Orang-Orang Yang Tidak Dikenali Yang Menduduki Atas Tanah

Geran No SP 1642, Portion No 3, (Dikenali Sebagai Kampung Baru

Pulau Tiga, Sungai Layar) Mukim Sungai Petani, Daerah Kuala
16 Muda, Kedah v. Dato’ Seri M Mahadevan A Mahalingam
[2018] 6 MLRA

ORANG-ORANG YANG TIDAK DIKENALI YANG

MENDUDUKI ATAS TANAH GERAN NO SP 1642,
PORTION NO 3, (DIKENALI SEBAGAI KAMPUNG BARU
PULAU TIGA, SUNGAI LAYAR) MUKIM SUNGAI PETANI,
DAERAH KUALA MUDA, KEDAH
v.
DATO’ SERI M MAHADEVAN A MAHALINGAM

Court of Appeal, Putrajaya

Lim Yee Lan, Asmabi Mohamed, Yeoh Wee Siam JJCA
[Civil Appeal No: K-02(IM)-2037-11/2016]
8 March 2018

Land Law: Possession of land — Encroached land — Writ of possession, execution of

— Whether out of time — Locus standi — Indefeasibility of title — Adverse possession
or unlawful occupation of land — Rules of Court 2012, O 89

Civil Procedure: Summary possession of land — Order for — Writ of possession,

execution of — Whether out of time — Locus standi — Indefeasibility of title —
Adverse possession or unlawful occupation of land — Rules of Court 2012, O 89

This was an appeal by the defendants/appellants against the High Court’s

decision allowing the Notice of Application (“NOA”) of the plaintiff/
respondent for leave to issue a writ of possession (“WP”) which the appellants
alleged was out of time (“encl 53”). The respondent, the registered proprietor
of a piece of land in Kedah (“land”), had obtained judgment for an order
for possession of the land under O 89 Rules of Court 2012 (“ROC”) on 9
November 2000, and for purposes of execution, the WP was issued on 5
December 2000. The appellants, who were squatters on the respondent’s land,
lodged an appeal to the Court of Appeal to set aside the order for possession
but the appeal was dismissed. Subsequently, the respondent filed a summons
for leave of court to issue execution and was granted leave to issue a WP on 13
May 2009. According to the respondent, he attempted to execute the WP on
a number of occasions but was unable to do so since the squatters had reacted
aggressively by struggling and fighting against the parties present at the time.
The respondent then filed an urgent summons for leave to execute the order
for possession under O 89 ROC, and the order was granted to issue a WP. The
appellants filed a NOA to set aside the respondent’s WP and an ex parte NOA
in the High Court to stay the execution of the WP. The respondent’s WP was
subsequently stayed and set aside by the court. The respondent subsequently
filed a NOA in encl 53 for, inter alia, leave of court to extend the time for the
order for possession dated 9 November 2000, which was allowed under O 89
ROC. Hence, the present appeal.
 Orang-Orang Yang Tidak Dikenali Yang Menduduki Atas Tanah
Geran No SP 1642, Portion No 3, (Dikenali Sebagai Kampung Baru
Pulau Tiga, Sungai Layar) Mukim Sungai Petani, Daerah Kuala
[2018] 6 MLRA Muda, Kedah v. Dato’ Seri M Mahadevan A Mahalingam
17

Held (dismissing the appeal):

(1) The High Court Judge (“judge”) was correct to hold that the NOA for
extension of time to issue the WP for the purpose of execution of the
judgment was not an “action upon any judgment” as envisaged by s 6(3)
of the Limitation Act 1953. Instead, it was an application for execution of
the said judgment by way of a consequential proceeding, ie by a WP. From
a reading of O 46 rr 1, 2(1)(a) and 2(2) ROC, it was clear that a “writ of
possession”, was a “writ of execution”, and in order to enforce the judgment
under O 89 ROC dated 9 November 2000, where six years or more had lapsed
since the date of the judgment or order for possession, leave of the court was
required. The court had the power to grant an extension of time to do any act.
It was also clear from O 46 r 2(3) ROC that where the court had granted leave
previously for the issue of a writ of execution, and if the writ was not issued
within one year after the date of the order granting the leave, the order would
cease to have effect, but “without prejudice, however to the making of a fresh
order”. Thus, the judge was correct to consider encl 53 a fresh application for
which the court was empowered to grant a “fresh order”. The judge had not
erred in allowing an extension of time for the execution of the WP even though
more than 15 years had passed since the date of the said judgment. (paras 17,
21, 22 & 23)

