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competition

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case law, UMBC

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In December 1966 the State Authority of Johore alienated to the second appellants under     section 76 of the   National Land Code, land in Kota Tinggi for a term of 99 years in consideration of a stipulated annual rent and other conditions. The second appellants laid out very considerable sums of money in the develop-ment of the land for the purpose of a sugar plantation and they also granted a number of charges over the land in favour of the first appellant for the purpose of securing the repayment of loans which in November 1977 amounted to $5,334,163.60 with interest.
The rent payable by the second appellants in respect of the year 1977 was $124,080 plus education rate of $31,020. The amount fell due on January 1, 1977 and not having been paid before June 1, 1977 fell to be treated as falling in arrear. Accordingly the Collector of Land Revenue for the district caused a notice of de-mand to be served on the second appellant. A copy of the notice was also served on the first appellants as chargees, so as to give them the opportunity of paying the rent themselves if they chose. The notice required payment of the rent together with penalties within the period of three months. Owing to misunderstandings between the appellants, neither rent nor penalties were paid by either of them within that period. The Collec-tor of Land Revenue thereupon made an order declaring the land forfeit to the State Authority and this order was published in the Gazatte. The appellants then instituted proceedings by motion under  section 418 of the Land Code and appealed to the High Court. Gill C.J in the High Court gave judgment in favour of the appellants granting relief against forfeiture. The respondent appealed to the Federal Court which gave judg-ment allowing the appeal -- see  [1981] 2 MLJ 264. The appellants appealed from the judgment of the Fed-eral Court.
 
Held:
 
(1)     a demand which is excessive in amount whether in respect of arrears fee or notice fee or both cannot be regarded as an irregularity of service or an irregularity of form under  section 134(2) of the   National Land Code, but is a matter of substance. In this case however the amount demanded by the notice was of the correct amount and so there was no basis for the attack on the validity of the notice;
(2)     the granting of an application for relief against forfeiture would constitute the setting aside of the order for forfeiture within the meaning of  subsection (2) of section 134 of the   National Land Code and the provisions of the Code evince an intention that the English rules of equity should not be available to proprietors of alienated land;
(3)      section 3(1) of the  Civil Law Act 1956 cannot be relied on by the appellants for the importa-tion of the English rules of equity as the provisions of the National Land Code are inconsistent with such rules;
(4)     laws relating to tenure, which are referred to in    section 6 of the  Civil Law Act 1956, must embrace all rules of law which govern the incidents of the tenure of land and among these in-cidents is the right in appropriate circumstances, to the grant of relief against forfeiture;
(5)     the National Land Code is a complete and comprehensive code of law governing the tenure of land in Malaysia and the incidents of it as well as other important matters affecting land and there is no room for the importation of any rules of English Law in that field except in so far as the Code itself may expressly provide for this.
 
Case referred to
Zainal bin Hashim v Government of Malaysia [1980] AC 734 742; [1979] 2 MLJ 276 743
 
PRIVY COUNCIL APPEAL FROM MALAYSIA
  
 
Stuart McKinnon QC (Chin Yew Meng with him) for the 1st appellant.
 
John Stuart Colyer QC (Dato V Jeyaratnam and PS Gill with him) for the 2nd appellant.
 
Steward Bates QC (Stephen Allcock with him) for the respondent.
 
LORD KEITH OF KINKEL
 
(delivering the judgment of the Board): These consolidated appeals from the Federal Court of Malaysia raise issues regarding the validity of a notice of forfeiture of alienated land issued under the relevant provisions of the National Land Code 1965 ("the Code"), and also regarding the jurisdiction of the courts to grant relief against such forfeiture.
In December 1966 the State Authority of Johore alienated to the second appellants, under    section
1984 2 MLJ 87 at  88
 76 of the Code, approximately 20,680 acre of land in the district of Kota Tinggi for a term of 99 years in consideration of a stipulated annual rent and other conditions. The second appellants laid out very consider-able sums of money in the development of the land for the purposes of a sugar plantation, and they also granted a number of charges over the land in favour of the first appellants, for the purpose of securing the repayment of loans which in November 1977 amounted to $5,334,163.60 with interest.
The rent payable by the second appellants in respect of the year 1977 was $124,080 plus education rate of $31,020. By virtue of  section 94(2) of the Code that rent fell due on January 1, 1977, and, not having been paid before June 1, 1977, fell to be treated as having become in arrear on that date. Accordingly, the Collec-tor of Land Revenue for the District, pursuant to  section 97(1) of the Code, on June 2, 1977 caused to be served on the second appellants a notice of demand in terms of Form 6A in the First Schedule thereto. As required by section 98 the Collector also served a copy of the notice on the first appellants as chargees, so as to give them the opportunity of paying the rent themselves if they chose. The notice required payment of the rent together with penalties within the period of three months. Owing to misunderstandings between the appellants, neither rent nor penalties were paid by either of them within that period.    Sections 99 and   100 of the Code provide as follows: --
 
