OCBC BANK (MALAYSIA) BERHAD vs HARMONI KINABALU SDN. BHD (MJLR 2009b5) Clement Skinner,27/3/2009,SS
-1- [OMK.25-18-2008-II]
5 MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK
AT KOTA KINABALU
ORIGINATING SUMMONS NO.: K25-18 OF 2008-II
IN THE MATTER of the decision of the
10 Deputy Director of Lands and Surveys
given on the 23rd June 2008 pursuant to
Director of Lands and Surveys’ Land
Enquiry (Appeal No. 28/2007 in
connection with the decision of the
15 Assistant Collector of Land Revenue
Kota Kinabalu given on 30th July 2007
pursuant to Land Enquiry No. 153
of 2005
20 AND
IN THE MATTER of an Appeal to the
High Court pursuant to Section 41 (1) of
the Land Ordinance (Sabah Cap. 68)
read together with 55 Rule 13 of the
25 Rules of the High Court 1980 against
the decision of the Deputy Director of
Lands and Surveys given on 23rd June
2008 pursuant to the Director of Lands
and Surveys’ Land Enquiry (Appeal)
30 No. 28/2007.
BETWEEN
OCBC BANK (MALAYSIA) BERHAD … APPELLANT
35 AND
HARMONI KINABALU SDN. BHD. … RESPONDENT
-2- [OMK.25-18-2008-II]
5 BEFORE THE HONOURABLE JUSTICE
DATUK CLEMENT SKINNER IN CHAMBERS
JUDGMENT
10 This is an appeal against the decision of the Deputy Director
of Lands and Surveys, Kota Kinabalu (the ‘Deputy Director’) dated
23.06.2008. The appeal is brought by OCBC Bank (Malaysia)
Berhad (‘the appellant’) who, in 1992, had granted banking facilities
of RM4,800.000.00 to a company called Seribu Daya Sdn. Bhd.
15 (‘the borrower’). As security for those facilities the appellant took a
third party charge over land held under Country Lease
No. 015023013 (the ‘said land’), belonging to Harmoni Kinabalu
Sdn. Bhd. (‘the respondent’).
20 On 01.04.1992, a Charge was duly registered against the said
land at the Central Land Registry Kota Kinabalu, under
Memorial No. 10272601 pursuant the relevant provisions of the
Sabah Land Ordinance Cap 68. (the ‘Land Ordinance’).
25 In 2005, the appellant claiming that the borrower was in default
of the banking facilities, began to take steps as chargee to enforce its
security against the said land by applying to the Assistant Collector of
Land Revenue Kota Kinabalu (‘the ACLR’) for an order of sale of the
said land by giving the necessary notices stipulated under the
30 Land Rules.
-3- [OMK.25-18-2008-II]
5 On 09.05.2006 the ACLR Kota Kinabalu duly held a land
enquiry to hear the appellant’s application for sale of the said land. At
that hearing the appellant and respondent were represented by their
present solicitors.
10 On 30.07.2007 the ACLR handed down his decision relating to
the appellant’s application for sale. He allowed the application and
made an order for sale of the said land by public auction.
At the hearing of this appeal, a dispute has arisen between the
15 parties regarding the orders that were issued by the ACLR regarding
his decision. It is a matter I will return to shortly, after completing the
narrative leading up to this appeal.
Being dissatisfied with the decision of the ACLR made on
20 30.7.2007, the respondent appealed against that decision to the
Deputy Director. The appeal before the Deputy Director was heard
on 06.12.2007. On that date the appellant here who was the
respondent there filed 2 written submissions ‘No 1’ and ‘No 2’ both
dated 06.12.2007. The respondent here who was the appellant there
25 filed a written submission dated 18.01.2008.
On 23.06.2008 the Deputy Director handed down his decision
in respect of the appeal before him. He allowed the respondents
appeal. He held that the ACLR Kota Kinabalu had no legal power
30 and jurisdiction to make the order of sale of 30.07.2007. The
Deputy Director therefore overturned and reserved that order. The
-4- [OMK.25-18-2008-II]
5 Deputy Director also directed that the appellant’s application for sale
pursuant to s. 111 of the Land Ordinance be heard again.