(2) The appellants to date had yet to identify themselves. They had never
applied to the court to intervene in these proceedings or be added as named
defendants, or as a party to these proceedings. An unnamed person had no
identity and therefore lacked locus standi. Hence, an unnamed person had to
first identity himself and then apply to be joined as a party to the proceedings
before he could be heard. Therefore, the appellants in the present case and their
solicitor in fact had no locus standi to be heard in the court below and in this
court. (paras 25, 27 & 28)

(3) The respondent, being the registered proprietor of the land, had obtained
indefeasibility of title under s 340 of the National Land Code (“NLC”).
By virtue of s 48 NLC, the appellants had no title to the land arising from
adverse possession or unlawful occupation of the land. The respondent had
already obtained a judgment and final order under O 89 ROC. Therefore, the
respondent was entitled to carry out execution of the judgment through the
WP as allowed by the judge in encl 53. (paras 29 & 31)

Case(s) referred to:

Orang-Orang Yang Menduduki Rumah Dan Setor-Setor Papan Yang Didirikan Atas
Sebahagian Tanah Yang Terkandung Di Bawah Hakmilik Geran No 26977 Bagi Lot
4271 Dalam Bandar Johor Bahru, Johor v. Punca Klasik Sdn Bhd & Other Appeals
[1997] 1 MLRA 636 (folld)
Soo Chow Lai v. Tan Ah Tong & Anor [2004] 7 CLJ 54; [2004] 2 MLRH 855 (folld)
 Orang-Orang Yang Tidak Dikenali Yang Menduduki Atas Tanah
Geran No SP 1642, Portion No 3, (Dikenali Sebagai Kampung Baru
Pulau Tiga, Sungai Layar) Mukim Sungai Petani, Daerah Kuala
18 Muda, Kedah v. Dato’ Seri M Mahadevan A Mahalingam
[2018] 6 MLRA

Legislation referred to:

Limitation Act 1953, s 6(3)
National Land Code, ss 48, 340
Rules of Court 2012, O 3 r 5(1), O 15 rr 6, 10, O 46 rr 1, 2(1)(a), (2), (3), 3,
O 89 r 5

Counsel:
For the appellants: Mohd Sarisffuddin Ismail; M/s Fizol, Aziz & Mohd Noor
For the respondent: Stephanie Khaw; M/s Khaw Ewe Seng & Co

[For the High Court judgment, please refer to Dato’ Seri M Mahadevan A Mahalingam
lwn. Orang-Orang Yang Tidak Dikenali Yang Menduduki Atas Tanah Geran No SP
1642, Portion No 3 [2017] MLRHU 63]

JUDGMENT

Yeoh Wee Siam JCA:

Appeal
[1] This is an appeal by the defendants (or “appellants”) against the entire
decision of the Alor Setar High Court given on 20 September 2016 which
allowed the Notice of Application (“NOA” or “Application”) of the plaintiff
(or “respondent”) for leave to issue a writ of possession (“WP”) which the
appellants allege was out of time (encl 53).
Background Facts
[2] The respondent is the registered proprietor of a piece of land known as
Geran No. SP 1642, Portion No 3, Mukim Sungai Petani, Daerah Kuala
Muda, Kedah Darul Aman (“land”). The respondent at the time of the hearing
of the appeal was nearly 88 years old.
[3] The respondent obtained judgment for an order for possession of the land
under O 89 of the Rules of Court 2012 (“ROC”) on 9 November 2000, and for
purposes of execution the WP was issued on 5 December 2000.
[4] It is an undisputed fact that the appellants are squatters on the respondent’s
land.
[5] The appellants lodged an appeal to the Court of Appeal in 2000 to set aside
the order for possession but the appeal was dismissed with costs.
[6] Subsequently, the respondent filed a summons for leave of court to issue
execution dated 15 May 2007, and was granted leave to issue a WP on 13 May
2009.
[7] According to the respondent, the respondent attempted to execute the WP
on 14 June 2001, 27 May 2001, 13 May 2009 and 21 August 2014 but was
 Orang-Orang Yang Tidak Dikenali Yang Menduduki Atas Tanah
Geran No SP 1642, Portion No 3, (Dikenali Sebagai Kampung Baru
Pulau Tiga, Sungai Layar) Mukim Sungai Petani, Daerah Kuala
[2018] 6 MLRA Muda, Kedah v. Dato’ Seri M Mahadevan A Mahalingam
19

unable to do so since the squatters (whose names are unknown) had reacted
aggressively by struggling and fighting against the parties present at the time,
including the Chief Registrar of the court, the court bailiff, police personnel
from the Sungai Petani police station, private contractors, TNB representatives,
and the previous lawyers for the respondent (respondent’s Affidavit in Support,
and AR Pt B pp 28-29).

