Lau Tian Boon (Sebagai Setiausaha Dan Wakil Bagi Kwang Kheow Seah, Bagan Serai, Krian (No. Pertubuhan: 1272/63 Perak ) MAJESTIC MEMORIAL PARK (BS) SDN BHD

AB-22NCvC-14-06/2019 Kand. 114 03/03/2024 00:33:44 IN THE HIGH COURT OF MALAYA AT TAIPING IN THE STATE OF PERAK DARUL RIDZUAN MALAYSIA GUAMAN SIVIL NO: AB-22NCvC-14-06/2019 BETWEEN PLAINTIFF LAU TIAN BOON (NO. K.P. 740111-08-5515) SEBAGAI SETIAUSAHA DAN WAKIL BAGI KWANG KHEOW SEAH, BAGAN SERAI, KRIAN, PERAK (NO. PERTUBUHAN 1272/63) AND DEFENDANT MAJESTIC MEMORIAL PARK (BS) SDN BHD (NO. SYARIKAT 689460-H) 1 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal JUDGMENT Preface [1] It is in evidence that the plaintiff is an association with the name Kwang Kheow Seah (KKS) and the defendant is a company, Majestic Memorial Park (MMP). Lau Tian Boon who is cited as a party and appeared as witness in this case is a committee member and secretary of KKS. The case was heard at Taiping High Court which saw twelve (12) witnesses for the plaintiff, while the defence put up four (4) witnesses. [2] To enable the case to be contextualised, a brief background is essential. This case revolved around these two entities, KKS an organisation set-up to see well-being of the Chinese community and oversee running of a columbarium. On the other hand, MMP is a company involved in providing funeral and internment services. In the month of April 2006, both entities entered into a joint venture agreement (JVA) on the running of a columbarium on Lot 7654, at Bagan Serai, Perak. The defendant at its own cost and expense was to build and manage a columbarium on the said land. Their relationship had turned sour, resulting in this civil suit. As mentioned by Lau Tian Boon (SP11), the land at Lot 7654 is reserved for the 2 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal Chinese community, and the columbarium is specifically to cater for the descendants of Kwang Kheow Seah. Claim by plaintiff [3] On or about 14.4.2006, KKS and MMP entered into the JVA to build and manage a columbarium on Lot No. 7654 Mukim Bagan Serai, District of Krian. The said land is gazetted as Rizab Tanah Perkuburan Cina vide Gazette Notification (G.N.) No. 6754 dated 30.8.1932. [4] Clause 4.01 (c) of the JVA specifies – The Company shall, within two (2) years from the date of this Agreement, at its entire own cost and expense, construct and complete in a good workmanlike manner the Columbarium together with Facilities, Infrastructure and Amenities in compliance with generally recognized building standards and practices and in accordance with the Building Plans. According to clause 2.01, the Columbarium is defined as the buildings which shall accommodate at least 10000 lots as shown in the Building Plans. As a result of a site visit by the plaintiff on or about 4.7.2018, it was discovered that only a columbarium of 2400 lots was built. Since the 3 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal defendant had failed to build a columbarium containing 10000 lots on the reserved land, the plaintiff had alleged that the defendant had breached clause 4.01 (c) of the Agreement. As at 4.7.2018, the defendant had also failed to make payment of RM174,189.60 to KKS. Pursuant to the statement of account prepared and issued by the defendant to KKS, the payment due for the year 2015 was RM90,442 and for the year 2016, RM83,747.60, adding up to RM174,189.60. [5] The payments are due to be paid pursuant to clause 6.01 of the agreement. Due to non-payment, the defendant is said to have breached clause 6.01 of the agreement. Notices of demand dated 20.7.2018 and 12.9.2018 were issued to the defendant pursuant to clause 5.01 of the agreement in order for the defendant to rectify its breach of clauses 4.01 (c) and 6.01. It was stipulated in the said notices, if the rectification is not made within 30 days from the date of receipt of the notices of demand, the agreement would cease to be of effect. The defendant is said to have received those notices and due to their inaction, the agreement was terminated on 13.10.2018 or 18.10.2018, pursuant to clause 5.01. [6] Consequently, the plaintiff filed this civil suit against the defendant, as it had failed to deliver vacant possession of the land to KKS, on 4 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal which the columbarium is situated. The defendant had paid the amount of RM174,189.60 as claimed by KKS vide cheque on 30.6.2017 which was received by KKS, but the cheque was returned with an accompanying letter dated 3.1.2019, as it wished to have the agreement terminated. Hence, the agreement stood inoperable despite the fact KKS had initially received the payment made by MMP. [7] In its writ and statement of claim dated 12.6.2019 the plaintiff had claimed the following relief: • A declaration that the agreement dated 14.4.2006 between KKS and the defendant was terminated on 14.10.2006 or alternatively on 13.10.2018 or 18.10.2018 or any other date as to be decided by the court; • A declaration that KKS is entitled to vacant possession of the reserved land with Lot No. 7654 at Mukim Bagan Serai in the District of Kerian which is gazetted as a place for internment of the dead of the Chinese community vide G.N. 6754 dated 30.8.1932; • The defendant to deliver vacant possession of the said reserved