It is against the above mentioned decision of the
Deputy Director that his appeal is directed.
10
This appeal has come before me by way of a motion. On
reading the motion and the affidavits that have been filed in support
of it and against it, including the grounds of decision of the
Deputy Director, it is clear to me that the Deputy Director had
15 decided that the ACLR had no legal power and jurisdiction to make
the order of sale dated 30.07.2007 as the Deputy Director found that
the ACLR had not complied with the provisions of Rule 14 (9) of the
Land Rules which reads:
“9. If after hearing the application the collector is
20 satisfied that default has been made in any
particular as aforesaid, and if no cause be
shown to his satisfaction, he shall by order in
the form of Schedule K determine the amount
due under the charge and order the sale of the
25 land charged or of such portion thereof as he
may think fit, provided that no lot shall be
partitioned without the consent of the chargor
unless each subdivision shall contain five or
more acres”.
30
The Deputy Director found that the particular part of Rule 14 (9)
which the ACLR had not complied with was that he had not made his
order in the form of Schedule K.
-5- [OMK.25-18-2008-II]
5 The appellant now says that the Deputy Director misdirected
himself in law and in fact when he decided that the ACLR had not
complied with Rule 14(9) as the Deputy Director had failed to
consider that the ACLR had indeed made an order for sale in the
form of a Schedule K dated 30.07.2007, in which the ACLR
10 had determined the amount due under the charge and made an order
for sale of the said land. In the affidavit sworn in support of this
motion the appellant has exhibited as “LLK 1” a copy of a letter
dated 30.07.2007 in which the ACLR conveyed his decision, and as
“LLK 2” a copy of the Schedule K dated 30.07.2007 issued by the
15 ACLR.
In opposing this appeal, learned counsel for the respondent
contends that the Deputy Director was not wrong in the decision he
made as the respondent claims that it has no knowledge of the
20 existence of the Schedule K and denies that it was issued together
with the letter of 30.07.2007. To lend support to his contention that
the existence of the Schedule K in this case could not have been in
existence at the date of the hearing of the appeal before the
Deputy Director, learned counsel for the respondent pointed out that
25 if the ACLR had really issued a Schedule K in this case, then:
(a) it is strange that the appellant had not referred to the
Schedule K or even produced it to the Deputy Director at
the hearing of the appeal before him;
(b) if the Schedule K was on the record in the file then surely
30 the Deputy Director should have seen it and would not
have decided as he did;
-6- [OMK.25-18-2008-II]
5 (c) the respondent had not received a copy of the
Schedule K.
In response to the above arguments the appellant has pointed
out that the hearing before the Deputy Director on 06.12.2007
10 took the form of written submissions and that both of its submissions
No. 1 and No. 2 were tendered on the same day i.e. 06.12.2007
which was well before the respondent had tendered its submissions
dated 18.01.2008. As such the appellant had no opportunity
to address the points taken about Schedule K in the respondent’s
15 submissions.
With regard to the doubts raised by the respondent about
the very existence of the Schedule K and the respondents denial
of knowledge of its existence or that the respondent had not received
20 a copy of the Schedule K, in order to show that the Schedule K
was indeed in existence and had been served on the respondent, the
appellant has exhibited an Order granted by the ACLR on 17.08.2007
for service on the respondent of the Schedule K by way of
substituted service. The order for substituted service was granted
25 pursuant to Rule 8 (3) of the Land Rules and was published in the
Borneo Post newspaper on 29.08.2007.
In my judgment the decision in this appeal will turn on
the question whether the ACLR had complied with Rule 14 (9) of
30 the Land Rules by issuing Schedule K. It he had not then clearly
the Deputy Director was right in saying what he did, but if the ACLR
-7- [OMK.25-18-2008-II]
5 had issued Schedule K then obliviously the Deputy Director has erred
in his decision.
