sabahlaw

I was looking at the documents as below

A careful look at the deed will show that this is a State government trying to grant POWER to a Corporation (created by parliament). There is also a clear ADMISSION by the Federal govt at that time that this resources and power fell under the exclusivity of the State.

The problem here is that whether a State government could validate this Act merely by a GRANT under the Petroleum Development Act (PDA). In short, whether the PDA (not being a Federal government entity but a separate entity in the form of a Corporation) is capable of being granted such power, resources by an Act of Parliament.

There is also the issue of the word “Malaysia” which is beyond the power of the State government as its Constitution is only limited to within said State boundaries (whether onshore or off-shore).

Look at the Federal Constitution

74. Subject matter of federal and State laws.

(1) Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule).

(2) Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.

(3) The power to make laws conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.

(4) Where general as well as specific expressions are used in describing any of the matter enumerated in the Lists set out in the Ninth Schedule the generality of the former shall not be taken to be limited by the latter.

77. Residual power of legislation.

The Legislature of a State shall have power to make laws with respect to any matter not enumerated in any of the Lists set out in the Ninth Schedule, not being a matter in respect of which Parliament has power to make laws.

Under the CURRENT schedule 9 of the Federal Constitution

The federal govt is in charge of

4. Civil and criminal law and procedure and the administration of justice, including -

(j) Admiralty Jurisdiction;

8. Trade, commerce and industry, including -

(j) Subject to item 2 (c) in the State List: Development of mineral resources; mines, mining, minerals and mineral ores; oils and oilfields; purchase, sale, import and export of minerals and mineral ores; petroleum products; regulation of labour and safety in mines and oilfields;

9. Shipping, navigation and fisheries, including -

(a) Shipping and navigation on the high seas and in tidal and inland waters;

(b) Ports and harbours; foreshores;

(c) Lighthouses and other provisions for the safety of navigation;

(d) Maritime and estuarine fishing and fisheries, excluding turtles;

(e) Light dues; and

(f) Wrecks and salvage.

Now in the State list at 2(c) it says

(c) Permits and licences for prospecting for mines; mining leases and certificates;

Other than the admission above, common sense must prevail as these petroleum resources would be hidden under the sea (in the seabed) which are still State matters (being not in the Fed nor State list above). So while the Federal govt has power to legislate the development of the natural resources, it does not have the power to legislate the territories (sea-beds) where these resources are found.

And even assuming this Power is granted to Petronas, it is wrong to grant this in perpetuity (or irrevocable) as this is a state power and will prejudice the rights of the inhabitants of the State in the same way as usurping the territorial rights of the state government to an non-governmental entity (ie Petronas) which’s only concern is exploiting the resources.

The alternative view is that the State still has this power as it could not validly be granted to a corporation (even by an act of Federal Parliament as this power is a RESIDUAL power beyond the Federal being one that is not assignable or grantable) and as such the State still possess the power to make laws as to its sea-beds including all natural resources therein underground, ie petroleum.

More important if you must ask the obvious, is that there is NOTHING in the Federal constitution which expressly allow the granting of residual power to an non-government entity – ?? … Ops did Petronas know this ?
The other obvious question is what was the motive for state governments to grant away their natural resources for almost nothing ?

So what has this got to do with Sabah you asked ? Well, think about this for a while as this could be sensitive ?

Malaysia Federal Court’s decision (21.1.2010), in the case of Tan Ying Hong vs Tan Sian San reinforced defer indefeasibility back into West Malaysia under the NLC after overturning Adorna Properties Sdn Bhd vs Boonsom Boonyanit. The effect of Tan Ying Hong is that only a subsequent purchaser will gain title (for a bona fide and without notice) transaction. In Adorna, the original owner lost her titles to Adorna after a culprit forged her signature on the titles (copies issued by Land Office after the culprit declared them stolen) and transfer them to Adorna. The law as it stands now is that Adorna will not gain the titles but anyone buying from Adorna (‘subsequent’) will get good titles – this is the principle of deferred indefeasibility which means it is not immediate as in Adorna – ie upon registration anyone will get good title – the principle of Torrens. Immediate indefeasibility is clearly stated in countries like Australia and to mitigate fraud and forgery (as in Adorna’s case), a fund was setup and available to help the victims. In this way the original principle of Torrens (from South Australia) is maintained and continued in its spirit.