land forthwith; 5 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal • It is also to return to KKS the original sale and purchase agreements involving the sale of columbarium lots built on the reserved land, which was executed pursuant to clause 4.05 of the agreement, within 14 days from the date of order by this court; • To also return the statement of account prepared by them on the sale of those lots, within 14 days from the date of order by this court; • The defendant is also to make payments to KKS comprising 20% of the price listed (without discount) for the sale of columbarium lots due to be paid pursuant to clause 6.01 of the agreement, prior to its termination, within 21 days from the date of order by this court; • Likewise, for the sale of columbarium lots, post termination of the agreement, within 21 days from the date of order by this court; • It is to prepare and submit to KKS the statement of account on the sinking fund, as stipulated in the agreement set up pursuant to clause 7.02 and subsequently hand over its control and management to KKS, within 14 days from the date of order by this court; 6 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal • General damages arising out of the failure by the defendant to deliver vacant possession of the land on which the columbarium is built, which has to be assessed; • The defendant is prevented from carrying out or executing any control, management or operation of the columbarium and sale of its lots. • Interest and costs. Defence by defendant [8] Aside from denying the claim made by plaintiff, the defendant in its defence has pleaded: • It has completed building the columbarium in accordance with the building plan agreed upon and 2400 lots mentioned by the plaintiff are lots for the purpose of containing the ashes of the dead which was built on the basis of its requirement, which is whenever there is a need from the purchasers to acquire the said lots; • It has built the columbarium in accordance with the agreed plan which would contain 10,000 lots; • The building plan as signed by the plaintiff, could contain the 10,000 lots and the said plan would not show all the 10,000 lots 7 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal need to be fastened to the said columbarium, all at the same time; • It could not pay the plaintiff as required, because since the year 2014, the defendant company was facing an internal dispute, whereby its directors were dragged to court and the company accounts were in a state of disarray, as one of the former directors had carted them away. As such, the defendant had lost its accounting records, thus unable to pay the plaintiff in accordance with the agreement. • The Committee members of KKS at that material time had agreed for the payment to be made on settlement of the internal dispute faced by the defendant company. The case involving the defendant company came to its fruition only on 2.10.2017 when a consent judgment was entered into. All the same, in the year 2017, there was a change in the committee members of the plaintiff KKS, whom had claimed from the defendant for payment due and payable, without considering the agreement made by the former committee members; • After a negotiation, the defendant was allowed to pay the arrears of payment for the year 2015 and 2016 within a year from 18.4.2017. As consideration, the defendant is required to pay the plaintiff on a monthly basis for the sale of columbarium lots sold 8 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal from the year 2017 and not on a yearly basis, as stipulated in the agreement. Consequent to that, the defendant commenced monthly payments for the year 2017 and 2018. As for arrears of payment for the year 2015 and 2016, the defendant had paid RM50,000 on 18.4.2017 vide PBB cheque no. 141421 and RM20,000 on 18.5.2017 vide PBB cheque no. 141431. But the plaintiff chose to return the said payment of RM70,000. Thereafter, the plaintiff sued the defendant for the arrears of payment for the year 2015 and 2016, despite having contravened the Settlement Agreement entered into between the plaintiff and defendant; • The defendant claims that the plaintiff is estopped from doing so, to renege from the said settlement agreement; • The plaintiff had refused to accept the payment of RM174,189.60, as well as payment for the arrears due for the year 2015 and 2016, for the sole reason that they do not wish to continue with the JVA, save for if the payment to be made was as an accrued amount under the agreement; • Although the plaintiff had claimed that the JVA had been terminated, it had continued to accept instalment payments from the defendant for the months of October, November and 9 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal December 2018, as if the settlement agreement entered into amongst them was in force; • Termination of the Agreement is considered by the defendant to be invalid, and it smacks on mala fide, as the plaintiff has been unjustly enriched, as it was the defendant whom had invested a sum of RM2.7 million to build the columbarium together with its infrastructure and facilities, and sadly the plaintiff did not contribute capital but now wishing to deny the defendant of the profits derived from the JVA; • In view of the above reasons, the defendant prays that the plaintiff is not entitled to vacant possession of the reserved land on which the columbarium is situated. Testimony of witnesses [9] Lau Tian Boon, who represented KKS told the court, after a new KKS committee was formed in the year 2017, it appointed legal advisers to look into the JVA signed by both KKS and MMP in the year 2006. After having perused the agreement, KKS was advised that the agreement was not beneficial to them. Thus, the committee agreed for the said agreement to be terminated somewhere in the middle of October 2018. He too informed the court; a few reasons had emerged. 