Case Title: Land Ownership Dispute
Native Judges: WKAN Andrew Lidaun, Kg Kolopis
KK Ationg Totu, Kg Mahandoi
KK Michael Sikawah, Kg Tunoh
Dates: First Hearing: 3 Sept 2013, Plaintiff Testimony
2nd Hearing: 24 Sept 2013, Defendant Testimony
and relevant village headman testimony
3rd Hearing: 10-10-2013, Testimonies of 4 plaintiff's witnesses
Verdict Date: 15-11-2013
Plaintiff Representative: Violet Matilda Ozulu
Defendant : Clarence Sipain Mojinggol
Verdict Summary: The Native Court Decided in favour of plaintiff
Defendants reaction: Informed he will appeal the verdict within 60 days.
Plaintiff Testimony:
The intention of her submission was to claim a share of a customary land at Ramaya with rent 40 cts and area 0.78 acre and the former land title was NT 1043. This land was jointly owned by her father Ozulu Jouling and Jimain Malangin. Her mother is Livina Malangin who is the sister of Jimain.
(Ozulu is therefore the brother-in-law of Jimain and that explains why they jointly bought this piece of land from a previous owner)
Jimain's children who are also interested parties in this land are Joseph Mohd Jimain @ Jomani and Angeline Jimain (who were present in court)
In 1964, a first cousin of Jimain and Livina by name of Stephen Sipain Mojinggol-SSM (defendant's father) begged both Ozulu and Jimain for one lot sufficient to build a house on the said land.
Based on family affection, both owners agreed and no sale and purchase agreement was involved.
In order to build the house SSM needed a loan from Borneo Housing that required collateral. Since the land was in the name of the original owners, SSM requested that land title be changed to his name in for the purpose of a loan amounting to RM15K which was obtain on 24-9-1964.
Based on trust alone there was no written agreement and the remaining lot of the land is suppose to be returned to the owners after the loan was fully paid.
When the loan was settled, SSM himself took the initiative to hire a licenced surveyor and sumitted the plans for Lot 1 and Lot 2 which was approved by the PPHT (ACLR or Assistant Collector of Land Revenue in English) on 23 Sept 1978 and the District Officer at that time was Mr Simon Gonsilou.
The proposed subdivision was not carried out because the house built by SSM had encroached on a neighbouring land owned by Angeline Jimain.
Before this subdivision can be settled, the joint owners have died.
Jimain passed away on 15-11-1983 while Ozulu followed on 26-3-1984.
In the absence of the rightful owners, on 18-12-1984, SSM took the opportunity to transfer the ownership of the land to his son Clarence Sipain Mojinggol - CSM, without the knowledge of the family of the original owners.
Based on records on the land title, in 1986 CSM then charged this land for a loan of RM12K at Hongkong and Shanghai Bank for reasons known to him alone.
Base on his date of birth 4 Feb 1961, CSM was just 23y.o. when the land was transferred to him and charged it to the bank when he was 25 y.o.
When the judge asked why this land was never queried all these time, plaintiff informed that she telephone CSM younger brother who is a lawyer by the name of Oswald, and was told that the land title is in Kuala Lumpur because of some loan.
On 21st Jun 2013, CSM issued a notice to demolish a house in Lot 2 currently being occupied by a relative of the plaintiff, using the service of a legal firm Bulagang & Co.
The relative's name are Celestina Gilong and Simon Onggitom. They have built a small house on Lot 2 with approval and one-off token payment of RM3K, from Angeline Jimain and her late husband Johnny Bosuin who have been administrating the land since the original owners have died.
Another old house in Lot 2 currently occupied by Jomani Jimain Abdullah was demolished on 6-7-2013 without any notice. This house was already existing long before SSM built his house in Lot 1, and once belonged to the grandparents of Jomani.
In conclusion, plaintiff submited to the court for the return of only Lot 2 to the family of the original owners and hope that the dispute can be fully settled in this native court. She said that there is no claim on Lot 1 since what is given away by their parents shall be honoured.
(STATEMENT signed by Plaintiff)
DEFENDANT'S REBUTTAL TESTIMONY
CSM stated the following:-
1. There was a proposed "combination and subdivision" not subdivision alone. Due to the proposed combination, it needed two land titles namely NT 4714 and NT 10893. This proposal was agreed.
2. Lot 1 would then belong to Stephen Sipain Mojinggol while Lot 2 would belong to Jimain Malangin and Ozulu Jouling
3. This proposal was agreed and approved by the PPHT on 23-Sept-1976 and his late father engaged a professional surveyor in 1980
4. After the survey was completed, the land title for NT10893 was submitted to JTU for the purpose of subdivision but could not be carried out because the title for NT 4714 was not submitted for reasons I did not know. This land title is involved because the house built by his father was also occupying this land. (he did not say why or was that agreed to by the land owner of NT4714)
5. The land owner of NT 4714 was Jimain Malangin alone and he did not submit the title to JTU. After he died, request through lawyer to Angeline Jimain@ Binjumis to submit the title received no coorperation.