Now in Sabah, we do not have NLC and instead we have Sabah Land Ordinance (SLO). The most well known case here is Borneo Housing Mortgage Finance Bhd v Time Engineering Berhad [1996] 2 CLJ 561 (Borneo Finance Case). However this does not deal with the issue of fraud as in Adorna but merely confirmed Section 88 of SLO as paramount.

88. No title or claim to land valid unless registered.

No new title and no dealing with, claim to or interest in any land except land still held under native customary tenure without documentary title shall be valid until it has been registered in accordance with the provisions of this Part.

As can be seen in Sabah, we used “validility” as the test and not indefeasibility as in the NLC (see Section 340 where the word “indefeasibility” is clearly expressed). Obviously the fact that a dealing can be valid does not mean it is also indefeasible (say in fraud or forgery).

So the position in Sabah is unique and in a way modified the Torrens System much the same way as “deferred indefeasibility” do in practise. In the past, Courts’ decisions have been a mixed bag with some Judges calling to align with West Malaysia (ie with Adorna – even though as can be seen now was wrongly decided ) by endorsing the principle of immediate indefeasibility. Some enlightened would consider the validity to be paramount but be defeated by fraud or forgery. See Wee Yee Ying v Emin Bin Sadi (Civil Suit K 22-153-1995) unreported in open court 2005 in KK by Datuk Ian Chin J (now retired).

The problem with land dealings in Sabah is well known to all and want of transparency. Currently, there are still many without titles to their land as the master title is still undivided to individual titles despite over 30-40 years wait. There are provisional leases (unsurveyed) that date back to 70s. A first step is to computerise the entire registry and make it available online instantly with security such as using MyCard (Microchip Identification Card) for transfer etc. It currently takes more than 1 day to check a title (if you are located in KK).

One also notice in the majority of cases this will involve Native Titles – and the Native Court or Syariah Court endorsing the transfer ( the con-man, shamster, fraudster claiming to be the son or executor of the land – in many cases the owner is still alive). The buyers will argue that they are subsequent bona fide buyers without notice (ie the first transfer was to the fraudster who later sold to them).

I have even encountered a case where the Title was printed and issued under a wrong section but the Judge rebutted this and you can read the judgement here http://tinyurl.com/nu448p. This case was an eviction case and it went to the Court of Appeal.

But other than the technical and administrative problems, the SLO should not be amended given the reason that we already subscribed to “deferred indefeasibility”. Furthermore, this reversal in West Malaysia will also see a number of law firms being sued now by disgruntled bona fide owners without notice (like Adorna – first buyer from fraudster in owner’s name) and will make conveyancers to be more vigilant. Also consider if there is any limitation to action in fraud. www.mylawyer.com.my/pdf/Limitation_Act.pdf

Where there has been a fraud or concealment however, the Limitation Act 1953 provides for an exception. Section 29 of the Act states that where an action is based upon the fraud of the defendant or his agent or where any fact relevant to the plaintiff’s cause of action was delibrately concealed or where such an action is based on mistake, the time of six years does not run until the discovery of the fraud, concealment or mistake by the plaintiff. The effect of this section is plainly seen in the case of Lim Yoke Kong v Sivapiran s/o Sabapathy [1992] 2 MLJ 571 where the defendant’s insurers took great pains to conceal themselves from the knowledge of the plaintiff and thus the latter’s claim was not held statute barred as a result. Limitation periods also do not run where a plaintiff is under disability until the expiry of such a disability under section 24 of the Act.

Cheers

STATE OF SABAH

I assent,

TAN SRI HAJI MOHD. FUAD STEPHENS,
Yang Dipertua Negara,

27TH SEPTEMBER, 1973.

No. 7 of 1973

An Enactment to authorise the extension of the provisions of the National Language Act, 1967, to restrict the use of the English language for official purposes and to provide for matters incidental thereto.