10 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal [10] Firstly, the former president of KKS, one Choo Ah Bak was also representing the defendant. Therefore, he was deemed not to have been the best person to look into the interest of KKS. He had once held the post as President of KKS and after the columbarium was built, was its Manager. Technically, he was representing MMP in the affairs of the columbarium. He was an important person in the running of the columbarium as Chen Yiok Chuan (SP10) testified in court, Choo Ah Bak was also responsible for the financial matters pertaining MMP. He also added, all debts of MMP were paid by Choo Ah Bak using his own personal cheques. The tie-in to this snippet of information on the case is, Choo Ah Bak was the person who made and received payments from MMP to KKS derived from sale of the columbarium lots. [11] The next reason being MMP did not update KKS on the sale of lots at the columbarium. Added to this, MMP did not make payments to KKS, resulting in MMP owing KKS money for two years and supposedly there was an arrears of RM174,189.60 due to KKS. Also, MMP did not fulfil its obligation to build 10,000 columbarium lots over a period of two years, but only 2,400 lots were completed. [12] More damaging though, was a letter from the Kerian District Council stating that the columbarium was illegal and unlawful as it had no 11 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal “kebenaran merancang”. This letter sent shock waves to KKS and the Chinese community in Bagan Serai as they feared the ashes of their loved ones were interned in an illegal columbarium. Further KKS assumed that the interest of the general Chinese community in Bagan Serai would be badly affected if matters related to KKS, MMP and the columbarium were not settled. [13] SP11 reaffirmed he was told by the Land Office; the reserved land is for the public and descendants of Kwang Kheow Seah. Supporting this stance, is Khong Koing Chew (SP2) who became president of KKS in 2017, testifying that the land was managed by KKS, and he was confident the State Government would allow KKS to legalise the land once matters relating to ownership via its trustees, controller, manager was settled. However, deep down, KKS was apprehensive that the land will be taken over by MMP. [14] Hence, KKS decided to terminate the 2006 agreement with MMP in October 2018. In a nutshell, KKS wanted to terminate the agreement because it was illegal and unlawful, as well as due to non-payment of RM174,189.60 and MMP’s failure to build a columbarium as prescribed in the agreement. In a nutshell, the reserved land was wrought with problems with MMP in the fray. The blame game then 12 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal started with each of the entity trying to outwit each other in order to gain control of the columbarium. [15] There were allegations made by counsel for the defendant that KKS wanted to remove MMP from the columbarium and to take all profits due from the sale of columbarium lots for itself. It is also maintained by counsel for the defendant that the JVA was still valid. However, not backing off, KKS wrote a letter to MMP, claiming the agreement had been properly terminated and demanded for MMP to deliver vacant possession of the land and columbarium forthwith. [16] Officially, Helmi bin Yusof (SP3), being Chairman of the Kerian District Council related to the court that on 17.11.2006, a development plan (pelan pembangunan) to build a building to house ashes of the cremated can be passed if the plan was approved by the District Council. He continued to say although it was approved, it could not be implemented as there was no kebenaran merancang. Nonetheless, work on the columbarium started without any official permission from the district council, as there was no application for kebenaran merancang submitted to it. Resulting from that, on 2.5.2006, the Council issued a stop-work notice under section 70 of the Road, Drainage and Building Act 1974 (Act 133), by which the construction work had to cease immediately. He went on to state the 13 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal construction of the columbarium and administrative building on the site contravened section 19 (1) of the Town and Country Planning Act 1976 (Act 172), resulting in the columbarium and office building to have been illegally erected. [17] Consequently, on 15.5.2006, Dr R.A Malek Architect, an architect firm prepared an application to the Kerian District Council to build a columbarium. Following this, on 3.9.2008, the firm presented an application with a plan to build an administration building to the Council. However, the Council through