiff’s solicitors is bad in law because (1) it is stale, and (2) the Plaintiff can only evict the Temple if its equity is satisfied, whereas the Plaintiff submitted the contrary position. [100] I find guidance in the case of Majlis Perbandaran Pulau Pinang v Syed Ahmed a/l MM Gouse Mohamed [2007] 1 MLJ 42 in the decision of Gopal Sri Ram JCA (as he was then) at p. 44: “[2] The type of ownership claim made by the respondent in the present case is not a stranger to our law. If you look at the early cases of ejectment decided by our courts you will find such examples. Land is owned by X and is rented out to Y with permission to construct a building (usually a house) on it. Occupation is permitted so long as the land rent is paid. So you have a situation where the land belongs to one person and the building belongs to another. The S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of29 this document via eFILING portal law places this type of relationship in the category of a licence coupled with an equity. The landowner may give notice to terminate the tenancy of the land. But he cannot evict the tenant without satisfying the latter’s equity. This is usually achieved by the payment of reasonable compensation (see Khew Ah Bah v Hong Ah Mye [1971] 2 MLJ 86; Pembangunan Darjat Sdn Bhd v Wong Jie Tshung & Ors [2000] 2 MLJ 212).” [Emphasis added] [101] From Syed Ahmed MM Gouse (supra), it is apparent that it is only a requirement for the landowner to give notice to terminate the existing relationship beside the requirement about satisfying the licensee’s equity. The Plaintiff is correct to point out that there are no provisions under the law which stipulates a particular mandatory requirement of the manner for the service of the notice prior to any action via writ. There is not even any mandatory form of notice for the termination of license. In our present case, this notice was rightfully given prior to the O.89 Application. The notice was indeed a notice to evict. No doubt that there was no specific mentioning about the revocation of licence in it. However, the purpose and intention of the notice is clear: that the Defendant was to vacate the Said Lands. Any license (if any) was terminated/ revoked therero. Hence, the notice has served its purpose. No doubt that O.89 Application was later on dismissed by the Court. However, it was dismissed because the Court was at the view that it was not suitable to be determined through originating summons. It must be ventilated through a writ action. Hence, the filing of this Suit. Thus, the notice given has never staled. It was and is still a valid notice. The notice basically has notified the Defendant that the register proprietor, namely the Plaintiff, has requested the Defendant to more out and to deliver the vacant possession of the Said Lands to the Plaintiff. The licensee must move out of the Said Lands after this notice. Nonetheless, it is my finding that this is subject to the licensee’s equity being fulfilled and satisfied. Hence, to facilitate and expediate the matter, I order that the Defendant is to move out of the Said Lands subject to the Defendant’s equity being fulfilled. As vividly mentioned by Gopal Sri Ram JCA (as he then was) in Syed Ahmed MM Gouse (supra), this is eventually done by way of reasonable compensation to the Defendant. S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of30 this document via eFILING portal [102] For that reason, I find that the notice of eviction dated 22.08.2016 was a proper and sufficient notice to inform the Defendant that the license is resiled or revoked by the Plaintiff. Subject to its equity, the Defendant must therefore move out of the Said Lands by 1st February, 2023. VI. Res Judicata [103] I now address the issue of res judicata briefly, lest the above judgment be viewed as academic. On this issue, I wholly agree with the Plaintiff’s submission that the decision in the O. 89 Application did not effectively ventilate the issues of the current suit. I find that the decision of the Supreme Court case of Hotel Ambassador (M) Sdn. Bhd. v. Seapower (M) Sdn. Bhd. [1991] 1 CLJ (Rep) 174; [1991] 1 CLJ 656 is directly on point and factually similar to the current case. [104] In Hotel Ambassador (supra), the respondent took out an Originating Summons to claim possession of a certain property under O. 89 of the Rules of High Court 1980 which was heard before Wan Adnan J. The learned High Court judge dismissed the application without deciding the status of the appellants. Later, the respondent