[8] On 5 June 2012, the respondent filed an urgent summons for leave to
execute the order for possession under O 89 of the ROC (encl 48), and the
order was granted on 3 July 2012 to issue a WP. The WP was issued by the
respondent on 30 July 2012.

[9] On 5 March 2015, the appellants filed a NOA to set aside the respondent’s
WP dated 30 July 2012 (encl 37), and an ex parte NOA (encl 39) in the High
Court to stay the execution of the WP dated 30 July 2017. The respondent’s
WP dated 30 July 2012 was subsequently stayed and set aside by the court
order dated 25 August 2015.

[10] On 28 December 2015, the respondent filed a NOA in encl 53 for leave of
court to extend the time for the order for possession dated 9 November 2000
which was allowed under O 89 of the ROC, and/or extension of time for the
order for execution dated 3 July 2012, leave of court to file a Summons for
Leave to Issue Execution in seven days after the order for extension of time is
granted in respect of the order dated 9 November 2000, and leave to file a new
application for the writ of execution of the order for possession in 14 days after
the Summons for Leave is granted (AR Vol 1 pp 23-24).

[11] The grounds for the respondent’s application (encl 53) are as follows:

(a) Pursuant to the order dated 9 November 2000, the respondent

has a reasonable cause of action in law and in equity against the
appellants;

(b) The respondent’s application is intended to get back possession

of the land as the respondent intends to sell the land before any
undesirable matter happens to the respondent due to the age
factor;

(c) The delay in making the Application is because of the fact that the
respondent was already 86 years old and his health is not good;

(d) If there is any delay, it is only procedural. The delay and defect
can be allowed according to the discretion of the court considering
the legality and validity of the registered proprietor’s right to
possession of the land;

(e) The appellants have no right under the law to occupy the land
owned by the respondent (AR Vol 1 p 24).
 Orang-Orang Yang Tidak Dikenali Yang Menduduki Atas Tanah
Geran No SP 1642, Portion No 3, (Dikenali Sebagai Kampung Baru
Pulau Tiga, Sungai Layar) Mukim Sungai Petani, Daerah Kuala
20 Muda, Kedah v. Dato’ Seri M Mahadevan A Mahalingam
[2018] 6 MLRA

Decision Of The High Court

[12] On 20 September 2016, the High Court allowed the respondent’s

Application in encl 53 with no order as to costs.

[13] Dissatisfied, the appellants filed the present appeal to the Court of Appeal
on 16 October 2016 in respect of encl 53.

Our Decision

[14] On 4 July 2017, after having considered the submissions of both learned
counsels, and having perused the Record of Appeal, we found no merit in this
appeal to warrant our appellate intervention. Accordingly, we dismissed the
appeal with costs RM5,000.00 to be paid personally by the appellants’ solicitor
to the respondent, subject to payment of the allocator fee. We also ordered that
the deposit is to go to the account for costs.

Grounds For Decision

Whether The Respondent’s Application (Enclosure 53) Falls Within The

Ambit Of Section 6(3) Of The Limitation Act 1953, And Whether It Is An
Action Upon A Judgment?

[15] Section 6(3) of the Limitation Act 1953 provides as follows:

“(3) An action upon any judgment shall not be brought after the expiration
of twelve years from the date on which the judgment became enforceable and
no arrears of interest in respect of any judgment debt shall be recovered after
the expiration of six years from the date on which the interest became due.”

[Emphasis Added]

[16] The appellants contend that pursuant to s 6(3) of the Limitation Act 1953,
the respondent’s Application (encl 53), and the WP granted pursuant to such
Application, is an “action upon any judgment” within the meaning of the said
section, and hence is statutorily barred by the limitation of 12 years to enforce
the order for possession which is a “judgment”. In this case, the judgment was
obtained on 9 November 2000 ie more than 15 years before the Application
was filed on 28 December 2015.

[17] With respect, we do not agree with the submissions of the appellants on
this point. We are of the view that the learned High Court Judge (“Judge”) is
correct to hold that the Application for extension of time to issue the WP for
the purpose of execution of the judgment is not an “action upon any judgment”
as envisaged by s 6(3) of the Limitation Act 1953. Instead, it is an application
for execution of the said judgment by way of a consequential proceeding ie by
a WP.