Although the respondent doubts the existence of Schedule K at
the material time of the appeal before the Deputy Director, the
10 appellant has in fact produced a Schedule K dated 30.07.2007 issued
by the ACLR which was sent to the appellant’s solicitors under cover
of a letter also dated 30.07.2007 which the appellant has exhibited as
“LLK 8” to the affidavit of Liew Lee Kim affirmed on 16.01.2009. In
my judgment the appellant and the court is entitled to rely on
15 s. 114(e) Evidence Act to presume that the Schedule K which was
sent to appellant was properly and validly issued by the ACLR on
30.07.2007 since the ACLR was performing an official act in relation
to the hearing of the appellant’s application for sale when he issued it
and therefore there is no room to question the fact of its existence as
20 the respondent now seeks to do. Section 114 (e) reads:
The court may presume –
………………………………………………………………………..
(e) that judicial and official acts have been regularly performed;
25
Besides the presumption at law there is also other evidence
before the court to show that the Schedule K was issued and in
existence long before it became a matter of controversy in this
appeal. The ALCR’s letter of 30.07.2007 (‘LLK 8’) refers to it, and, an
30 order for substituted service was made in respect of it. Further the
Schedule K was also advertised in the Borneo Post on 29.08.2007. If
as the respondent suggests, the Schedule K was not in existence or
-8- [OMK.25-18-2008-II]
5 issued with the letter of 30.07.2007 then it is highly improbable that
the appellant would be able to apply for substitute service of it on the
respondent and for the ACLR to grant such an order, and for the
Schedule K form to be published in the newspapers on 29.08.2007.
10 With regard to the respondent’s argument that it is strange that
the appellant did not produce the Schedule K during the appeal
before the Deputy Director, I accept the appellant’s explanation that it
did not have an opportunity to address the point since its submissions
were filed on 06.12.2007 which was before the respondent raised the
15 point in its submissions dated 18.01.2008. A perusal of
the respondent’s Memorandum of Appeal to the Director, exhibited as
“LLK 3” to the affidavit in support of the motion affirmed by
Liew Lee Kim shows that the non-issuance of Schedule K was never
raised as a ground of appeal. Neither was it a ground of appeal that
20 the ACLR had not complied with Rule 14 (9) of the Land Rules. It
was only in the written submissions of the respondent dated
18.1.2008 that the point was taken. In the circumstances I accept the
appellant’s explanation why it did not address the Deputy Director on
the Schedule K.
25
Learned counsel for the respondent contends that if the Court
were now to hold that Schedule K was issued by the ACLR then the
respondent would be gravely prejudiced as under s 41 (1) of the
Land Ordinance the respondent is allowed 30 days from the date of
30 issuance of the Schedule K to appeal to the Director of Lands and
-9- [OMK.25-18-2008-II]
5 Surveys, but the respondent was not served nor made aware of the
Schedule K within the 30 days period.
I do not find the above a valid argument. The Schedule K
was served on the respondent by way of substituted service
10 within the 30 days, albeit on the last day so there is no
non-compliance in that regard. Further the fact of the matter is that
the respondent knew of the making of the order for sale and did
appeal against it, and, the public auction which was fixed on
15.11.2007 was postponed. So in that respect no actual
15 prejudice was suffered by the respondent. Even further still,
apart from questioning the existence of the Schedule K,
the respondent has not pointed out any grounds on which the
Schedule K is objectionable so as to afford it a ground of appeal,
which it was allegedly deprived of taking. For that reason too,
20 I do not think any prejudice has been suffered by the respondent.
Learned counsel for the respondent has also drawn attention to
the fact that Deputy Director has stated in his decision that in both the
appellants submissions No.1 and No. 2 the appellant had ended its
25 submissions by asking that an order be made to sell the
said land and that a Schedule K be issued, which suggests that no
Schedule K had been issued as yet. Counsel for the appellant
has explained that such a request was made in the light of the fact
that the sale by public auction had been postponed and hence the
30 request for an order that the land be sold and the
Schedule K issued if the respondent’s appeal was dismissed by the
-10- [OMK.25-18-2008-II]
5 Deputy Director. But counsel for the respondent says that
there is nothing to indicate in the appellant’s submissions
No. 1 and No. 2 before the Deputy Director that the request for
Schedule K to be issued was because of the postponed sale.