"99. If the whole of the sum demanded by any notice under section 97 is tendered to the Collector within the time spec-ified therein, the notice shall thereupon cease to have effect, and the Collector shall cancel, or cause to be cancelled, the note endorsed pursuant to subsection (2) of that section on the register document of title to the land to which the notice related.
100. The Collector shall not during the period specified in any notice under section 97 accept the tender by or on behalf of any person or body of a lesser amount than the sum thereby demanded; and if by the end of that period the whole of that sum has not been tendered to him, he shall thereupon by order declare the land forfeit to the State Authority, and the provisions of Part Eight shall have effect with respect thereto accordingly."
 
On September 7, 1977 the Collector, who is the respondent to the appeals, made an order declaring the land forfeit to the State Authority, and this order, as required by section 130(1), was published in the Gazette on September 15, 1977.
On December 7, 1977 the appellants instituted proceedings by motion under    section 418 of the Code, which provides:--
"418. (1) Any person or body aggrieved by any decision under this Act of the State Commissioner, the Registrar or any Collector may, at any time within the period of three months beginning with the date on which it was communicated to him, appeal therefrom to the Court.
(2) Any appeal shall be made in accordance with the provisions of any written law for the time being in force relating to civil procedure; and the Court shall make such order thereon as it considers just.
(3) In this section "decision" includes any act, omission, refusal, direction or order."
 
The motions were heard by Tan Sri S.S. Gill C.J., Malaya, in the High Court, and on March 6, 1979 he gave judgment in favour of the appellants granting relief against forfeiture. The respondent appealed to the Feder-al Court, and on August 25, 1981 that court (Wan Suleiman and Salleh Abas F.JJ. and Abdoolcader J.) gave judgment allowing the appeal. The appellants' appeal to the Yang di-Pertuan Agong now comes before this Board.
The first issue in the appeal arises out of a contention by the appellants that the sum demanded in the notice dated June 2, 1977 was excessive and that the notice was therefore invalid. The elements making up the sum thereby demanded were quit rent $124,080, education rate $31,020, fees etc., chargeable as rent $31,020 and arrears fee $5 -- a total of $186,125. It is to be observed that the last two items have been en-tered under the wrong heading. Clearly the $31,020 is an arrears fee and the $5 is a fee chargeable as rent. Under    section 5 of the Code "rent" includes any fee due to the State Authority by virtue of rules made under section 14. By virtue of rule 16 and Table III of such rules made in 1966 (J.P.U.39. of 1966) as amended by further rules of 1976 (J.P.U.6. of 1976) there was payable an arrears fee of 20% of the amount due where that exceeded $50. In the courts below the appellants maintained that this fee was to be calcu-lated only upon the amount of quit rent due, exclusive of the education rate. On that basis, the amount de-manded under this head would have been about $6,000 in excess of that legally due. This particular conten-tion was abandoned before the Board. The appellants did, however, renew a different contention based on the amount of $5 demanded by way of "arrears fee", maintaining that this should have been only $2. Rule 17 of J.P.U.39. of 1966 provides: --
"Whenever a Notice of Demand in Form 6A is issued a notice. fee of $2. shall be payable in addition to the arrears fee prescribed in Rule 16 and Table III."
1984 2 MLJ 87 at  89
 
Rule 20 under the heading "Office Fees" provides:--
"The fees prescribed for various preceedings are as specified in Table V."
 
Table V item 15 is in these terms:--
"Notice in  Form 6A of Land Code -- $2."
 
 

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