its meeting via Mesyuarat Jawatankuasa Pusat Setempat (OSC) bil. 19/2008 rejected the application as it was without the permohonan merancang for the whole of Lot 7654. In short, both the application to build a columbarium and administration office building must have the kebenaran merancang. He had also clarified the Council is able to legalise the building if the applicant had the kebenaran merancang and the plan for the office building. When questioned if the kebenaran merancang was required as the site already had an existing building, SP3’s reply was that he took office in 2018 and he was unclear as to what had transpired prior to the year 2018. [18] Delving into technicalities of SP3’s testimony, he agreed with counsel for the defendant that he was unsure if KKS was the 14 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal manager of Lot 7654 as he had not seen the gazette. However, there was a letter from Majlis Daerah Tanah (District Land Council) to Kerian District Council which had stated status of the land is a Chinese burial land gazetted as GN 6754 dated 30.8.1932 under the control (jagaan) of Bay Soo Yap (BSY) and Bee Hup Seng (BHS). With such status, the Kerian Land Office would not approve any development plan unless it was made by the maintainer of the reserved land. Nevertheless, if the maintainer has died, a descendent or an association has to apply to the State Authority to include its name as the new maintainer of the reserved land. [19] As the narrative henceforth is on official matters related to Lot 7654, it is worth considering the input by Nor Izzati Husnah (SD1), Assistant District Officer of the Land Division, Disposal and Development Unit (Unit Pelupusan dan Pembangunan). According to her, the government land was gazetted as site for Chinese burial ground. In that gazette, it stated the Controller (Pegawai Pengawal) of the land is the District Officer of Kerian, while the maintainers and/or controllers were BSY and BHS. [20] She went on to explain the difference in duties and roles between the Kerian District Council and Land Office. When an application for kebenaran merancang is made at the District Council, a review from 15 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal the Kerian Land Office has to be obtained. Ultimately, the final approval has to come from the Kerian District Council. [21] On the issue of kebenaran merancang, it was unravelled that MMP had been trying to acquire the lot. SD1 told the court that her office had received an application to acquire the land by MMP. When asked by counsel for plaintiff, she had affirmatively answered her office had received an application from MMP to acquire the land. Quoted verbatim her testimony was: Mah: So, ertinya Defendan telah memohon untuk memiliki tanah kerajaan? SD 1: Ya The plaintiff summed up, it was consistent with their client’s call the defendant was trying to acquire Lot 7654. [22] Moving on, Ong Ang Pieu (SD2) told the court he was a major shareholder of Majestic Memorial Park (BS) Sdn. Bhd. and Majestic Memorial Park Holding Sdn. Bhd. He revealed it was KKS who approached him to build the columbarium. At that time, the land already had a temple and small columbarium on it. He argued, he did not apply for permission to build as there was an existing columbarium there and his intent was to make the columbarium bigger but in fact a completely new columbarium was built. He 16 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal assumed there was no need for any approval. He asserted there was no problem building the columbarium until a third party wanted to apply for acquisition of the land. He had also testified, when he started work on the columbarium, he made it clear to KKS that all government matters, approvals etc. were in the hands of KKS. In short, he said he had no authority to do so. [23] SD2 went on to state the stipulated condition was that the columbarium was to be handed over to KKS once the target of 10,000 lots were completed, thus affirming possession of the land was not given to him. However, he admitted to have made one attempt to acquire the land and reason for doing so was because the land does not belong to KKS and in his mind, it is a piece of land belonging to the State. He had argued he had spent a considerable amount of money on the columbarium and KKS wanted him out, therefore he applied for ownership of the land to protect himself. SD2 stood by his position not to terminate the JVA as he had invested lots of monies on the project and was agitated by KKS and its action. In his own words, he had stated - “Saya kasi duit, dia lawan saya” [24] In a twist, he admitted MMP was managing and controlling the land on which the columbarium was built. He testified MMP was not making any profits, but KKS was making profits. He recounted 17 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal whatever profits made were handed over to KKS, which added up in total over a million ringgit, which was 20% of the revenue resulting from sale of the columbarium lots. He pointed out KKS would have received about RM5 million ringgit over a period of 10 years. He had also calculated if all columbarium lots were sold, KKS would have over 10 million ringgit in their account. [25] The losses suffered by MMP was explained by Ong