In my view, it is evident from looking at the Schedule K itself that the
10 ACLR had fixed the auction date on 15.11.2007, but
became of the appeal the auction sale was postponed. Hence
the request by the appellant in its submissions for Schedule K to be
issued on dismissal of the appeal is a logical and acceptable
explanation.
15
Counsel for the respondent has also pointed out
that the Schedule K was addressed to the respondent care-of its
lawyer’s office but the appellant chose to serve it on the
respondent and subsequently applied for substituted service. I find
20 nothing sinister in what the appellant did. Counsel for the appellant
explained that the letter from the ACLR dated 30.07.2007 (“LLK 8”)
enclosing the Schedule K, stated that it was to be sent to the
respondent within 30 days and so the appellant did so.
25 In the result for all the reasons given above I find the
Deputy Director had erred in law and in fact when he held that the
ACLR had not complied with Rule 14 (9) of the Land Rules.
The evidence before me shows that the Schedule K dated
30.07.2007 was indeed issued by the ACLR. Therefore, the decision
30 of the Deputy Director cannot be supported.
-11- [OMK.25-18-2008-II]
5 I allow the appeal with costs. I set aside the decision of the
Deputy Director dated 23.06.2008. The decision and order of the
ACLR Kota Kinabalu dated 30.07.2007 is upheld and to be enforced.
10
15
DATUK CLEMENT SKINNER
Judge
20
Date : 27th March 2009
25 Counsel
For Appellant : Mr. Brenddon Keith Soh
Messrs. Ronny Cham & Co.
KOTA KINABALU
30 For Respondent : Mr. Sugumar Balakrishnan
Messrs. Sugumar & Co
KOTA KINABALU
5 MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK
AT KOTA KINABALU
ORIGINATING SUMMONS NO.: K25-18 OF 2008-II
IN THE MATTER of the decision of the
10 Deputy Director of Lands and Surveys
given on the 23rd June 2008 pursuant to
Director of Lands and Surveys’ Land
Enquiry (Appeal No. 28/2007 in
connection with the decision of the
15 Assistant Collector of Land Revenue
Kota Kinabalu given on 30th July 2007
pursuant to Land Enquiry No. 153
of 2005
20 AND
IN THE MATTER of an Appeal to the
High Court pursuant to Section 41 (1) of
the Land Ordinance (Sabah Cap. 68)
read together with 55 Rule 13 of the
25 Rules of the High Court 1980 against
the decision of the Deputy Director of
Lands and Surveys given on 23rd June
2008 pursuant to the Director of Lands
and Surveys’ Land Enquiry (Appeal)
30 No. 28/2007.
BETWEEN
OCBC BANK (MALAYSIA) BERHAD … APPELLANT
35 AND
HARMONI KINABALU SDN. BHD. … RESPONDENT
-2- [OMK.25-18-2008-II]
5 BEFORE THE HONOURABLE JUSTICE
DATUK CLEMENT SKINNER IN CHAMBERS
JUDGMENT
10 This is an appeal against the decision of the Deputy Director
of Lands and Surveys, Kota Kinabalu (the ‘Deputy Director’) dated
23.06.2008. The appeal is brought by OCBC Bank (Malaysia)
Berhad (‘the appellant’) who, in 1992, had granted banking facilities
of RM4,800.000.00 to a company called Seribu Daya Sdn. Bhd.
15 (‘the borrower’). As security for those facilities the appellant took a
third party charge over land held under Country Lease
No. 015023013 (the ‘said land’), belonging to Harmoni Kinabalu
Sdn. Bhd. (‘the respondent’).