6. His father then withdrew the land title for NT 10893 from JTU after not getting any resolution.
7. His younger brother Oswald Mojinggol went overseas to UK to study for a law degree, and the land title NT 10893 is now kept by the Yayasan Sabah as a security for a study loan hence the land title is still being used because the loan is not yet fully settled.
8. The land was bought by my father and the proof is in a form of a receipt for payment of NT 10893 for an amount of 500 ringgit and the date of purchase is 19-5-1968. The receipt was signed by Jimain as recepient and witnessed by Mr Monjuil as witness (now deceased) for the sum of 500 ringgit. (not RM at that time)
9. As for the contention by plaintiff that family affection was involved, it is not true as the land was bought for a price of 500 ringgit, please refer to the receipt
10. In my knowledge, the other land NT4714 was sold by Angeline Jimain to one MR Vincent Benjamin Tamin for RM 50,000 on 23-2-2001.
I should be asked first before selling this land since I have vested interest in the said land since my house is also partially sitting on the land. As a family matter I should be informed of this sale but I only got to know in 2013.
11. Before this the plaintiff has put a caveat on the land NT 10893 for reasons I did not know but I succeeded in removing the caveat in 2012.
After removing the caveat, I proceeded to engage lawyers Bulangang & Co in order to defend my rights in Jun 2013 as owner of the land NT 10893.
12. This land was transferred to me by my father because I stood as guarantor for the Yayasan Sabah loan for my younger brother.
Thats all, statement signed.
STATEMENT BY village chief Benedict Bestan John, KK of Ramaya
The Native Court then proceed to call opinions of the relevant village chief as he is part of the Native Court system.
1. He said he knows about this land
2. As far as he knows this land NT 10893 is owned by Jimain and Ozulu
3. From the land title, there is no sale and purchase because a stamp to this effect is missing from the land title but confirms there was a loan from Borneo Housing
4. The name on the title was converted to SSM for the sole purpose of getting a loan but there was no written agreement since all were based on trust.
5. There is a subdivision for Lot 1 and Lot 2.
6. SSM transferred the title to his son in 1984 without the knowledge of the family of Jimain and Ozulu.
7. There is evidence on the land title that it was charged to Hongkong Shanghai Bank for a loan that was paid in 3 years
8. A house in lot 2 which once belong to Malangin for so long was demolished by CSM in July 2013 before this court case was settled. I went to the site to request them not to demolish until the court has heard the case but I was totally ignored.
( end statement by Ketua Kampung)
The plaintiff was then told by the court that if she has witnesses for the next hearing to be held on 10-10-2013, then she must subpoena them through the court admin section.
THIRD HEARING: TESTIMONIES BY 4 PLAINTIFF WITNESSES
First witness: Clare John Bosuin (daugher of Angeline Jimain)
1. Disagreed that the land NT 10893 was sold as stated by the defendant
2. Reason: this customary land was only loan to SSM on Sept 7, 1964
3. The payment of 500 ringgit was only a token for one lot and also used to fill the Memo of Transfer form to change the name in the title to enable SSM to obtain a loan from Borneo Housing.
4. She read out a message from her mother, "Take Lot 1 which is yours and return Lot 2 to us because we are a family"
She explained that her mum have vocal problem testifying herself due to a recent stroke.
Second witness: Beatrice Mojimbang from Kg Ramaya
1. She know very well that the land was not sold but only loan to SSM who needed a loan to build a house
2. Sipain and Jimain are first cousins and Sipain asked for one lot to build a house
3. SSM promised Jimain that he will not cheat him on this land and will return the title after he retires from work when all would be settled.
4. When both Jimain and Ozulu passed away SSM took advantage and transfer the land title to his son.
5. This dispute never arose until Clarence demolished the house where Jimain's son Joseph Jomani is still occupying.
6. The payment of 500 ringgit was just consolation for transferring the name in the title to enable SSM to get a loan from Borneo Housing
7. I heard clearly SSM thanking Jimain for giving him one lot and promised that when he is a retires from work, he will subdivide the land as per their agreement.
8. My husband is Stephen Biusing and he is a very close friend of SSM.
Jimain and SSM would come to our house for social drinking and that is how I overheard all of these facts from them.