Yin Shang (SD3), who is SD2’s son. He took over the company from his father in the year 2014. He informed the court MMP did not make profit from the columbarium as the costs involved in maintaining the columbarium was high, including salaries for workers, bills payment and to maintain and upkeep the columbarium. He remarked the columbarium was not making profit for the first five years of its activity and profits was only trickling in in the sixth year, albeit at a smaller margin, which was insufficient to be considered as profit. Evaluation of evidence [26] The entire case stems from the 2006 JV agreement. Analysing the testimony of plaintiff’s witnesses demonstrate that all of them were committee members of KKS. They are part of the KKS’s new committee that was formed in the year 2017, which meant many of its members were aware of the 2006 JV agreement, although not having full knowledge of it. As contended by counsel for the plaintiff, 18 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal they were unsure if the land was in the possession and control of KKS when the JVA was signed. This touches on the issue of legality of its possession of the impugned land. [27] Thus, it could be inferred from the testimony of witnesses at the trial, they did not have first-hand knowledge of the JVA. Only Khor Eow Sam (SP4) and Tan Hap Yew (SP5) signed the agreement. SP4 had informed the court, there were two others who had signed the agreement who hails from Ipoh, namely, Eng Han Chew and Choo Ah Bak. The other committee members were not involved in the agreement but they know of it as a result of meetings held at KKS and they were also advised by one Chen Chew Peng. According to Beh Heng Kaw (SP8), whenever there was a meeting about the agreement, Chen Chew Peng would take the liberty to render explanation on the agreement to the remaining members of the committee. In fact, witness SP9 pin-pointed when he testified in court that Chen Chiew Peng was the Head of the Agreement Committee. Strangely, Chen Chiew Peng was not called as witness in court to throw light on his role in the agreement. [28] Consistently, reasons afforded by the witnesses as to why the JVA had to be terminated are - delayed payments by the defendant; its failure to complete the 10,000 lots at the columbarium; and that the 19 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal new columbarium is deemed illegal, as it was built without proper approval from the relevant State Authority. [29] Briefly, counsel for the plaintiff contended witnesses were called to prove they have possession and control of the reserved land prior to the JVA. He had argued KKS need not be officially appointed to be in possession of the land, as there is compelling evidence to demonstrate KKS was in possession of the said land. However, historically it is so clear, pursuant to inter-generation stories, the controllers of the impugned land were Bay Soo Yap and Bee Hup Seng. It is entrenched by way of a decision of the apex Court in the case of Yap Lai Yoke v Chin Fook Wah & Anor (1984) 1 MLRA 331 that adverse possession by a person for however long a period does not extinguish the title of the registered proprietor nor does it any way further his right to possession. In the present case the impugned land is vested in the State Authority and the plaintiff is not in a position to claim ownership or possession of the said land in the absence of a direction from the District Officer, with the demise of BSY and BHS. [30] To the contrary, defence advanced was towards proving the agreement between KKS and MMP was still valid and its termination was unlawful. It is also their contention, if this court finds validity of 20 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal the agreement intact, their counterclaim is that the plaintiff had breached the agreement, and the defendant is entitled to a remedy pursuant to section 71 of the Contracts Act 1950 (Act 136). It also holds it was misrepresented, thus the agreement entered ought to cease in its effect. [31] The subplot to this case, was that SD2 has a legal suit instituted against his brother for cheating. He has alleged his brother had carted away vital documents and statement of accounts from the company, which had crippled the operation of MMP, particularly sale of the columbarium lots. However, SD3 Ong Yin Shang had testified this issue had no effect on MMP and its commercial relationship with KKS. As goodwill, he too testified, in the interest of fairness to MMP, it was willing to renew ties with KKS, if it had accepted its cheque, but KKS had refused the gesture and remained adamant to terminate the agreement. [32] In sum total, takeaways from the case are - firstly, the Committee at KKS which had initiated this civil suit against MMP, the defendant comprised members who were not privy to the agreement signed in the year 2006. Most of them only came to know of the agreement from an individual Chen Chew Peng, as alluded to earlier, thus had no personal knowledge. Legally and factually, an agreement is a 21 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal contract binding on parties which is subject to a myriad of interpretation. As such, the committee members obtaining information from a third party would tend to introduce variation to the