IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) KUCHING
CIVIL APPEAL NO. Q-02(A)-1470-08/2016
TEBIN BIN MOSTAPA (WN. KP 521120-13-5553)
[as administrator of the estate
of Haji Mostapa Bin Asan, deceased] … APPELLANT
1. HULBA-DANYAL BIN BALIA (WK.KP 660929-13-6139)
2. SOPHEE SULONG BIN BALIA
(WK. KP. 700504-13-5943) … RESPONDENTS
[as joint administrators of the estate of Balia Bin Munir, deceased]
(In the matter of High Court in Sabah and Sarawak at Kuching
OS No. KCH-24-9/2-2016)
In the matter of Section 177 of the Land Code (Cap 81) and Order 7 rule 2 Rules of Court 2012;
In the matter of Caveat No. L 8812/1986 lodged against all that two parcels of land described as Lot 96 Block 8 Muara Tebas Land District and Lot 107 Block 7 Muara Tebas Land District.
TEBIN BIN MOSTAPA (WN. KP 521120-13-5553)
[as administrator of the estate of Haji Mostapa Bin Asan, deceased]
1. HULBA-DANYAL BIN BALIA (WK.KP 660929-13-6139)
2. SOPHEE SULONG BIN BALIA (WK. KP. 700504-13-5943)
[as joint administrators of
the estate of Balia Bin Munir, deceased]
DAVID WONG DAK WAH, HMR HAMID SULTAN BIN ABU BACKER HMR UMI KALTHUM BINTI ABDUL MAJID, HMR
MAJORITY JUDGEMENT OF THE COURT
1. We have read the draft grounds of our learned brother, Justice Hamid Sultan Bin Abu Backer. However, with regret and respect, we are unable to concur with him on the outcome of this appeal. Hence the grounds herein are the views of myself and my sister Justice Umi Kalthum Binti Abdul Majid and reasons as to what we think should be the outcome of this appeal.
2. This appeal calls upon us to construct a provision in a statute, namely section 177 of the Sarawak Land Code (section 177), which would determine whether the Appellant/Plaintiff has the locus standi to remove a caveat in the context of the Sarawak Land Code (Land Code).
3. The learned Judge found that the Appellant had no locus standi in the context of section 177 to remove a caveat on two parcels of land and hence dismissed the application by the Appellant to remove the caveat. It is that decision which is appealed against by the Appellant.
4. We heard the appeal and reserved our decision as we were informed that there is no decision from this Court on the interpretation of section 177 and the legal profession would benefit from a pronouncement together with full grounds from us. We have since further considered submissions from respective counsel and now give our decision and grounds.
5. The Appellant’s father, one Haji Mostapa Bin Asan, sometime in July 1986 entered a sale and purchase agreement to sell two parcels of lands, namely Lot 96 Block Muara Land District and Lot 107 Block 7 Muara Tebas Land District (the lands) to one Balia Bin Munir, who is the late father of the Respondents.
6. The consideration for the sale was in the sum of RM10,368.00 which was fully paid by the Respondents’ father. However, the sale was conditional on the written consent of the Director of Lands and Surveys to be obtained by the Appellant’s father, failing which the sum of RM10,368.00 shall be refunded to the father of the Respondents together with a similar sum as liquidated damages and the sale and purchase agreement shall be deemed as null and
void with no further effect. However, there is no provision in the sale and purchase agreement as to when the aforesaid consent is to be obtained.
7. The Respondents’ father on 31.7.1986 lodged a caveat on the lands vide Instrument No. L. 8812/1986 (caveat).
8. The Appellant’s father passed away on 6.8.1986 and no consent from the Director of Lands and Surveys had ever been obtained by him. The Appellant became the administrator of the estate of his father on 27.9.2010.
9. The father of the Respondents passed away on 23.5.2012 with the Respondents becoming the joint administrators of the estate of their father.
10. The Appellant on 16.2.2016 filed this application to remove the caveat lodged by the father of the Respondents on 31.7.1986.
Grounds of our decision:
11. As rightly pointed by the learned Judge, this dispute can be resolved by determining the locus standi of the Appellant in the context of section 177 which states as follows:
Procedure for removal
(1) Any registered proprietor or any other person having a registered estate or interest in the estate or interest against which a caveat has been lodged, may at any time, if he thinks fit, apply to the High Court for an order that the caveat be removed.
(2) The Court, upon proof that notice of such application has been duly served, may make such order in the premises, either ex parte or otherwise, as in the circumstances seems just.