Third witness: Celestina Edith Gilong
1. I live in Kg Ramaya Penampang
2. Rented a house on the land NT 10893 belonging to Jimain Malangin for 3 years
3. Because the house is small and I have a large family, Angeline Jimain gave permission to build another house on the other side of the road but still on the same land, with a one token payment of 3000 ringgit.
4. I am related to the Ozulu family
5. My family have stayed at this new house for the last 20 years
6. We were shocked to receive an eviction notice from Clarence saying we are intruders on his land. The first notice was on 6 Sept 2011, second on October 2013 and the third via a letter from lawyers Bulagang & Co on 26 June 2013.
7. We never moved but defended our position. We are still staying there because we have nowhere else to go. We know from the beginning that the land does not belong to CSM but just one lot is his.
Fourth witness: Winne bte Jinungin
1. Malangin and Jinungin are brothers
2. My father is Jinungin, and so Livina Malangin is my auntie
3. Livina has also told me about SSM request for one lot to build a house on this land and that the land was never sold but just one lot was given to SSM.
After the short statement by the last witness, the Native court adjourned the hearing for verdict on 15-Nov 2013.
Summary of Courts Verdict
The judges took into account amongst other that:
1. Family affections and mutual trust played a part in the agreement.
2. The land title was not returned to the original owners but there exist and approved subdivision proposal in 1978 signed by Simon Gonsilou as DO.
3. The proposed subdivision did not materialise because of the encroachment of the house built on another adjacent land
4. After 9 months when no one else claimed the land, SSM took opportunity to transfer the title to his son.
5. There was no further action on the land until eviction notices was issued to the occupants of Lot 2.
6. It was believed that Angeline Jimain is the administrator of Lot 2.
7. Due to the pressure from CSM via his lawyer Bulagang, another lawyer Datuk James Ghani has written a letter requesting this native court to hear the case to decide who really owns this land.
8. Facts from the defendant himself including his father appointing a surveyor to subdivide the land,
9. Defendant's statement that the land was bought for 500 ringgit in 1968 and there was no family affection involved cannot be true because 10 years later there was a proposal for subdivision.
10. A land next door of similar size was sold for 50 thousand ringgit, hence not logical for this land to be sold for a mere 500 ringgit.
11. Witness no. 2 showed that SSM took advantage when the two previous owners died.
12. Witness no 3 paid 3,000 ringgit as token just to be able to stay on the land as compared to the 500 ringgit paid by SSM.
13. The ketua kampung of Ramaya knows about this land but the defendant did not respect his orders not to demolish the house on lot 2 while the case is still pending at the native court
14. Witness no. 1, the land was not returned after the loan was paid but subdivision was proposed. The so-called payment for the land for 500ringgit on 19-5-1968 and witnessed by Monjuil was assumed by the defendant as purchase of the land while 10 years later on 25 sept 1978 the proposed subdivision was submitted. There is a significant contradiction and so the 500ringgit is a mere token for being given Lot 1 from the land.
The sum of 500 ringgit was entered into the MOT so that the land can be returned to the original owners.
15. A fileful of documents submitted by both parties were taken into account of this verdict
The judge also commented amongst other things that:
1. What is borrowed should be returned,
2. Love and affection did play a part in this matter
3. The land could not have been sold for 500 ringgit when the land next door was sold for 50 K ringgit and the token payment by Gilong was 3000 ringgit just to stay on the land.
Hence the verdict of the judges, based on equity, system of natural justice and fair to both parties without biased, have unanimously decided in favour of the Plaintiff and the court orders that in the land NT 10893,
LOT 1 is owned by the defendant
LOT 2 is owned by the plaintiff
in accordance with the approved plan of subdivision 1301/63/143 submitted on 23 sept 1978.
The case should be settled at this level of the court, however if any of the parties is not satisfied with this verdict, can appeal to the District Officer (Mahkamah Anak Negeri Peringkat Daerah) within 60 days.
He advised the defendant to think deeply before submitting his appeal after he asked how to appeal against the verdict.
(After analysing the case and the judges summary of judgement I wonder what the heck is the defendants basis for appeal, except perhaps to use lawyers to find loopholes base on technicality)
UPDATE:
As on 5th Dec 2013, the plaintiff has informed that the defendant had submitted his appeal to the District Office via the admin section of the Native Court.
APPEAL FIRST HEARING on 17 Jun 2013 before DO William Sampil, and two Native Chiefs, Adrian Sikawah and Marcus Johnioh.
According to respondents, the appellant started pointing fingers to Celestina as the problem for carrying out renovation on her house in Lot 2 despite being given a letter of eviction.
Meanwhile, the respondent Matilda had several witnesses with her including the mother of the person who bought the land next door where the house built by Clarence father had encroached into.
No comments:
Post a Comment