agreement, like that inferred from testimonies of witnesses for the plaintiff, that those who had signed the agreement is on the assumption the defendant would sort out the unresolved matter on the issue of trustees to the said land. Tan Hap Yew (SP5) informed the court that he had signed the agreement, as he had assumed, lawyers for the defendant would make necessary changes to the names of trustees. [33] Secondly, call made by KKS that payment was not made by MMP was inaccurate. The amount of RM174,189.60 representing the delayed payment by MMP to KKS was in fact paid on 30.6.2017 vide cheque which was received by KKS, which was confirmed by Tan Seong Hock (SP7). However, KKS returned the cheque with an accompanying letter dated 3.1.2019 and wished to have the agreement terminated. This bears a clear signal from KKS, they wished to have the agreement terminated. On this, the defendant had put it plain and bluntly, refusal by KKS to accept the said cheque smacks on its shady intent to have the agreement terminated as the 22 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal defendant would be left high and dry without a single cent obtained from the sale of columbarium lots. [34] Ultimately, tussle over the rights to the reserved land and the columbarium situated on it, centres on the revenue generated from the running of the columbarium and sale of the lots to purchasers who wishes to store the ashes of their loved ones who have passed on. The plaintiff had put it across to state the sale of the columbarium lots was in fact more than the cost of building the columbarium. It was agreed the defendant MMP would bear the cost of building the columbarium and 20% from the sale of the columbarium lots would be given back to KKS. Chen Yiok Chuan (SP10) told the court KKS received RM800,000 and MMP obtained RM3.2 million from the sale of columbarium lots. This was worked out on the basis of 80:20 ratio on the proceeds from sale of columbarium lots. Further, he said MMP had spent RM2.7 million on the columbarium, but was certain it had gained profits more than RM2.7 million. [35] To shore up the case of the defendant on the cost of building the columbarium, it had called a quantity surveyor (QS) Goh Poi See (SD4) to testify in court. She said in her expert opinion the costs involved to build the columbarium, in a present setting would be in the range of about RM5 million. She had in fact tried to justify the 23 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal cost of building the said columbarium at a price of RM2.7 million at that point of time. However, when cross-examined by counsel for plaintiff, she was unable to justify how she arrived at the RM5 million-ringgit costs. She had merely relied on a feeble justification vide drawing plans, documents and measurements which she had derived from the site after making two short visits. However, she had graciously agreed with him that her views are based mainly on her assumptions. To that extent, SD4’s testimony on her justification for costs to build the columbarium and probity of her valuation report was questionable. Findings [36] The primary remedy sought by plaintiff is for vacant possession of the land on which a columbarium is situated, built and maintained by the defendant thus far and also damages. The suit in its entirely is premised on possession of the impugned land and the columbarium. Therefore, the pivotal issue to be determined by this court is, who has possession of the impugned land? [37] From the evidence proffered in the case the following are apparent: • The impugned land is still a reserved land. • Its original maintainers were Beh Soo Yam and Bee Hup Seng, now deceased. 24 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal • They were trustees of the land. • Since then, no new trustees are appointed. • Via exhibit P30 and P30T, it was resolved on 3.10.2000 at a Special Annual General Meeting that the land is under the management of BSY and BHS, the trustees of the said land and new trustees must be appointed before construction and development of the new columbarium commences; and that the JVA would only be executed after the new trustees have been appointed. Witness SP2 had confirmed to this fact in his testimony during cross-examination. • The plaintiff society which is claiming title to the land, is not registered as trustees of the said land. • It has no right of possession over the said land, in fact so was also the status, before it was given to the defendant under the JVA. • In fact, SP5 during cross-examination had agreed that it was only his assumption that plaintiff had taken control over the said land. • The current status of the land is that it is a Government reserved land; reserved for the internment of the dead. • Witness SD1 who is the Penolong Pegawai Daerah dan Tanah Kerian, Bahagian Tanah had testified the land still belongs to the 25 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal Government which is reserved for Chinese cemetery and currently the district officer is the Controller and BSY and BHS were the maintainers. • Plaintiff society has no right to possession of the land. • Thus, they are not entitled to vacant possession of the land on which a columbarium is situated, which is operated by the defendant. [38] The law does not