12. The Respondents’ contention is simply that the Appellant is merely an administrator of his late father without any registered interest in the lands and hence has not fulfilled the requirement of section 177 to launch any action to remove the caveats. That contention was sustained by the learned Judge who had thoroughly examined all the cases relating to the section 177 and concluded that the language used therein did not allow her to give it an interpretation as put forth by counsel for the Appellant.
13. The cases discussed by the learned Judge are cases of the High Court and thus learned counsel for the Appellant has urged us to depart from those interpretations as we are not bound by them.
14. Those High Court cases are Chieng Hock Wong v Lim Guan Liong  6 MLJ 477, David Gramong v Rasit Tar  2 CLJ Rep 535, Kumpulan Laudiri Sdn Bhd v Tang Kah Ung & 2 Ors  1 LNS 97 [HC], and Teng Hung Ping v Hoan Siew Choo & Ors  2 CLJ 662.
15. In David Gramong (supra), the issue there was whether the applicant armed with a registered full power of attorney has a registered interest in the context of section 177 to remove a caveat lodged by the registered owner of the land. Chong Siew Fai J (later the Chief Judge of Sabah and Sarawak) had this to say at page 538:
For the respondent, it was firstly argued that the applicant could not bring this application under s. 177(1) of the Land Code, he not being the registered proprietor of the land in question, nor a person “having a registered estate or interest in the land “. The power of attorney granted in the applicant’s favour, it was contended, merely constituted him
an agent for the respondent (registered land proprietor) and did not confer upon the applicant any registered estate or interest in the land.
Section 177(1) of the Land Code (Cap. 81) provides:
Any registered proprietor or any other person having a registered estate or interest in the estate or interest against which a caveat has been lodged, may… apply to the High Court for an order that the caveat be removed.
The word “interest” is not defined in s. 2 of the Land Code.
In the instant case, the applicant is not merely a purchaser under contract but someone armed with a duly registered valid power of attorney conferring upon him wide range of powers including powers to effect dealings (as defined in s. 2 of the Land Code) and to commence prosecute or enforce actions or legal proceedings relating to any matters in connection with the said lands. In my opinion the words “registered interest ” include a right, power or privilege validly granted over or in connection with land, at lease for the purpose of the said s. 177(1) are broad enough to enable the applicant to make the present application.
The unreported cases of Loh Ing Kiong & Anor. v. Chiang Yong Tiong (Sibu High Court originating motion no. 2 of 1982) and Chong Vui Chiung @ Chong Kuek Ming v.
Bath Pharmacy Sdn. Bhd. (Kuching High Court originating motion no. KG17 of 1989) cited for the respondent lack the features present in our instant case. In the former suit the applicants were mere purchasers under an agreement, and in the latter case, the plaintiff was a de bonis non administrator of a deceased’s estate without any registered estate or interest of the landed property involved.
16. In Teng Hung Ping, the applicant there was the administrator of the estate of Ting Chung Ho and had applied to remove a caveat lodged on a piece of land owned jointly by the deceased and the defendant. The defendant had raised a preliminary issue as to whether the applicant had the locus to do so in view of section 177. Richard Malanjum J (as he then was and now Chief Judge of Sabah and Sarawak) held as follows at page 664:
First, I must state that the case of Loh Ing Kiong & Anor. v. Chieng Yong Tiong (unreported and under Sibu OM No. 2 of 1982 ) cited by learned Counsel for the defendants dealt with the issue of locus standi and s. 177(1) of the said Code. His Lordship, Chong Siew Fai J. in his judgment said this:
Section 177(1) of the Land Code provides, inter alia, that any person “having a registered estate or interest” in the estate or interest against which a caveat has been lodged may apply for its removal. In the instant case the
applicants entered an agreement (Exh. “A” annexed to the applicants’ affidavit made on 30 July 1982) whereby subject to fulfilment of the terms and conditions therein, the sublot in question is, in due course, to be transferred to them or their nominees. To that extent the applicants can be said to have an interest in the land. But have they a “registered” interest? On the material before me, there is no evidence that they have a “registered” interest or estate. I am also unable to agree that the word “registered” can be read to mean “registrable”. In the circumstance, the applicants have not established themselves to fall within s. 177(1) of the Land Code and therefore have no locus standi to apply for the removal of the caveat thereunder.
Having read the judgment of that case and in view of the provision of s. 177(1) of the said Code I entirely agree with the interpretation of s. 177(1) as stated thereof. The element of “registered interest or estate” is essential under the said s. 177(1). As observed in the case of David Gramong v. Rasit bin Tar  3 CLJ 2143 a registered power of attorney has satisfied the requirement of ‘registered interest’ under s. 177(1) of the said Code.