took out a writ against the respondents and sought for a relief for a declaration of tenancy over the land. [105] The Supreme Court decided that the earlier decision of Wan Adnan J did not have any finality to the status of the parties and hence, did not trigger the operation of res judicata in the subsequent writ proceedings. Hashim Yeop Sani CJ at pp. 178 and 179 held that: “In our view the earlier decision of Wan Adnan J must be understood in its proper context. What was before the learned Judge then was an application for possession under O. 89 of the Rules of the High Court. It was a summary procedure. Because of the point raised by the appellants purporting to be tenants there and that they were in lawful occupation of the said property, Wan Adnan J declined to proceed under O. 89 and dismissed the application. It must be understood that he did not finally decide the status of the appellants. What he decided was simply that on the facts as shown to him a summary procedure was not proper. S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of31 this document via eFILING portal It would appear at the outset of the hearing before Wan Adnan J Counsel for the tenants submitted a preliminary point that the summary procedure under O. 89 was not available in the circumstances of the case. The learned Judge agreed and dismissed the application with costs. The observations made by Wan Adnan J in his grounds of judgment that the tenants were "tenant holding over" were mere observations and made obiter and not a finding arrived at on the merits. In fact, in his careful judgment Edgar Joseph Jr. J considered the ratio decidendi of the judgment of Wan Adnan J and we agree that the latter's judgment was confined to the facts before him and limited to the proposition that since the occupants claimed they were tenants holding over a summary procedure under O. 89 was not proper. Therefore, the question of res judicata does not really arise.” [Emphasis added] [106] Further, in Kaliamah Rajan & Ors V. Supritendan Wooi Kooi Cheang, Ketua Polis Daerah Tampin, Negeri Sembilan & Ors [2022] 4 CLJ 789, I have observed the following regarding res judicata: “[41] The exception to the Henderson rule (as enumerated by Wigram VC in Henderson v Henderson (1843) 3 Hare 100) is applicable in this matter. The implication is clear that for the Henderson rule to be operative, the subject matter to which it properly belongs must itself have been rendered final and conclusive and on the merits in the earlier suit. In other words, unless it can be shown that there has been a final and conclusive decision on the merits in respect of the subject of litigation before the original court, there cannot be a Henderson abuse of process plea in respect of the non- litigated subject matter in the subsequent proceedings. … [45] The 2018 Suit was dismissed due to the limitation period set out in PAPA. The courts had not deliberated on the merit of the claims. Thus, in this present suit, I am of the view that the issue concerning compensation sought by the Plaintiffs in Enclosure 1 due to the breach of their constitutional rights has never been heard and decided before by the earlier courts in the 2018 Suit and thus it is not barred by the principle of res judicata.” [Emphasis added] S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of32 this document via eFILING portal [107] Following the above authorities, I find no rhyme nor reason to bar the determination of the Plaintiff’s case in this Suit because the doctrine of res judicata is not applicable here. The issues in our present case have never been ventilated in the O.89 Application. D. Conclusion [108] To sum up, the Defendant is not a trespasser and/or squatter as claimed by the Plaintiff. The Defendant’s status is a licensee coupled with equity. The Plaintiff is estopped from denying this position of the Defendant. This is evidenced by both documentary and testimonial evidence that the Temple has enjoyed quiet occupation for the last 50 years. Within those years, even after its devotees were relocated to other housing arrangements by the Plaintiff itself, the Temple remains untouched and undisturbed. Not only that, the Plaintiff, through the Deceased’s words and actions, had encouraged the Defendant and the Association to expend money and labour to improve the Temple. Only after almost 50 years, the Plaintiff attempted to take possession of the Said Lands. For those reasons, this Court cannot hold the Defendant as squatter simpliciter, but must give