operate in favour of the plaintiff, as pointed out by SD1, who is representative of the State Authority that the subject land is still a reserved land, the district officer being the Controller and BSY as well as BHS were the maintainers. [39] Title to the land remains status quo, pursuant to Gazette Notification number 6754 dated 30.8.1932, which is still in force. As at the date of decision of this case, the plaintiff is not appointed as the Maintainer. It is expressly stipulated in the Gazette, the DO may appoint such other person in writing to be the Maintainer, which is not done. So, it is anyone’s guess who would be appointed, it could be the plaintiff or the defendant and any other party, subject to the direction of the DO. It would be done presumably after an enquiry by him pursuant to the provisions of the National Land Code (NLC) on reserved land. 26 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal [40] Possession of the land is given to the defendant after a JVA, P25 was executed to build and manage a columbarium, purportedly on the premise that plaintiff has possession of the impugned land. To that extent legality of the JVA is not the material issue before this court. [41] From the chronology of events and testimony of witnesses both for the plaintiff and defendant, both parties are on equal footing with regard to right to possession of the reserved land. The defendant has expended monies on building and maintaining the columbarium pursuant to the JVA, whilst plaintiff has represented to be the controller of the impugned land when the JVA was signed, when in fact they are not. That had induced the defendant to enter into the JVA. The Gazette Notification which is a binding legal instrument on the plaintiff prevails, albeit demise of BSY and BHS. In the circumstance, the plaintiff has no legal basis to claim possession of the land. [42] Conduct of the plaintiff is questionable, as although it claims the columbarium is illegal and that the defendant cannot be allowed to benefit from it but strangely the plaintiff has enriched itself by obtaining proceeds from the sale of the columbarium lots. 27 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal [43] Pursuant to the evidence proffered in the case by both plaintiff and defendant, it is only equitable for status quo of parties to be maintained and it is for them pursuant to their long occupation on the said land to have the matter re-organized and sorted out by way of direction from the DO in the absence of both BSY and BHS as maintainers. It is never for the plaintiff to call its shorts but it is for the State Authority via its DO on whom the reserved land is vested, to give the necessary and appropriate directions after a due inquiry into the matters arising. [44] It is also inequitable for the defendant to be ordered to vacate the land on which the columbarium is situated, for which they have expended great effort and incurred heavy costs, by virtue of which the plaintiff too have enriched themselves vide payment of dues which was paid to them periodically. [45] In the upshot, status quo of the defendant remains and the plaintiff is not entitled to have vacant possession of the impugned land. Pursuant to the Gazette Notification, they do not have any right to the land. Moreover, SP5 has agreed in court that it is only an assumption that plaintiff has taken control over the land. 28 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal Recap and conclusion [46] To recap, in a nutshell, case of the plaintiff in its entirety stems from the JVA entered into with the defendant. Subject matter of the JVA is a piece of land which does not belong to the plaintiff or defendant, but a reserved land vested with the State Authority, which is reserved for the betterment and benevolence of the Chinese community at Bagan Serai, Perak. The principal document governing the administration and management of the reserved land is a Gazette Notification No. 6754 dated 30.8.1932 which provides in no uncertain terms that the Controller of the land is the District Officer and in the interim, maintainers of the land were BSY and BHS who were trustees appointed to maintain and manage the impugned land. But time has revealed that both the maintainers are now deceased and no new trustees, including the plaintiff or defendant were appointed by the State Authority to maintain the said land. As such the plaintiff, in fact and law, does not have ownership of the land, from the outset, what more to have possession of the said land. It in fact has no locus standi to enter into the JVA to allow the defendant to build and manage a columbarium, for the sole purpose of storing the ashes of the dead. Albeit not having ownership and possession of the said land, the plaintiff has enriched 29 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal itself by the toil and sweat of the defendant who has built and manage a columbarium and by sale of the lots, the profits derived were paid to the plaintiff faithfully. Although enriched, the plaintiff has now claimed from the defendant, in the main, vacant possession of the impugned land on the basis that - • It has possession of the said land, when it has not. • Non-compliance with the JVA, as the defendant was supposedly to have built 10,000 lots but it had