It may appear to be harsh in construing s. 177(1) of the said Code as such. But courts only interpret the provisions of
statutes as they stand. Indeed in the case of Malayan Banking Bhd. v. Pendaftar Hakmilik Negeri Pahang & Anor.  1 MLJ 119/  2 CLJ 999 Lamin J. construed s. 321(3)(b) of the National Land Code as to require the proprietor to be the applicant to have the registrar’s caveat cancelled as the subsection of the National Land Code so provides.
In Cheong Kong Enterprise Co. Sdn. Bhd. v. Foong Seong Mines Ltd. & Ors.  1 LNS 24  2 MLJ 246 the then Federal Court also made it clear the locus standi of the appellant in that case was governed by the provisions of the Land Code (Cap 138) either s. 326(1) or s. 327.
Anyway, I do not think the plaintiff is helpless in this case. In my view s. 178 of the said Code should be available to him. Such a view has also been expressed by the learned author of the book entitled ‘Caveats under the Sarawak Land Code (Cap. 81) – Law and Practice’ on page 80. In fact in the case of Philip ak. Jimmy v. Ng Moi Kiew (Sibu Civil Suit No. 35 of 1979) (unreported) the personal representative of the estate of the deceased in that case invoked s. 178 of the said Code to enable her to have the transfer to herself registered.
Appellant’s arguments before us:
17. Counsel for the Appellant urges us not to follow the decision in Teng Hung Ping (supra) and the other referred cases because they were decided “per incuriam” which in plain language “a
decision made through want of care, through inadvertence or by mistake” (see Kesatuan Perkeja-perkerja Bukan Eksekutif Maybank Berhad v Kesatuan Kebangsaan Pekerja-pekeja Bank & Anor  1 LNS 296). Such decisions of course have no binding force on any Court.
18. It is submitted that those cases were decided without taking into consideration of section 218 of the Land Code which states as follows:
“218 Legal representatives
In any form under this Code, the description of any person as proprietor, transferor, transferee, chargor, chargee, lessor, lessee or sublessee, or as trustee, or as having or taking any estate or interest in any land, shall be deemed to include the heirs, executors and administrators and assigns of that person.”
19. Premised on section 218, it is submitted that by virtue of the definition of a proprietor to include an administrator, the description of a registered proprietor under section 177 must include an administrator which in this case before us means that the Appellant as an administrator has the locus standi to apply for removal of caveat under section 177 of the Land Code. Not to recognise the
Appellant’s locus standi would mean that an administrator of a deceased’s estate cannot apply for removal of a caveat lodged against land under the estate but could sue or be sued in relation to the said land which forms part of the estate which in the eyes of learned counsel would be ludicrous interpretation of section 177 which Courts should always avoid when construing a piece of legislation.
20. Further counsel referred us to the provisions of the
Administration of Estates Ordinance (Cap. 80) and the Civil
Law Act 1956 which, the former, in essence provide that all the
property, estate and effects of the deceased shall vest in the
administrator and that the administrator shall have the right and
obligation to recover the same. The relevant provisions are:
Section 15 of the Administration of Estates Ordinance (Cap. 80) provides:
“The issue by a Probate Officer of probate or letters of administration shall vest in the executor or administrator named therein, and if more than one, jointly, for the purpose of administration, all the property, estate and effects of the deceased set out in the list annexed to the grant and all property exempted under sub-section (1) of section 4.”
Section 17 of the Administration of Estates Ordinance (Cap. 80) provides:
“On obtaining probate or letters of administration the executor or administrator, as the case may be, shall forthwith-
(a) collect and recover all the property, assets and effects covered by the grant;…”
Section 8(1) of the Civil Law Act 1956 provides:
“ (1) Subject to this section, on death of any person all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate:
Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to any claim for damages on the ground of adultery.”
21. Considering the totality of the relevant provisions set out above, it is vehemently submitted by learned counsel that this Court must give a purposive interpretation to section 177 such that it does not damage the statutory rights of an administrator. In the words of learned counsel, “to hold that an administrator of a deceased’s estate cannot apply for removal of caveat lodged against the land would mean that a deceased’s right under section 177 of the Land Code is extinguished upon his death”.
22. We must say that the argument put forth is not without merit or attraction. Looking at it in a holistic manner, a practical interpretation to section 177 would be to include an administrator like the Appellant. However, Courts must adhere to their paramount constitutional duty and that is not only to interpret but also to enforce the laws enacted. And in interpreting what the law is, the Courts are to expound the language of the Act in accordance with settled rules of construction.