WHEREAS Clause (1) of Article 161 of the Federal Constitution provides that no Act of Parliament terminating or restricting the use of the English Language for any of the purposes mentioned in Clauses (2) to (5) of Article 152 shall come into operation as regards the use of the English Language in any case mentioned in Clause (2) of Article 161 of the Federal Constitution until ten years after Malaysia Day;

AND WHEREAS Clause (3) of Article 161 of the Federal Constitution provides that, without prejudice to Clause (1) of Article 161, no such Act of Parliament as is there mentioned shall come into operation as regards the use of the English Language for proceedings in the High Court in Borneo or for such proceedings in the Federal Court as are mentioned in Clause (4), until the Act or the relevant provision of it has been approved by enactments of the Legislatures of the Borneo States, and no such Act shall come into operation as regards the use of the English language in a Borneo State in any other case mentioned in paragraph (b) or (c) of Clause (2) of Article 161, until the Act or the relevant provision of it has been approved by an enactment of the Legislature of the State;

AND WHEREAS the period of ten years after Malaysia Day has lapsed;

AND WHEREAS the Legislature of the State of Sabah seeks to give its approval under Clause (3) of Article 161 of the Federal Constitution with regards the use of the English language for proceedings in the High Court in the State or for such proceedings in the Federal Court as mentioned in Clause (4) of Article 161 of the Federal Constitution and for purposes of restricting the use of the English language in the State in the Legislative Assembly or for other official purposes;

NOW THEREFORE, ENACTED by the Legislature of the State of Sabah as follows:

1. Short title

This Enactment may be cited as the National Language (Application) Enactment, 1973.

2. Approval under Article 161 of the Constitution.

The extension of any Act of Parliament terminating or restricting the use of the English language for any of the purposes mentioned in Clause (2) of Article 161 of the Federal Constitution is hereby approved.

3. Language used in native courts or for any code of native law and customs.

Notwithstanding anything in section 2, in the State a native language in current use in the State may be used in native courts or for any code of native law and custom.

CERTIFIED by me to be a true copy of the Bill passed by the Assembly on Tuesday, the 25th September, 1973.

DATUK HAJI MOHD. KASSIM BIN HASHIM,

Speaker.

161. Use of English and of native languages in States of Sabah and Sarawak.

(1) No Act of Parliament terminating or restricting the use of the English language for any of the purposes mentioned in Clauses (2) to (5) of Article 152 shall come into operation as regards the use of the English language in any case mentioned in Clause (2) of this Article until ten years after Malaysia Day.

(2) Clause (1) applies -

(a) to the use of the English language in either House of Parliament by a member for or from the State of Sabah or Sarawak; and

(b) to the use of the English language for proceedings in the High Court in Sabah and Sarawak or in a subordinate court in the state of Sabah or Sarawak, or for such proceedings in the Federal Court or the Court of Appeal as are mentioned in Clause (4); and

(c) to the use of the English language in the State of Sabah or Sarawak in the Legislative Assembly or for other official purposes (including the official purposes of the Federal Government).

(3) Without prejudice to Clause (1), no such Act of Parliament as is there mentioned shall come into operation as regards the use of the English language for proceedings in the High Court in Sabah and Sarawak or for such proceedings in the Federal Court or the Court of Appeals as are mentioned in Clause (4), until the Act or the relevant provision of its has been approved by enactments of the Legislatures of the States of Sabah and Sarawak; and no such Act shall come into operation as regards the use of the English language in the State of Sabah or Sarawak in any other case mentioned in paragraph (b) or (c) of Clause (2), until the Act or the relevant provision of it has been approved by an enactment of the Legislature of that State.

(4) The proceedings in the Federal Court or the Court of Appeal referred to in Clauses (2) and (3) are any proceedings on appeal from the High Court in Sabah and Sarawak or a judge thereof, and any proceedings under Clause (2) of Article 128 for the determination of a question which has arisen in proceedings before the High Court in Sabah and Sarawak or a subordinate court in the State of Sabah or Sarawak.

(5) Notwithstanding anything in Article 152, in the State of Sabah or Sarawak a native language in current use in the State may be used in native courts or for any code of native law and custom, and in the case of Sarawak, until otherwise provided by enactment of the Legislature, may be used by a member addressing the Legislative Assembly or any committee thereof.