equity to its position as a licensee. [109] Notwithstanding the equitable right of the Defendant, there is insufficient corroborated evidence to support the Defendant’s claim that there was a contract between the Plaintiff (through the Deceased) and the Defendant to allow the Temple to remain forever or to be provided with another plot of land to relocate. For this reason, the Plaintiff has every right to repossess the land as its rightful owner, but not without first honouring and satisfying the equity of the Defendant. [110] On the issue of res judicata, I wholly agree and adopt the decision of the Supreme Court in Hotel Ambassador (supra) and I find that res judicata is not applicable. [111] Thus, I make the following orders and declarations: S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of33 this document via eFILING portal a) A declaration that the Defendant does not have any interest and/or rights under the NLC per se in respect of the Said Lands; b) A declaration that the Defendant i s a licensee coupled with equity on the Said Lands occupied by the Temple; c) A declaration that the Plaintiff be given vacant possession of that portion of the Said Lands which is being occupied by the Defendant and/or the Temple; d) An order that, subject to its equity be satisfied, the Defendant is to relocate the Temple and deliver vacant possession to the Plaintiff on or before 01.02.2023; e) An order that the Defendant do all that is necessary to remove the said Temple from the Said Lands and/or alternatively that the Plaintiff be given permission to take necessary steps to remove the Defendant and/or said Temple from the Said Lands after 01.02.2023 ; f) The parties be given liberty to apply for any ancillary reliefs that are deemed fit and proper; and g) Parties are to bear their own costs. Dated: 18th July, 2022 Dr John Lee Kien How @ Mohd Johan Lee Judicial Commissioner High Court Malaya Kuala Lumpur For the Plaintiff: Oii Chih Jek, Khaw Eng Khoon, & Wong Chee Wai Messrs. Chang.Haryaty Advocates & Solicitors For the Defendant: K. Shanmuga, Ng Chek & Kee Hui Yee Messrs. Ng Chek & Co. Advocates & Solicitors Table of Authorities Case A-G of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd [l987] AC 114 S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of34 this document via eFILING portal Cahaya Ideal (M) Sdn Bhd v Orang-Orang Yang Mengenali Diri Sebagai 'Ponga' & Ors [1999] 3 CLJ 257 Cheng Hang Guan & Ors v. Perumahan Farlim (Penang) Sdn Bhd & Ors [1993] 3 MLJ 352 Dillwyn v. Llewelyn [1862] 45 ER 1285 Gillett v Holt [2001] Ch 210 He-Con Sdn Bhd v Bulyah Ishak & Anor and another appeal [2020] 7 CLJ 271 Hotel Ambassador (M) Sdn. Bhd. v. Seapower (M) Sdn. Bhd. [1991] 1 CLJ (Rep) 174; [1991] 1 CLJ 656 Inwards v Baker [1965] 1 All ER 446 Kaliamah Rajan & Ors V. Supritendan Wooi Kooi Cheang, Ketua Polis Daerah Tampin, Negeri Sembilan & Ors [2022] 4 CLJ 789 Low Huat Cheng & Anor v Rozdenil bin Toni and another appeal [2016] 5 MLJ 141 Majlis Perbandaran Pulau Pinang v Syed Ahmed a/l MM Gouse Mohamed [2007] 1 MLJ 42 Mercantile Bank Ltd v The Official Assignee of the Property of How Han Teh [1969] 2 MLJ 196 National Provincial Bank Ltd v Hastings Car Mart Ltd [1965] UKHL 1 Pembangunan Darjat Sdn Bhd v Wong Jie Tshung & Ors [2000] 2 MLJ 212 Ramsden v Dyson (1866) LR I HL 129 Re Basham (Decd) [1987] 1 AII ER 405 Samuel Naik Siang Ting v. Public Bank Bhd [2015] 6 MLJ 1 Sentul Murni Sdn Bhd v Ahmad Amirudin Bin Kamarudin & Ors. [2000] 4 MLJ 503 Sidek Hj. Muhamad & Ors. v The Government of The State Of Perak & Ors. [1982] CLJ Rep 321 SS Saw v Siew Heen Yuen & Ors (Siew Boon Hong @ Shandran & Ors, interveners) [2009] 2 MLJ 214 Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 ALL ER 897; [1982] QB 133; [1981] 2 WLR 576 Tekad Urus Sdn Bhd v Penduduk-Penduduk yang Menduduki Kawasan yang dipanggil Desa Perwira [2004] 2 CLJ 516 Tetuan Tokoyaki State Property Sdn Bhd v Sam Kok Sang & Ors [2001] 4 CLJ 97 UDA Sentosa Sdn Bhd v. Jonathan A/L Sinnappan & Ors [2021] MLJU 1433 Valiant Plus Sdn Bhd v Persatuan Pengikut Dewa Ching Lim Shi [2018] 1 LNS 4 Webb v Paternoster [1619] 2 Roll. Rep. 143 Willmott v Barber (1880) 15 Ch D 96 Statutes Section 340, National Land Code 1965 Treaties Hanbury and Martin, Modern Equity, 16th. Ed Teo Keang Sood, Role Of Equity And The Application Of English Land Law In The Malaysian Torrens System, 22 Canterbury Law Review (2016) 40 S/N p9lZHozgdE2TL/aim3ikEQ **Note : Serial number will be used to verify the originality of35 this document via eFILING portal