20 On 01.04.1992, a Charge was duly registered against the said
land at the Central Land Registry Kota Kinabalu, under
Memorial No. 10272601 pursuant the relevant provisions of the
Sabah Land Ordinance Cap 68. (the ‘Land Ordinance’).
25 In 2005, the appellant claiming that the borrower was in default
of the banking facilities, began to take steps as chargee to enforce its
security against the said land by applying to the Assistant Collector of
Land Revenue Kota Kinabalu (‘the ACLR’) for an order of sale of the
said land by giving the necessary notices stipulated under the
30 Land Rules.
-3- [OMK.25-18-2008-II]
5 On 09.05.2006 the ACLR Kota Kinabalu duly held a land
enquiry to hear the appellant’s application for sale of the said land. At
that hearing the appellant and respondent were represented by their
present solicitors.
10 On 30.07.2007 the ACLR handed down his decision relating to
the appellant’s application for sale. He allowed the application and
made an order for sale of the said land by public auction.
At the hearing of this appeal, a dispute has arisen between the
15 parties regarding the orders that were issued by the ACLR regarding
his decision. It is a matter I will return to shortly, after completing the
narrative leading up to this appeal.
Being dissatisfied with the decision of the ACLR made on
20 30.7.2007, the respondent appealed against that decision to the
Deputy Director. The appeal before the Deputy Director was heard
on 06.12.2007. On that date the appellant here who was the
respondent there filed 2 written submissions ‘No 1’ and ‘No 2’ both
dated 06.12.2007. The respondent here who was the appellant there
25 filed a written submission dated 18.01.2008.
On 23.06.2008 the Deputy Director handed down his decision
in respect of the appeal before him. He allowed the respondents
appeal. He held that the ACLR Kota Kinabalu had no legal power
30 and jurisdiction to make the order of sale of 30.07.2007. The
Deputy Director therefore overturned and reserved that order. The
-4- [OMK.25-18-2008-II]
5 Deputy Director also directed that the appellant’s application for sale
pursuant to s. 111 of the Land Ordinance be heard again.
It is against the above mentioned decision of the
Deputy Director that his appeal is directed.
10
This appeal has come before me by way of a motion. On
reading the motion and the affidavits that have been filed in support
of it and against it, including the grounds of decision of the
Deputy Director, it is clear to me that the Deputy Director had
15 decided that the ACLR had no legal power and jurisdiction to make
the order of sale dated 30.07.2007 as the Deputy Director found that
the ACLR had not complied with the provisions of Rule 14 (9) of the
Land Rules which reads:
“9. If after hearing the application the collector is
20 satisfied that default has been made in any
particular as aforesaid, and if no cause be
shown to his satisfaction, he shall by order in
the form of Schedule K determine the amount
due under the charge and order the sale of the
25 land charged or of such portion thereof as he
may think fit, provided that no lot shall be
partitioned without the consent of the chargor
unless each subdivision shall contain five or
more acres”.
30
The Deputy Director found that the particular part of Rule 14 (9)
which the ACLR had not complied with was that he had not made his
order in the form of Schedule K.
-5- [OMK.25-18-2008-II]
