Federal Court to decide on seminal case for land title protection

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KUALA LUMPUR: The Federal Court will decide tomorrow on a land acquisition matter where the panel will have to answer this pertinent question: “Is your land title worth the paper it is printed on?”

This is the question Ishmael Lim Abdulah, 53, has been asking the courts to answer in the affirmative for the past decade.

He has lost in both the High Court and Court of Appeal but hopes the country’s highest court will not set a precedent that can make land grabers exploit cases like his.

Despite the federal government acquiring his family property in 1974, the ownership transfer was not registered at the Gombak Land Office.

This subsequently led to an exchange of the land between three people, all with the approval of the land office. Today, although Ishmael is the registered land owner, he faces eviction.

The Federal Court will also have to decide if Ishmael — if he loses his land — gets compensated with the current market value of RM1.5 million for the 5,000 sq metre piece of land or the RM6,000 offered by the government in 1974.

Also, the land was supposedly acquired 30 years ago for a military college, but that project has now moved to Putrajaya.

Hence the court will decide whether the original acquisition is null and void since the land is now not being acquired for its original purpose.

The saga began when Ishmael’s late father bought the property in Templer’s Park in 1975 for RM6,000 from Singaporean Lim Cheng Kim.

The lower courts heard that Cheng Kim did not know that the land had been acquired when she sold the land to Ishmael’s father.

When buying the land, Ishmael’s father made checks with the land office then which indicated it was without any encumbrances. Ishmael inherited the land in 1992 and the transfers were done at the Gombak Land Office.

Just as his father did before, Ishmael continued paying quit rent and even charged the property to a bank for a loan in 1993.

He started a nursery business there and built a home where he and his wife raised their daughter.

However on March 9, 2005, the Gombak Land Office issued him an eviction notice saying his land and 12 other plots have been acquired for the military college. Between 1993 and 2005, five land searches confirmed Ishmael as the registered owner of the property.

Ishmael then took the Federal Land Commissioner and the Gombak Land Office to court on April 7, 2005 to challenge the eviction notice.

The High Court, then under Justice Wan Arfah Wan Ibrahim, ruled in his favour, keeping things at status quo until Ishmael and the land administrators sorted out the land issues.

In spite of this order, the Land Office proceeded to cancel Ishmael’s ownership of the land.

However when Ishmael filed contempt proceedings, his name was reinstated.

He eventually lost the High Court case and the Court of Appeal also ruled against him.

Appeal Court judge Justice Datuk Mah Weng Kwai held that the land acquisition process began in 1973 and was completed in 1974, hence the land had since belonged to the state.

In a unanimous decision, the three-men bench ruled: “Lim Cheng Kim, a Singaporean woman who is the previous owner, no longer has good title of the land, therefore the transfer of the land to Lim’s father is null and void.”

The other presiding judges were president of the Court of Appeal Tan Sri Md Raus Sharif and Datuk Abdul Malik Ishak.

Notably, the Court of Appeal held that the enforcement of “Form K” to register the acquisition — required under National Land Code — was merely a formality and not fatal to the acquisition process.

Ishmael submitted that Form K was fatal to the acquisition, because his father would not have bought the land if a change of ownership was registered in the first place.

The Court of Appeal also held in a precedent case that although Ishmael has been paying quit rent, assessment fee and was able to charge the land for a bank loan, it “does not prove that his title is indefeasible”.

“I did everything by the book. This sets a bad precedent. If one cannot rely on information from the Land Office, how else are we to know the status of our land?” he asked.

This article first appeared in The Edge Financial Daily, on November 17, 2014.