[18] In this respect, the judge was properly guided by the decision in Soo
Chow Lai v. Tan Ah Tong & Anor [2004] 7 CLJ 54; [2004] 2 MLRH 855 where
 Orang-Orang Yang Tidak Dikenali Yang Menduduki Atas Tanah
Geran No SP 1642, Portion No 3, (Dikenali Sebagai Kampung Baru
Pulau Tiga, Sungai Layar) Mukim Sungai Petani, Daerah Kuala
[2018] 6 MLRA Muda, Kedah v. Dato’ Seri M Mahadevan A Mahalingam
21

Hishamudin Yunus J (as he then was), in regard to s 6(3) of the Limitation Act
1953 stated as follows:
“[1] The definition of the word “action” in the Act is not a true definition
because it does not begin with the words “action means” but “action includes”,
and coupled with the presence of the words “any other proceeding” means
that the word “action” in s 6(3) of the Act has a wide meaning. Nevertheless,
this court accepts the plaintiff ’s submission that s 6(3) of the Act only bars an
“action upon any judgment” (should there be a delay of more than 12 years)
and that the interlocutory application at encl 65 was not a fresh action but a
consequential proceeding towards enforcing the 1982 judgment. (p 58 b-d)”

[19] Applying the interpretation of “action” in the above case, the judge in
the present case similarly held that the respondent’s Application (encl 53) is
an interlocutory application, and is not a “fresh action”. Therefore, it is not
subject to the limitation of 12 years.

[20] The manner of execution of a judgment is governed by O 46 of the ROC

which, inter alia, provides as follows:
“Order 46

Writs Of Execution: General

Definition (O 46, r 1)

1. In this Order, unless the context otherwise requires, “writ of execution”

includes a writ of seizure and sale, a writ of possession and a writ of delivery.

When leave to issue any writ of execution is necessary (O 46, r 2)

2. (1) A writ of execution to enforce a judgment or order may not be issued

without the leave of the Court in the following cases:

(a) Where six years or more have lapsed since the date of the judgment or
order;

...

(2) Paragraph (1) is without prejudice to any written law or rule by which a
person is required to obtain the leave of the Court for the issue of a writ of
execution or to proceed to execution on or otherwise the enforcement of a
judgment or order.

(3) Where the Court grants leave, whether under this rule or otherwise, for the
issue of a writ of execution and the writ is not issued within one year after
the date of the order granting such leave, the order shall cease to have effect,
without prejudice, however, to the making of a fresh order.

Application for leave to issue writ (O 46, r 3)

3. (1) An application for leave to issue a writ of execution may be made ex

parte by a notice of application in Form 88.
 Orang-Orang Yang Tidak Dikenali Yang Menduduki Atas Tanah
Geran No SP 1642, Portion No 3, (Dikenali Sebagai Kampung Baru
Pulau Tiga, Sungai Layar) Mukim Sungai Petani, Daerah Kuala
22 Muda, Kedah v. Dato’ Seri M Mahadevan A Mahalingam
[2018] 6 MLRA

(2) Such an application shall be supported by an affidavit:

...

(3) The court hearing such application may grant leave in accordance with
the application or may order that any issue or question, a decision on which
is necessary to determine the rights of the parties, be tried in any manner in
which any question of fact or law arising in an action may be tried and, in
either case, may impose such terms as to costs or otherwise as it thinks just.”

[21] From a reading of O 46 r 1, r 2(1)(a) and r 2(2) of the ROC, it is clear that a
“writ of possession” (WP), is a “writ of execution”, and in order to enforce the
judgment under O 89 of the ROC dated 9 November 2000, where six years or
more have lapsed since the date of the judgment or order for possession, leave
of the court is required.

[22] The judge noted that notwithstanding the previous issue of a WP on 14

June 2001, 27 May 2001, 13 May 2009 and 21 August 2014, and such WP has
expired, the court has the power to grant an extension of time to do any act.
This is provided in O 3 r 5(1) of the ROC:
“Extension of time (O 3, r 5)

5. (1) The Court may, on such terms as it thinks just, by order extend or abridge
the period within which a person is required or authorized by these Rules or
by any judgment, order or direction, to do any act it any proceedings.”

It is also clear from O 46 r 2(3) of the ROC that where the court has granted
leave previously for the issue of a writ of execution, and if the writ is not issued
within one year after the date of the order granting the leave, the order shall
cease to have effect, but “without prejudice, however to the making of a fresh
order”.

[23] Thus, in our view, the judge is correct to consider the respondent’s
Application (encl 53) as a fresh application for which the court is empowered
to grant a “fresh order”. We do not think that the judge had erred in allowing
an extension of time for the execution of the WP dated 3 July 2012 under the
O 89 judgment dated 9 November 2000 even though more than 15 years have
passed since the date of the said judgment.