5 The appellant now says that the Deputy Director misdirected
himself in law and in fact when he decided that the ACLR had not
complied with Rule 14(9) as the Deputy Director had failed to
consider that the ACLR had indeed made an order for sale in the
form of a Schedule K dated 30.07.2007, in which the ACLR
10 had determined the amount due under the charge and made an order
for sale of the said land. In the affidavit sworn in support of this
motion the appellant has exhibited as “LLK 1” a copy of a letter
dated 30.07.2007 in which the ACLR conveyed his decision, and as
“LLK 2” a copy of the Schedule K dated 30.07.2007 issued by the
15 ACLR.
In opposing this appeal, learned counsel for the respondent
contends that the Deputy Director was not wrong in the decision he
made as the respondent claims that it has no knowledge of the
20 existence of the Schedule K and denies that it was issued together
with the letter of 30.07.2007. To lend support to his contention that
the existence of the Schedule K in this case could not have been in
existence at the date of the hearing of the appeal before the
Deputy Director, learned counsel for the respondent pointed out that
25 if the ACLR had really issued a Schedule K in this case, then:
(a) it is strange that the appellant had not referred to the
Schedule K or even produced it to the Deputy Director at
the hearing of the appeal before him;
(b) if the Schedule K was on the record in the file then surely
30 the Deputy Director should have seen it and would not
have decided as he did;
-6- [OMK.25-18-2008-II]
5 (c) the respondent had not received a copy of the
Schedule K.
In response to the above arguments the appellant has pointed
out that the hearing before the Deputy Director on 06.12.2007
10 took the form of written submissions and that both of its submissions
No. 1 and No. 2 were tendered on the same day i.e. 06.12.2007
which was well before the respondent had tendered its submissions
dated 18.01.2008. As such the appellant had no opportunity
to address the points taken about Schedule K in the respondent’s
15 submissions.
With regard to the doubts raised by the respondent about
the very existence of the Schedule K and the respondents denial
of knowledge of its existence or that the respondent had not received
20 a copy of the Schedule K, in order to show that the Schedule K
was indeed in existence and had been served on the respondent, the
appellant has exhibited an Order granted by the ACLR on 17.08.2007
for service on the respondent of the Schedule K by way of
substituted service. The order for substituted service was granted
25 pursuant to Rule 8 (3) of the Land Rules and was published in the
Borneo Post newspaper on 29.08.2007.
In my judgment the decision in this appeal will turn on
the question whether the ACLR had complied with Rule 14 (9) of
30 the Land Rules by issuing Schedule K. It he had not then clearly
the Deputy Director was right in saying what he did, but if the ACLR
-7- [OMK.25-18-2008-II]
5 had issued Schedule K then obliviously the Deputy Director has erred
in his decision.
Although the respondent doubts the existence of Schedule K at
the material time of the appeal before the Deputy Director, the
10 appellant has in fact produced a Schedule K dated 30.07.2007 issued
by the ACLR which was sent to the appellant’s solicitors under cover
of a letter also dated 30.07.2007 which the appellant has exhibited as
“LLK 8” to the affidavit of Liew Lee Kim affirmed on 16.01.2009. In
my judgment the appellant and the court is entitled to rely on
15 s. 114(e) Evidence Act to presume that the Schedule K which was
sent to appellant was properly and validly issued by the ACLR on
30.07.2007 since the ACLR was performing an official act in relation
to the hearing of the appellant’s application for sale when he issued it
and therefore there is no room to question the fact of its existence as
20 the respondent now seeks to do. Section 114 (e) reads:
The court may presume –
………………………………………………………………………..
(e) that judicial and official acts have been regularly performed;
25
Besides the presumption at law there is also other evidence
before the court to show that the Schedule K was issued and in
existence long before it became a matter of controversy in this
appeal. The ALCR’s letter of 30.07.2007 (‘LLK 8’) refers to it, and, an
30 order for substituted service was made in respect of it. Further the
Schedule K was also advertised in the Borneo Post on 29.08.2007. If
as the respondent suggests, the Schedule K was not in existence or
-8- [OMK.25-18-2008-II]
5 issued with the letter of 30.07.2007 then it is highly improbable that
the appellant would be able to apply for substitute service of it on the
respondent and for the ACLR to grant such an order, and for the
Schedule K form to be published in the newspapers on 29.08.2007.
10 With regard to the respondent’s argument that it is strange that
the appellant did not produce the Schedule K during the appeal
before the Deputy Director, I accept the appellant’s explanation that it
did not have an opportunity to address the point since its submissions
were filed on 06.12.2007 which was before the respondent raised the
15 point in its submissions dated 18.01.2008. A perusal of
the respondent’s Memorandum of Appeal to the Director, exhibited as
“LLK 3” to the affidavit in support of the motion affirmed by
Liew Lee Kim shows that the non-issuance of Schedule K was never
raised as a ground of appeal. Neither was it a ground of appeal that
20 the ACLR had not complied with Rule 14 (9) of the Land Rules. It
was only in the written submissions of the respondent dated
18.1.2008 that the point was taken. In the circumstances I accept the
appellant’s explanation why it did not address the Deputy Director on
the Schedule K.
