Landmark decision on land tenure, back to 999

KOTA KINABALU - The High Court here, in a landmark decision, has declared that conditions set by the Lands and Surveys Department to reduce the leasehold tenure from 999 years to 99 years for approval of the development and subdivision of land to be ultra vires, unlawful and null and void.

High Court Judicial Commissioner Wong Siong Tung on Feb 27 granted the plaintiff a declaration that the condition imposed by the Director of Lands and Surveys to surrender the three original subdivided titles with leasehold tenure of 999 years in exchange for a reduced leasehold tenure of 99 years for the further subdivided lots as a condition for the approval of the development and further subdivision of the original subdivided title was ultra vires and unlawful, and was therefore invalid.

The plaintiff, Chin Kim Phin, an 88-year-old retiree, named the Sabah Lands and Surveys Director and the Registrar of Titles of Sabah Lands and Surveys Department as the first and second defendant, respectively in his originating summons.

Wong also granted another declaration that the further subdivided lots upon the subdivision of the original subdivided titles shall be restored to the leasehold tenure of 999 years as existed before the further subdivision of the original subdivided titles.

In the plaintiff’s brief background, it was stated that in 1923, the British North Borneo as the predecessor of the State Government of Sabah granted a leasehold of a parcel of land for the term of 999 years.

After the plaintiff had acquired the land in 1963 as the registered owner, he obtained approval for the subdivision of the land into three subdivided lots issued with the same leasehold tenure of 999 years.

In 2004, for the purpose of housing development, the three subdivided lands were amalgamated with other six parcels of land for the construction of 16 units of two-storey semi-detached houses.

The first defendant approved the further subdivision of the three subdivided titles into six further subdivided lots.

However, the first defendant’s approval on the further subdivision of three original subdivided titles into six further subdivided lots was subject to the condition that the leasehold tenure for the further subdivided lots to be reduced from 999 years to 99 years.

The plaintiff accepted the first defendant’s offer and the terms of the further subdivision of the original subdivided titles.

More than 14 years later, the plaintiff represented by his counsel Datuk Kong Hong Ming took out the originating summons seeking the declarations from the High Court.

In his judgment, Wong held that there was no statutory provisions which gave the defendants the power to impose such condition in an application for permission to develop the land concerned.

Wong concluded that the condition imposed by the first defendant that the leasehold tenure for the further subdivided titles issued to be reduced from 999 years to 99 years in the plaintiff’s application seeking permission for the development of the land to be ultra vires, unlawful, null and void.

Wong also found that the act complained of against the defendants for imposing the conditions that the leasehold tenure for the further subdivided titles to be reduced from 999 years to 99 years as a condition of the approval of the development plan which the defendants had no power to impose.

“The imposing of such condition which the defendants have no power to do so cannot be said to be such act done was in pursuance of a public duty.

“Therefore, the plaintiff’s action despite being filed 14 years later was not out of time,” held Wong.