The Appellants Have No Locus Standi

[24] From a perusal of the intitulement to the Originating Summons in this

case, it is observed that the appellants are “Orang-orang yang tidak dikenali
yang menduduki atas tanah”, namely they are unknown squatters occupying
the respondent’s land. Even though this issue was not addressed by the judge,
we considered the submissions of the respondent on the matter. We note that
the deponent of the Affidavit in Reply of the appellants to the respondent’s
Application is one Saheme bin Hashim (“Saheme”) (AR Vol 2 p 73-78). He
averred that he is one of those “orang-orang yang tidak dikenali” occupying the
 Orang-Orang Yang Tidak Dikenali Yang Menduduki Atas Tanah
Geran No SP 1642, Portion No 3, (Dikenali Sebagai Kampung Baru
Pulau Tiga, Sungai Layar) Mukim Sungai Petani, Daerah Kuala
[2018] 6 MLRA Muda, Kedah v. Dato’ Seri M Mahadevan A Mahalingam
23

land and is named as a defendant in the action. Other than his oral averment,
there is no documentary evidence to prove that this deponent is a defendant
in this case, or that he is legally authorised to represent all the appellants.
Therefore, on record, based on the intitulement, there is no known or identified
defendant/appellant in this case.

[25] The appellants to date have yet to identify themselves. They have never
applied to the court to intervene in these proceedings or be added as named
defendants, or as a party to these proceedings.

[26] As submitted by the respondent, the law pertaining to this issue is clearly
set out in O 89 r 5 of the ROC as follows:
“ORDER 89

Summary Proceeding For Possession Of Land

Application by occupier to be made a party (O 89 r 5)

5. Without prejudice to O 15, rr 6 and 10, any person not named as a defendant
who is in occupation of the land and wishes to be heard on the question
whether an order for possession should be made may apply at any stage of the
proceedings to be joined as a defendant.”

[27] An unnamed person has no identity and therefore lacks locus standi. Hence,
an unnamed person has to first identity himself and then apply to be joined as
a party to the proceedings before he may be heard. This was clearly spelt out
by the Court of Appeal in Orang-Orang Yang Menduduki Rumah Dan Setor-Setor
Papan Yang Didirikan Atas Sebahagian Tanah Yang Terkandung Di Bawah Hakmilik
Geran No 26977 Bagi Lot 4271 Dalam Bandar Johor Bahru, Johor v. Punca Klasik
Sdn Bhd & Other Appeals [1997] 1 MLRA 636 where at p 640 the court held:
“In our view, it is clear that before any person could be heard, he must identify
himself and apply to become a party to the proceedings, namely to be named
and joined as a defendant. Though the word ‘may’ is used in r 5, in our view,
that is a specific provision to be complied with before he could be given the
opportunity to be heard. In our view, a proper application must be made to the
court and not merely by insertion of name as a party. In our view, the failure
of any person to do so will not give him or his solicitors the right to appear
and be heard by the court.”

[28] We are therefore of the opinion that the appellants in the present case and
their solicitor in fact have no locus standi to be heard in the court below and
in this court. The appeal is clearly incompetent and ought to be struck out or
dismissed on this ground alone.

Squatters Have No Rights Or Title

[29] The respondent, being the registered proprietor of the land, has obtained
indefeasibility of title under s 340 of the National Land Code (“NLC”).
 Orang-Orang Yang Tidak Dikenali Yang Menduduki Atas Tanah
Geran No SP 1642, Portion No 3, (Dikenali Sebagai Kampung Baru
Pulau Tiga, Sungai Layar) Mukim Sungai Petani, Daerah Kuala
24 Muda, Kedah v. Dato’ Seri M Mahadevan A Mahalingam
[2018] 6 MLRA

[30] Furthermore, s 48 of the NLC provides as follows:

“48 No adverse possession against the State

No title to State land shall be acquired by possession, unlawful occupation or

occupation under any licence for any period whatsoever.”

[31] By virtue of s 48 of the NLC, the appellants have no title to the land
arising from adverse possession or unlawful occupation of the land. The
respondent has already obtained a judgment and final order under O 89 of
the ROC. Therefore, the respondent is entitled to carry out execution of the
judgment through the WP as allowed by the judge in encl 53.

[32] Contrary to what the appellants contend, we do not think that there is
any abuse of process of the court by the respondent in making the application.

Conclusion

[33] For the above reasons, we are of the unanimous decision that procedurally
and on its merits, this appeal cannot succeed. We therefore dismissed the appeal
of the appellants and affirmed the decision and order of the High Court.