25
Learned counsel for the respondent contends that if the Court
were now to hold that Schedule K was issued by the ACLR then the
respondent would be gravely prejudiced as under s 41 (1) of the
Land Ordinance the respondent is allowed 30 days from the date of
30 issuance of the Schedule K to appeal to the Director of Lands and
-9- [OMK.25-18-2008-II]
5 Surveys, but the respondent was not served nor made aware of the
Schedule K within the 30 days period.
I do not find the above a valid argument. The Schedule K
was served on the respondent by way of substituted service
10 within the 30 days, albeit on the last day so there is no
non-compliance in that regard. Further the fact of the matter is that
the respondent knew of the making of the order for sale and did
appeal against it, and, the public auction which was fixed on
15.11.2007 was postponed. So in that respect no actual
15 prejudice was suffered by the respondent. Even further still,
apart from questioning the existence of the Schedule K,
the respondent has not pointed out any grounds on which the
Schedule K is objectionable so as to afford it a ground of appeal,
which it was allegedly deprived of taking. For that reason too,
20 I do not think any prejudice has been suffered by the respondent.
Learned counsel for the respondent has also drawn attention to
the fact that Deputy Director has stated in his decision that in both the
appellants submissions No.1 and No. 2 the appellant had ended its
25 submissions by asking that an order be made to sell the
said land and that a Schedule K be issued, which suggests that no
Schedule K had been issued as yet. Counsel for the appellant
has explained that such a request was made in the light of the fact
that the sale by public auction had been postponed and hence the
30 request for an order that the land be sold and the
Schedule K issued if the respondent’s appeal was dismissed by the
-10- [OMK.25-18-2008-II]
5 Deputy Director. But counsel for the respondent says that
there is nothing to indicate in the appellant’s submissions
No. 1 and No. 2 before the Deputy Director that the request for
Schedule K to be issued was because of the postponed sale.
In my view, it is evident from looking at the Schedule K itself that the
10 ACLR had fixed the auction date on 15.11.2007, but
became of the appeal the auction sale was postponed. Hence
the request by the appellant in its submissions for Schedule K to be
issued on dismissal of the appeal is a logical and acceptable
explanation.
15
Counsel for the respondent has also pointed out
that the Schedule K was addressed to the respondent care-of its
lawyer’s office but the appellant chose to serve it on the
respondent and subsequently applied for substituted service. I find
20 nothing sinister in what the appellant did. Counsel for the appellant
explained that the letter from the ACLR dated 30.07.2007 (“LLK 8”)
enclosing the Schedule K, stated that it was to be sent to the
respondent within 30 days and so the appellant did so.
25 In the result for all the reasons given above I find the
Deputy Director had erred in law and in fact when he held that the
ACLR had not complied with Rule 14 (9) of the Land Rules.
The evidence before me shows that the Schedule K dated
30.07.2007 was indeed issued by the ACLR. Therefore, the decision
30 of the Deputy Director cannot be supported.
-11- [OMK.25-18-2008-II]
5 I allow the appeal with costs. I set aside the decision of the
Deputy Director dated 23.06.2008. The decision and order of the
ACLR Kota Kinabalu dated 30.07.2007 is upheld and to be enforced.
10
15
DATUK CLEMENT SKINNER
Judge
20
Date : 27th March 2009
25 Counsel
For Appellant : Mr. Brenddon Keith Soh
Messrs. Ronny Cham & Co.
KOTA KINABALU
30 For Respondent : Mr. Sugumar Balakrishnan
Messrs. Sugumar & Co
KOTA KINABALU