I recently gave some comments on a debt problem and I think this may also benefit some here.

1. The bank sought and auctioned out a property (without title) at less than the current market price.
2. The bank then sought a summary judgment against the debtor for the balance.
3. Costs for self-represented defendant.

As to whether one can do anything in (1), my comment is nothing. This is because the Bank has no duty to the borrower to get the BEST price, although the Bank could not neglect (in conscience) the interest of the Borrower’s completely.  The Bank is however must provide the maximum exposure to sell the property (say if the bank advertising is defective in any way then you may raise this). (See Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676) But it is also important to bear in mind that the Bank does not need to ensure the property is sold with a vacant possession and it is up to the new owner (assignee) to get rid of the debtor (or tenants of the debtor) in the property. Now if you wish to stop the auction then you can also ask for an injunction against the Bank or Property Developer who is also registering the transfer (most property without title has a clause which says that all transfer to be effected by the Developer for a fee). However, injunctions are rarely granted subject to whether there are triable issues (fraud), balance of convienence. In most cases, an undertaking or a deposit of the debt amount is required with the Court (to maintain status quo). Obviously the Judge can decide the amount to be deposited but equity loath to do justice at last minute, so any action that is needed must be preferably with notice (inter-parte).  Once you stop the auction, then you can bring in your grievances like lack of notice, or amount is questionable etc. However, once it is sold then your rights are limited.

If you have a property with TITLE then your rights are much better and are governed by Land Ordinance or NLC (see charge) and there are steps that the bank must take. In particular the Bank cannot take dual action against you (ie applying the remedy in the charge AND suing to recover the same over in debt).

In (2), one must understand the principle of a summary judgment – which means the plaintiff (bank) is asking your case to be granted judgment in his favor as there is NO dispute of facts or law or there is no triable issues (as in the jargon). This means there is no full trial and the judge will make a decision based on what is stated in the Bank’s affidavit. This method is fast and cheap. Remember if you do not show up at Court then it is most likely you will get judgment in default (JID) (another type of judgment). The difference between the two is that in JID, it is by default (absent). What can you do in face of a summary judgment ? You need to reply and to state whether there are any dispute of facts or law. In debt cases, it is common for the bank to issue you with a certificate of indebtness. This is a very important document as it is conclusive evidence for the purpose that you owe the amount and can only be rebutted by evidence to the contrary (say something from the bank that says otherwise). Now if the Bank did not include this certificate for the remaining balance (as in this instance) then you may question this point. You should also pay attention to the format of a summary application which is unique and found in the Court Rule Book. An important element is that in the Bank’s affidavit, sources must be named (else this can be struck out). But remember even if you defeat this summary application, all it means is that the Judge will order for trial ( in short merely delaying the process). This may help you to renegotiate with the bank but it does not reduce the costs to you. Once a bank got a judgment against you then the bank will have to enforce this by either garnishee or bankruptcy. There are consequences to each of the methods here which you can find on the net. Suffice to say they are not pretty or helpful to your future.

In (3) and this is most frustrating because as a self-represented defendant you are not entitle to costs and in most bank cases (assuming you actually owed the bank money) will win, then you will need to face the costs of the bank’s legal costs. This amount may range from 5-50K depending on the complexity – the number of mentions – the interlocutories -the trial – etc. In my experience, unless the bank made a mistake or its lawyers made a mistake, then your chances of winning is not great or at all. The law on debt is old and clear which is to say a debtor must repay his/her debt and contracts are designed for this purpose. Again, my personal advice is that if you are in trouble with the bank please negotiate with them. There are facilities to help you without losing your home and even the banks will be reluctant to foreclose them. You can suggest a longer term, more guarantees, get a second job, anything to avoid the bank from initiating proceedings against you (which costs will be in your account). BTW, you are allowed to be present at the auction of your own home. The bank’s lawyers will be present as well and up to this time (before auction starts) it is still within your power to redeem your home by paying the full due amount.

Hope this may help some who are facing this problem and remember this is not legal advice and I do not have any relationship with you.

CK