AT THE NATIVE COURT - ANOTHER CASE OF LAND DISPUTE AFTER USING LAND TO GET A HOUSING LOAN

 drated:  Wed DEC 9, 2015

PENAMPANG. A man from Kg. Tanaki here, submitted five main reasons for not accepting the results of a mediation held in chamber of a Native Chief on 29 Sept 2015.

 

Testifying as plaintiff, he said the land under dispute was transferred to him by his wife who had inherited it from her mother, who also had inherited it from her own mother (plaintiff’s grandmother in-law).

He admitted that the land is therefore an inherited land or “tanah pusaka” in native terminology.

 

When he constructed their house on the land, his wife had transferred ownership to him in order to get a loan from Suruhanjaya Perumahan Persekutuan Malaysia.

 

He also claimed that his mother in-law was still alive when the land was transferred to his wife in 1991 and together with the Memorandum of Transfer form, a no objection letter signed by all the siblings of his wife was submitted to the land office. However this letter was not witnessed by anybody and one of the siblings who was staying in Kuala Lumpur was not included. The plaintiff claimed she too had confirmed not objecting via telephone only.

When the court ask if he has the original copy of this letter, he answered it was lost when the house got flooded in the past.

 

Hence he claimed that the transfer including the letter of no objection is valid. His wife was willing to transfer the land to him in order to build a house on the basis of “love and affection” as written by the Land Office.

 

As the loan is paid, he intended to transfer back the land to his wife but only after the case in this court is settled. He contended that the defendant has no more right to claim the land as it is now own by his wife and not the mother in-law.

 

He concluded that all the relatives of his wife have no more rights to the land and asked the court for an eviction order to all those who are still staying on the land.

 

However the court told him the case before them is only about why he is objecting to the results of the mediation and not about eviction order.

Responding to a question from the bench whether there is relevance between “eviction” and “love and affection” he responded that he had allowed them to stay at the existing family home on the land but since they are not happy with the current arrangement so love and affection ceased to exist.

 

When told that he got the land via love and affection and but he is returning the favour with “eviction”, he declined to answer.

 

In response, the defendant who is also the sister in-law of the plaintiff said she is laying claim to the family home and a part of the land because it is the inherited property of her mother and she has no other place to stay. She claimed she had looked after her mother until the end and she had proposed and issued a will including her as beneficiary.

 

She claimed her mother agreed the land title can be borrowed for the purpose of her elder sister and husband to build a house and that part of the land will belong to them. She also said her sister had asked her for assistance for their mother’s approval for them to build the new house.

 

In conclusion she maintains every statement she had made during the mediation held on 9 Sept 2015 as still valid and true.

After she finished her testimony, her younger brother sitting at the gallery asked the court for permission to query as his name has been mentioned by the plaintiff as having agreed to the transfer of the land, claiming he has no knowledge of the letter.

 

However, the bench comprising District Chief Bryan Matasing, Native Chief Andrew S. Lidaun and Village Chief Rita John said they will look into this matter in the next hearing on 19 January 2016.

 

 

FROM KK HIGH COURT: PENAMPANG LAND CHEATING CASE MISUSING NAME OF CHIEF JUSTICE

 drafted  Fri OCT 30, 2015

special case from Penampang

KOTA KINABALU. The second defendant in an alleged land cheating case became a witness for the plaintiff in a surprise turn when he was subpoenaed by the counsel for the plaintiff in a continuation hearing on Thursday and Friday.

 

Testifying under caution of Section 132 of the Evidence Act, Edward John Bruno Lojuta @ Tiwot said it was the third defendant Avictus @Ronnie Lojuta who told him Oswald Sipain is the lawyer acting for Tan Sri Richard Malanjum who will be buying the land.

 

Tiwot said it was Ronnie who asked him to bring 3 pieces of blank paper for his uncle Anthony Lojuta to place the thumb prints and then bring them together with the land title to see the lawyer who is now the fourth defendant.

He testified that both Ronnie and Oswald knew that the asking price was RM1.65 million but he does not recognise the first defendant Clarence Sipain. He saw Ronnie submit the land title to the lawyer who then kept it in the drawer.

 

At the lawyer’s office he was asked to sign 3 blank vouchers, given RM50 thousand in cash as commission and told to wait outside the office for ten minutes. “Afterwards Ronnie came out and asked me for a share of the commission and I gave him RM15 thousand. Afterwards we were told to go home,” he testified.

 

When asked by counsel why he trusted all these, Tiwot answered Ronnie told him this was the directive of the Tan Sri. Under cross examination Tiwot said he never cheated the plaintiff whom he regards as his own father, instead both of them got cheated.

 

There were no questions from his own counsel when the first defendant made his defence except to sign his witness statement. Under cross examination Clarence Sipain agreed that there was no proper sales and purchase agreement (S&P) and the Memorandum of Transfer (MOT) does not show that he can pay by instalment nor does it show the balance can be paid after the land title is transferred. He disagreed when suggested that he was unable to pay the balance of the price as shown in MOT of RM500 thousand. He agreed that he had paid RM50 thousand as deposit at the plaintiff’s bank in Donggongon and that he never met the seller. He signed the MOT before his lawyer brother and left all matters including payments for him to handle.

 

The fourth defendant Oswald Sipain only signed his witness statement without any question from his own counsel. Under cross examination he said he is well versed with S&P having been in practice for 17 years. He stated that his brother was keen to buy the land for RM500 thousand and can only afford in six instalments.

When asked to show where in the documents the plaintiff agreed to be paid a part of the sum of RM500 thousand or to be paid RM50 thousand and that the title is to be transferred first before the full payment is made, he answered “it does not show”.

He agreed his counsel never put to Tiwot as the agent of plaintiff that the price is RM500 thousand and not RM1.65 million and the payment by instalment when Tiwot was in the witness stand.

He agreed it is easy to print a transfer or MOT form from a computer.

However he disagreed that the buyer was supposed to be a Tan Sri and denied there was any commission mentioned.

He claimed having paid the plaintiff another RM100 thousand via Tiwot instead of direct to the plaintiff’s bank account but agreed there is no letter of authority for Tiwot to receive this money.

 

When cross examined by the counsel for the State why no S&P was prepared Oswald answered that it was a simple transaction and they wanted it done expeditiously. It would take time to prepare the documents so asked the second defendant to make the transfer to be done at the Penampang PPHT.

He said he did not prepare the MOT form, his brother signed in front of him and the plaintiff’s thumb print was not there when his brother signed. Then the form was brought to the land office by the second defendant.

 

The last witness cum fifth defendant took the stand in the afternoon of the second day.

Ali Hussin bin Taha who was the Land Supervisor at Penampang in 2013 when the MOT was registered testified that the Police had confirmed the fingerprints on three of the documents belong to the plaintiff Anthony Lojuta himself.

Under cross examination he stated it was Ronnie Lojuta who brought in the documents and both plaintiff and first defendant did not appear.

He did not see the thumb print being placed on the MOT forms. He agreed that the correct procedure is for both transferor and transferee to sign the MOT form before him.

He also said he faced many people every day and he knows who was honest and who was not. It was Avictus Lojuta who told him the thumb print belongs to the transferor and all the transaction including the payment of RM50 thousand has been done at the office of the lawyer Oswald.

He agreed it was potentially risky in attesting a signature when the person is not present and may have facilitated others in cheating the plaintiff.

 

Under cross examination by defence counsel for first defendant, Ali concluded that he had done his best to serve the public, his action was done in good faith and just carrying out his duties.

 

The third defendant Avictus Lajuta@Ronnie Lojuta did not register any defence papers nor made any appearance in court.

 

Counsels Marian and brother Dominic Ghani appeared for the plaintiff, Bulagang and Co appeared for Clarence and his brother Oswald Sipain, while Asiah Mohd Yusof from State Attorney appeared for Ali Hussin and the State. Judge Ravinthran Paramaguru will give his judgement tentatively on 4^th December.

 

AT THE NATIVE COURT- ANOTHER WARRANT OF ARREST, 2ND TIME FOR OBOL

 drafted Thu Oct 1, 2015

 

NOTE:  I THINK THIS case is pending and probably forgotten by the court as the chief judge has been changed by politics twice since this case was being heard.....

 

 

PENAMPANG. The Native Court here ordered a warrant of arrest to be issued immediately after the hearing was adjourned against a 48 year old truck driver who refused to appear in court for the third time.

A previous warrant was withdrawn after Obol @ Abel bin Jacob came to the court office when news of his pending arrest was published in Daily Express, pleading that he was sick previously and had promised to attend the next hearing date.

 

District Chief Bryan Matasing speaking from the bench said regardless of what he does this time, the warrant will be sent to Kota Kinabalu OCPD in charge of Inanam. The defendant’s last known address was a private company at Taman Kolombong, Inanam Road.

Matasing added that he will not allow this case to become a bad example where a defendant can simply ignore the Native Court.

 

The case has been pending since 2013 when the truck driver totally abandoned his wife and seven children choosing to live with a Filipina with whom the marital status is unknown.

The Filipina only indentified as Joriah is also the co-defendant who even dared to send selfies of herself and Obol to the plaintiff ( Obol’s wife).

 

According to the plaintiff’s previous testimony, the Filipina even sent her taunting SMS saying “Mana sudah mahkamah tahi kau?” whom she accused of breaking up her family.

 

According to Native Chief Andrew S Lidaun, delays of case management due non-appearance of defendants are causing backlogs and increase the workloads for the court, as well as prolonging the suffering of victims such as the wife and children in this case.

 

 

WARRANT of arrest for failure to appear in court 4 times (Daughter appeared on his behalf at the Native Court)

 drafted: Wed,  Sept 30, 2015

PENAMPANG. The Native Court here gave a 57 year old self-employed man from Kg Timpangoh Babagon 7 more days to explain his non appearance in court today after which a warrant of arrest will be issued for contempt of court.
District Chief Bryan Matasing together with Native Chiefs Andrew S Lidaun and Woritus Paulus made this decision when the man sent a daughter to represent him in court instead.
 
The daughter informed that his father was not well and may be facing an operation in hospital soon.
When asked, the daughter admitted she has no clue what the case was all about.
 
However the court said that the man had been called a total of 4 times before including summons to the judge’s chamber to try and settle the case amicably and he had even signed acknowledgement of receipt of the summons. The court also ordered the man through his daughter to submit medical certificate or letter from the hospital doctor who is supposed to carry out the operation on him to prove the reason for his non attendance in court today.
 
The court also said no other letter will be issued and it would be the daughter’s responsibility to tell her father that if there is no response by the 7^th October, the warrant of arrest will be issued.
 
The case was brought up by the plaintiff from Kg Babagon regarding a small value land deal which had gone sour because the land lot for sale did not exist.
 
After the court was adjourned, Native Chief Lidaun said there is no such thing that another person can appear on behalf of a defendant in court. Even the former Menteri Besar of Selangor Khir Toyo and others holding the titles of “Tun” appeared for themselves in court, he said.

THIS IS AT HIGH COURT KK - special case: LAND CHEATING CASE THAT ABUSED NAME OF CHIEF JUDGE

 drafted  Fri,  Aug 28, 2015 at KK High Court

• KOTA KINABALU. A 91 year old from Kobusak Penampang testified via a Kadazan court interpreter that he trusted his nephew and handed over the original land title to him when told that the buyer was Tan Sri Richard Malanjum, the present Chief Judge of the High Court of Sabah and Sarawak.

  Anthony Lojuta was testifying as plaintiff against Clarence Sipain Mojingol whose name now appeared in his land title as the buyer as well as 5 others including the Lands and Survey Department.

   

  The plaintiff stated he acquired the land from a lady in 2004 when she could not pay a loan of RM135 thousand. Although lowly educated, he is able to sign when the land was transferred to him. In 2013 he thought of selling the land for around RM1.5 million which has an existing concrete house and told his relative and friends and may have reached the ears of land brokers but did not advertise in news.

   

  He also informed his nephew Edward John Bruno Lojuta @ Tiwot. In Aug 2013 Tiwot came telling him a Tan Sri wants to buy the land and ask for the land title to show the buyer.

  Plaintiff instructed Tiwot not to give the title to any buyer unless able to pay the full price. At about midday in Aug 2013 Tiwot came to his house with a blank white paper with nothing written on it to get the thumb print of the plaintiff for the purpose of processing payment into his account.

   

  Tiwot only requested for the thumbprint once. He never signed or placed his thumb print on any other documents. He trusted Tiwot after being told that the Tan Sri whom he knows well was the potential buyer.

   

  Upon request by Tiwot, he gave his account number of a bank at Donggongon. The same day Tiwot took the land title with instructions not to sell below RM1.5 million and not to give the title to anyone before the full payment is made.

  Afterwards Tiwot informed that money has been placed in his account on 23 Aug 2013 at his Donggongon account. Plaintiff went to check his account to find that only RM50 thousand has been deposited. When he called Tiwot he was told that the buyer will pay by instalment. When he called again to ask for the return of the land title and that he wanted to return the money because he disagreed with the payment by installment, Tiwot now refused to answer his calls.

   

  He then felt that he was cheated and went to the Native Court Penampang to report. There he met an Assistant Native Chief William who help him checked the status of the land.

  The Land Office informed that the land title have already been transferred to Clarence Sipain Mojingol.

  The plaintiff then realised he was really cheated because he only got 50 thousand and the buyer was a total stranger to him.

   

  He made a police report on 24 Aug 2013 requesting that those responsible be punished. He also applied for a caveat on the land on 25 Sept 2013 because there was no agreement to sell the land to Clarence Sipain.

   

  He also managed to get a copy of the memorandum of transfer of the land which stated that the selling price was half a million, but he never got paid that amount. He again confirmed that he never signed or thumb printed any memorandum of transfer documents. He believed someone was able to abuse his thumb print. He was totally shocked because he never recognised who is Clarence Sipain and never agreed to sell the land to him.

  He did not recognise the person attesting the transfer document and never met him at all.

   

  He is in court because he is cheated by Bruno Lojuta@ Tiwot, Clarence Sipain and his lawyer. He never agreed to the price, neither did he put his thumb print on any document nor did he receive the half million as stated in the documents.

  He believed that his thumb print on a blank sheet of paper was used to cheat him.

  He is able to return the 50 thousand and pleaded the court for the return of his land.

   

  He is aware the police are still investigating the case against the first to fourth defendants, and his lawyers have written to the State Attorney in 2015 and their reply is that they are still investigating.

   

  The plaintiff sums up asking the court to declare the transfer of the land to Clarence Sipain as void and to order the Land Office and the ACLR to transfer the land back to him.

  He pleaded for compensation for all losses incurred due to this cheating case including legal cost.

  The case has put a strain on his health as an old man because all he could think of was being cheated of his land.

   

  During cross examination, when asked by counsel why he did not make a police report against John Bruno, plaintiff replied that he was his nephew and had treated him as his own.

  He disagreed strongly with the question that it was not wrong for Clarence Sipain to pay for the land by instalment if agreed by his nephew repeating his earlier testimony that only a full payment was what he wanted.

   

  The case was heard before Judge Ravinthran Paramaguru, James Ghani & Co appeared for plaintiff while Bulagang and Co for defendants one and four while a lawyer from the State Attorney appeared for the government of Sabah. The rest of the defendants were not named in the hearing which was adjourned to a tentative date in October.

   

  This is a second case for the first defendant, heard in the same courthouse block after losing in a separate land case at the Native Court of Appeal earlier on August 6^th.

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NATIVE COURT CASE AT MENGGATAL - LAND DISPUTE

 DRAFTED:  WED 19 AUG 2015

KOTA KINABALU. The Native Court here rejected a charge of encroachment into his land by a farmer against his neighbour at a village in Menggatal. The panel of judges presided by District Chief William Majimbon , Native Chiefs Biniau Mabin @Rocky and Lunsin Anjah said the land in question still have no title and hence is a government land.

 

The plaintiff is claiming the land based on his application for a CL title while the defendant and his late father had cultivated the land based on LA or Land Application receipts.

 

The court ordered both parties to pay court cost of RM100 each. Since both have interest on the land the court opined that the ownership issues should be settled by the Lands and Survey Department. The defendant was advised to submit his application based on the Native Customary Rights of the Land Ordinance and it would be up to the Land Utilisation Committee (LUC) with feedbacks from the village chief.

 

The unanimous decision was made at a native courtroom within the Menggatal Community Centre.

 

According to the facts of the case, the plaintiff claimed that he had planted rubber trees which were chopped down by the defendant. He had applied for a CL title and already surveyed by a private land surveyor whose office is at Penampang. However the application cannot proceed as the defendant had disputed the ownership. The plaintiff admitted that the defendants father had given money for funeral expenses in exchange of the LA receipts but later signed a statutory declaration SD that he has no objection on the plaintiff’s land application.

 

The court queried why the plaintiff have to bring the defendant’s father all the way from Menggatal to Kota Kinabalu in April 1990 to see a magistrate at the town council without first consulting their own village chief to prepare this SD.

The same issue was also rebutted by the defendant who said his father could not read or write and signed with his thumb print. Anything he signed should have been witnessed by a family member.

 

The defendant said base on the LA that was given by his father, he had continue to cultivate the vacant land all these while and the plaintiff has only planted a few rubber trees all of which are still there proving he had lied when he accused him of cutting them down.

 

The defendant also produced four witnesses including a former village chief. All made statements saying they do not know about the land dispute but had known that both the defendant and his father have been cultivating the land all their lives and naming the crops that were planted including padi, rubber and fruit trees.

 

The court also informed any party who is not satisfied with the decision can appeal to the District Native Court within 60 days.

KOTA KINABALU. case from Penampang : Azulu Vs Mojingol land dispute

 DRAFT:  FRI  7 AUG 2015

KOTA KINABALU. A 53 year old Kadazan from Penampang lost his final appeal at the Native Court of Appeal at Kota Kinabalu on Thursday before presiding judge Datuk Douglas Primus Sikayun, Native Chief Woritus Paulus (Penampang) and District Chief William Majimbun (Kota Kinabalu).

 

Clarence Sipain @ Clarence Mojingol was appealing against the decisions of both the Penampang Native Court and the District Native Court of Appeal, that declared the 0.76 acre of land at Kg Nambazan belongs to Sipain and a relative Villette @ Mathilda Azulu.

 

During a hearing on 9 July the appellant applied for postponement while seeking a lawyer as the reason, however the judge advised him two focus only on two issues for his appeal to succeed.

 

In the final hearing, the appellant contended that the first witness village head of Kg Ramayah was not appointed yet as the head when the transfer of the land title was done in 1964 therefore his testimony cannot be relied. Also cited was a conflict of interest as the father of the appellant had married the sister of the village chief as his second wife. To this the learned judge retorted, “What’s wrong with marrying two?”.

 

The second issue was on the proposed subdivision of the land where Lot 1 was supposed to given to Sipain while Lot 2 was supposed to be returned to the family of Azulu. The appellant contended that the proposal does not prove the land belongs to the Azulu family because it is subjected to survey and whether the parties wish to continue with the subdivision. Another adjacent land was implicated into the matter by the appellant whereas records from the Native Court has deemed it as irrelevant. As the subdivision was not completed it was implied the land now totally belongs to the appellant.

 

The counsel of the appellant also submitted that the high court had decided in favour of the appellant in an eviction order for two people currently occupying lot two of the same land,  reversing another earlier verdict by a session court. To this the judge asked if the ruling was correct in view of the decision of the Native Court. When the counsel was unsure, the judge said if there is an earlier ruling by the Native Court that a land belongs to so and so, the civil or high court has no business challenging that decision.

 

When the respondent stood up ready to present the rebuttal, the court told her it was not necessary and proceeded to announce their unanimous verdict rejecting the appeal.

 

Counsel Wendy Lee appeared for the appellant while the respondent Azulu chose to represent herself.

 

The appellant now faces the consequences since he had sold the land on 5 September 2014 before the decision of the District Court of Appeal on 20 October 2014 without the knowledge of co-owner. After Azulu had made a police report in November 2014,  Sipain had appeared before a magistrate court in January this year charged with selling the land without permission of co-owner where a Chinese buyer had already paid RM240,000 as advance payment. He is currently on bail of RM4000 while waiting for the ownership issue to be finally settled in the Native Court of Appeal.

 

Photo:  Villette @ Mathila, cousin Angeline (3^rd left) and two aunties outside the court after the verdict.