only completed 2400 lots, and the retort by the defendant, evidentially, which is so logical and probable, that the supply of lots is much dependent on the demand by the Chinese community at Bagan Serai to utilise the said lots for the remains of their loved ones, whom are dead and gone in eternity. It is also in evidence, that the columbarium built could contain 10,000 lots. The evidence remained unrebutted. Despite the retort, the plaintiff has deemed it fit to mount a claim against the defendant, thus leaving the claim to be unfounded and baseless. • The monies due and payable as profits derived from the sale of columbarium lots were not duly paid to the plaintiff, but evidence adduced and on a balance of probabilities demonstrates that the defendant had made positive attempts to pay the plaintiff, but the 30 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal defendant had refused to accept it, and had also wavered, as there were times, it had accepted it with no issues raised. But yet the plaintiff has remained agonized and persistent in wanting vacant possession of the land which is vested with the State Authority. Despite that, the plaintiff had relentlessly mounted a claim against the defendant. • The straw that broke the camel's back, was the fact that the defendant had insidiously applied for ownership of the land from the State Authority. On a balance of probabilities, the defendant was faultless in doing so as they are on equal footing with the plaintiff to have ownership and possession of the said land which is reserved not for the plaintiff but historically for the benefit and benevolence of the Chinese community at Bagan Serai. [47] Hence, in sum total, the plaintiff has no right of ownership or possession of the impugned land, for it to pursue this claim against the defendant, thus rendering it to be frivolous and vexatious. The plaintiff seemed to have clutched at straws. There are also cracks in the case by plaintiff. The witnesses who testified for the plaintiff were not from the old committee whom had agreed with the defendant over the JVA vis its effort and costs expended on the columbarium. Therefore, pursuit of the claim against the defendant for vacant possession of the land on which the columbarium is 31 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal situated at the behest of the new committee is both frivolous and vexatious. As agreed upon in the JVA, the defendant was entrusted to build and manage a columbarium at its own cost and expense. By virtue of the entrustment, it has rightfully turned aggressive on the sale of lots, but the plaintiff with the composition of its new committee members have now attempted to put a spoke in the defendant’s wheel, by claiming vacant possession of the impugned land, which from the outset does not belong to them but vested in the State Authority. [48] In the premise, claim by plaintiff is dismissed with costs. Likewise, since status quo of the defendant subsists, their counter claim is also dismissed with costs. Costs [49] On the issue of costs, counsel for defendant prayed for an amount of RM50,000. Their basis is that trial of the case took a long time and much getting up had also taken place. On the dismissal of counter claim, the defendant prayed for no order as to costs and ought not be penalised. To the contrary, counsel for plaintiff implored to this court that costs was incurred due to the frivolous defence advanced by the defendant. Save for the issue on locus standi, the pivotal dispute is assertion and persistence by the defendant that 32 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal they have suffered major losses and lots of time for trial of the case had been spent and wasted. Thus, for dismissal of the counter claim, an amount of RM100,000 ought to be ordered against the defendant. Strangely, for the principal claim by the plaintiff, an amount of RM25,000 as costs was prayed for. It was also contended, counterclaim by defendant is in terms of amount greater than the plaintiff’s claim. Emphasis was made that although value of the claim, is only a guiding factor but it has to be foremost consideration. On the other hand, counsel for defendant implored to this court that it had to pursue the counter claim, since lots of monies were expended on the columbarium. In the upshot, this court after having considered the salient fact that the status quo of both plaintiff and defendant is maintained ensuing from the decision of this court, an order of costs made has to be fair and just. Thus, an amount of RM25,000 is ordered as costs to be paid by the plaintiff to the defendant and with regard to the counter claim, an amount of RM10,000 as costs is ordered to be paid by the defendant to the plaintiff. Claim by plaintiff dismissed with costs. Counterclaim by defendant is also dismissed with costs. Order of costs made accordingly. 33 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal Dated 3 March 2024 SGD Muniandy Kannyappan Judge, High Court. Ignatius Ho Woon Choon of Tetuan Woon Choon, counsel for plaintiff. Andrew Soong Tze Toong and Jonny Cheong Yau Kheong of Tetuan BH Koh, Soong, Zahrin & Partners, counsel for defendant. 34 S/N l/RnRmRyUG3M9anUastJw **Note : Serial number will be used to verify the originality of this document via eFILING portal