23. The golden rule of interpretation in construing a statute is to ascertain the true intention of the legislature and in doing that the Courts are duty bound to adopt an approach that promotes the purpose or object underlying that particular statute. To ascertain the meaning of a clause in a statute, the whole statute must be looked at and not merely at the clause itself. Where the language of the words employed are clear and succinct giving no rise to any ambiguity, the Courts must interpret them as they are. Only when there is some doubt from the words employed in the legislation can the Courts adopt a purposive approach to the interpretation of legislation.
24. Reverting back to section 177, it is housed in the Land Code of Sarawak. The Land Code is a “Torrens Title” piece of legislation. Torrens title is a system of land registration, in which a register of land holdings maintained by the State guarantees an indefeasible title to those included in the register. Land ownership is transferred through registration of title instead of using deeds. The pivotal provision in the Land Code on the concept of indefeasibility and registration is section 132 which states as follows:
(1) Subject to this Code, the registered proprietor of any estate or interest in land to which this section applies shall, except in the case of fraud, hold such estate or interest subject to the interests noted on the Register but free from all other interest except-
(a) the estate or interest of a proprietor included in the Register in priority to the title under or through which the first mentioned registered proprietor claims, being an estate or interest to which this section applies;
(b) as regards any portion of land included in the issue document of title by virtue of a wrong description:
Provided that this exception shall not apply if the registered proprietor is a purchaser in good faith and for value of the portion of land affected, or derives title through such a purchaser;
(c) the implied conditions, obligations and restrictions referred to in section 32;
(d) the interest of a tenant in possession of land for a term not exceeding one year;
(e) any charge affecting the land under any written law; and
(f) any easement lawfully created and subsisting on the 1st day of January, 1958, or at such later date when the estate or interest affected by such easement becomes included in the Register.
(2) This section shall apply to any estate or interest in land included in the Register, other than an estate or interest included in a previous register under the former Land Ordinance [Cap. 27 (1948 Ed.)] and included in the Register by reason only of section 112(2) or an estate or interest acquired by a foreign person, foreign company, foreign corporation or foreign body in contravention of section 13A, 13B, 13C or 13E.
25. Having established that the policy and rationale of the Land Code is that of registration, we now look at section 177. The paramount word in that section is undoubtedly the word “registered”. In plain English, unless one has a registered interest in the scope of the Land Code, one has no locus standi, pure and simple. The Land
Code, as we have mentioned earlier, is a Torrens title system which recognises registered interest only.
26. Under such circumstances, we are constitutionally duty bound to interpret the words as we find them. There is no room for us to interpret any other way. To do so would be entering into the realm of legislating which can never be the duty of the Courts.
27. Based on the above, we see no reason to accede to the interpretation given by learned counsel for the Appellant. The interpretations given by two Chief Judges of Sabah and Sarawak thus are entirely correct and are of both persuasive and high authorities. As pointed out by the present Chief Judge of Sabah and Sarawak, the Appellant is not without remedy as he can still avail section 178 of the Land Code which provides that the Appellant may have himself registered as the administrator of the estate of Haji Mostapa Bin Asan. With such registration, he will have clothed himself with the locus standi to mount an action to remove the caveat.
28. This is a case where we have given an interpretation to a statute which is reflective of the policy or rationale behind the legislation. The Land Code as alluded by us earlier is premised on the Torrens title system where registration is paramount. Section 177 is but one example within the Land Code recognising only registered interest only.
29. Further, our interpretation is nothing more than an application of one of the basic principles of statutory interpretation known as “Generalia specialibus non derogant which means universal things do not distract from specific things. This proposition of law says that when a matter falls under any specific provision, then it must be governed by that provision and not by the general provision. The general provisions must submit to the specific provisions of law. In this case, the Land Code in which section 177 is found is the specific legislation on land matters in Sarawak while the Administration of Estates Ordinance (Cap. 80) and the Civil Law Act 1956 are general legislations relating to administration of estate.
30. For reasons stated above, we see no error in the decision of the learned Judge and hence we dismiss the appeal with costs in the sum of RM5,000.00 subject to allocatur fees. We also order the deposit be refunded.
Dated : 27 July 2017
(DAVID WONG DAK WAH)
Court of Appeal Malaysia
For the Appellant : Albert Tang
With him Andy Tan Messrs. Andy & Associates
For the Respondent
Messrs. Jethi & Associates
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision.