CONFIDENTIAL FACULTY OF LAW/ AUG2022/ LAW554

UNIVERSITI TEKNOLOGI MARA

FINAL ASSESSMENT

COURSE NAME : LAND LAW II

COURSE CODE : LAW554
ASSESSMENT : 10 AUGUST 2022 (9:00am)
RELEASE DATE :
ASSESSMENT : 10 AUGUST 2022 (3:00pm)
LAST SUBMISSION
DATE

NAME NURUL HIDAYAH BINTI HAMZAH

MATRIC NUMBER 2020471264

GROUP LWB04B

LECTURER MADAM ISMAH BINTI ISMAIL

MARKS:

Question 1(a)
Question 1(b)
Question 2(a)
Question 2(b)

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CONFIDENTIAL FACULTY OF LAW/AUG2022/LAW554
Name: NURUL HIDAYAH BINTI HAMZAH

UiTM’s Academic Integrity Pledge

By signing this form, I agree to act in a manner that is consistent with UiTM’s academic assessment
and evaluation policy and processes. I will practice integrity in regard to all academic assessments, and
pursue scholarly activities in UiTM in an open, honest, and responsible manner. I will not engage or
tolerate acts of academic dishonesty, academic misconduct, or academic fraud that include but are
not limited to:

a. Cheating: Using or attempts to use any unauthorized device, assistance, sources, practice or
materials while completing academic assessments. This include but are not limited to copying
from another, allowing another to copy, unauthorized collaboration on an assignment or open
book tests, or engaging in other behavior that a reasonable person would consider to be
cheating.
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without acknowledging the source; using or purchasing materials prepared by another person
or agency or engaging in other behavior that a reasonable person would consider plagiarism.
c. Fabrication: Falsifying data, information, or citations in any formal academic assessment and
evaluation.
d. Deception: Providing false information to an instructor concerning a formal academic
assessment and evaluation.
e. Furnishing false information: Providing false information or false representations to any UiTM
official, instructor, or office.

As a student of UiTM, I am expected to conduct myself in a manner that exemplifies honesty and
integrity. If for any reason, I am found to be violating the policies set out by UiTM, I understand that
disciplinary action can be taken against me.

Nurul Hidayah
__________________________

Name: NURUL HIDAYAH BINTI HAMZAH

Matric Number: 2020471264
Programme Code: LW224

Faculty / Campus : UITM SHAH ALAM

*Students are required to sign one pledge for each course taken.

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CONFIDENTIAL FACULTY OF LAW/AUG2022/LAW554
Name: NURUL HIDAYAH BINTI HAMZAH

QUESTION 1(a)

The issue is whether the Registrar had acted correctly when rejecting the registration of Tan
Sri William Tan’s private caveat?

A caveat is a type restraint on dealings which is very commonly resorted to in the Malaysia
conveyancing practice as a mechanism to restrain dealings and is regulated by the provisions
in Part Nineteen of the NLC Land Code 1965. In Damodaran v Vasudeva (1974) 1 MLJ 128,
it was held that a caveat protects a claim to an existing unregistered but registrable title or
interest in land until conflicting claims to the title or an interest in land that is the subject matter
of dispute is resolved. Macon Engineers Sdn Bhd v Goh Hooi Yin (1976) 2 MLJ 53, a caveat
is a creature of statute in the nature of a statutory injunction which has the effect of prohibiting
the registration of any instrument of dealing executed by or on behalf of the proprietor.

A registrars caveat also referred to as an official caveat and can be entered or lodged by the
Registrar on the application by persons who are specified in Section 320 of the NLC. The
Registrar has discretion to enter his caveat on the application made to him. Registrars caveat
is entered to protect and inhibit dealings with the land and the entry or lodgement of the caveat
does not create or enhance any existing claim to title or interest or give rise to any claim to
title or interest.

A registrars caveat soon as it is entered on the land, it will have the effect of preventing the
creation of dealings such as the registration of all dealings including transfer, charge, lease,
sub-lease, easement on the disputed land by anyone including the registered proprietor, claim
for tenancy exempt from registration on the disputed land and entry of Lien-Holders caveat on
the disputed land. Nevertheless, it is important to note that the registrars’ caveat will not
prevent the entry of private or trusts caveats or prohibitory order, this is per Section 319(2) of
the NLC.

Moving on, a private caveat is a personal caveat entered by the Registrar upon application by
a person seeking to protect a claim to an existing unregistered interest in the land pending the
finalisation of registration or settlement of a dispute in court in respect of the land sought to be
protected by caveat. The function of the Registrar in entering a private caveat is purely
administrative and therefore the Registrar is obliged to enter the caveat on the register
document of title to the disputed land upon receiving the application. The Registrar then much
check if the statutory form 19B has been completed, executed and attested, statutory
declaration or cavatable interest have been made by the caveator and the prescribed fees

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CONFIDENTIAL FACULTY OF LAW/AUG2022/LAW554
Name: NURUL HIDAYAH BINTI HAMZAH

have been made to the Land Office. If all the requirements are complied, the Registrar has no
discretion to refuse to enter a private caveat. In Ong Chat Pang v Valiappa Chettiar (1971)
1 MLJ 224, it was decided that as long as the formalities in preparing the caveat form is
complied with, the Registrar has not power to reject the caveat and therefore the Registrar
had made a mistake in rejecting the caveat lodged by the caveator.

In applying the laws to the present situation, following the facts of the case as Tan Sri William
was feeling insecure over Dato’ Dawood character, Tan Sri William called upon his lawyers
and asked them to enter a private caveat on the PJ land however the Registrar had refused
to enter the caveat on the ground that a Registrar's caveat had been entered on the PJ land
on 28 February 2022 by the Registrar on behalf of the Inland Revenue Department. In the
effects of Registrar caveat as provided in Section 319(2), a registrar caveat will not prevent
the entry of a private caveat hence the Registrar in receiving the application for private caveat
by Tan Sri William may not refused the registration due to the fact the PJ land has been
entered a Registrar caveat.

Therefore, assuming that Tan Sri William Tan in registering the private caveat had fulfilled all
the requirement such as the statutory form 19B has been completed, executed and attested,
statutory declaration or cavatable interest have been made and the prescribed fees have been
made to the Land Office, the Registrar then have no power to reject the registration of Tan Sri
William Tan’s private caveat.

To conclude, the Registrar had incorrectly rejected the registration of Tan Sri William Tan’s
private caveat.

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CONFIDENTIAL FACULTY OF LAW/AUG2022/LAW554
Name: NURUL HIDAYAH BINTI HAMZAH

QUESTION 1(b)
The issue is whether Tan Sri William Tan can claim indefensibility of title over the PJ land if it
is challenged?

The Privy Council decision from New Zealand of Frazer v Walker (1967) AC 567, provided
that indefeasibility of title entrenches the title of a registered proprietor to his land, making it
immune from attack from the whole world. In other words, once registered, the title becomes
state guaranteed and cannot be challenged or defeated. In Muthammah A/P Govindan v
Masri Bin Mohamed & Anor (2000) 5 MLJ 518, stated that indefeasible of title or interest
means it is free from all adverse claims. Provided in Section 340(1) of the NLC, upon
registration, the title or interest shall be indefeasible that is guaranteed, cannot be challenged
and immune from attack by adverse claim.

Moving on, looking into deferred indefeasibility, where upon registration, the title of the
registered owner remains potentially open to attack as the title will only be indefeasible “for
the time being. Thus, under deferred indefeasibility, rregistration does not cure any
imperfection in the instrument. If the title or interest is obtained through a forgery, or a void or
insufficient instrument, it will still be open to attack. Thus, under this principal fraud is not the
only ground on which the title or interest can be challenged. In Subramaniam v Sandrakasan,
the title of a registered proprietor is indefeasible and good against the whole world. But it is
not indefeasible in cases where it has been obtained by fraud, forgery, by means of an
insufficient or void instrument, or by the exercise of a power purportedly conferred by written
law. If a title is acquired by any of these means, then the title of the acquirer is liable to be set
aside. Where, the parties to deferred indefeasibility are the transferor, forger, the immediate
transferee and the subsequent purchaser. Whereby the forger and immediate transferee can
be the same person, the immediate transferee obtains a defeasible title, despite the fact that
the land was transferred to him in good faith and for value and for the subsequent purchaser,
provided that he purchases in good faith and for value, acquires an indefeasible title as he
obtains statutory protection under the proviso to Section 340(3).

Section 340(2) provides several exceptions to indefeasibility of title such as in any case of
fraud or misrepresentation to which the person or body, or any agent of the person or bod was
a party or privy, where the registration was obtained by forgery or by an insufficient or void
instrument; and where the title or interest was unlawfully acquired through purported exercise
of any power or authority conferred by law. Section 340(3) then provides that if the title or
interest is defeasible, the title may be set aside to whomever it may subsequently be
transferred, any interest may be set aside in the hands of any person in whom it is vested.
This is however provided that the title and interest was not acquired by a person in good faith

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CONFIDENTIAL FACULTY OF LAW/AUG2022/LAW554
Name: NURUL HIDAYAH BINTI HAMZAH

and for valuable consideration that is a bona fide purchaser for value. According to Section
5, a purchaser is a person or body who in good faith and for valuable consideration acquires
title to, or any interest in land.

It is important to note that Section 340(3) does not apply until and unless a registered title or
interest is found to be defeasible under Section 340(2) and even after the title or interest is
found to be defeasible, Sec. 340(3) will only apply to a purchaser who subsequently buys from
the registered proprietor. Only a subsequent purchaser can claim and provide proof that he is
a bona fide purchaser for value without notice. In the case of Tan Yin Hong v Tan Sian San
& Anor (2010) CLJ (SE) 1, it is immaterial whether or not an immediate purchaser is a bona
fide purchaser for value, as the proviso to Section 340(3) only applies to subsequent
purchasers. As the bank in this case was an immediate holder of the charges, and not a
subsequent holder, regardless of whether the bank was a bona fide purchaser for value, the
title to the property must be reverted back to the appellant. Nevertheless, under the proviso to
Section 340(3), a subsequent purchaser cannot automatically claim to be a bona fide
purchaser for value without notice and protect his title as being indefeasible. In which the
burden is upon him to prove on the balance of probabilities that he is a bona fide purchaser
for value without notice.

Therefore, a bona fide purchaser for value must pay valuable consideration and act in good
faith. In which in terms of paying valuable consideration means it cannot be merely be
consideration for natural love and affection or nominal consideration but must be valuable or
real. In the case of Chu Choon Moi v Ngan Siew Tin (1986) 1 MLJ 34, where the
respondent’s husband fraudulently transferred the property of his deceased father to the
respondent, his wife, without any consideration, the respondent could not be termed a bona
fide purchaser in
good faith and for valuable consideration. Other than that, the party invoking the proviso must
prove that he is a purchaser and not a volunteer, in which a transfer of title or interest is made
without consideration, the transferee is treated as a volunteer. As illustrated in Mohamed
Moidu v Hassan Kadir (2001), payment had been made, but there was no registration of
transfer until the defendants’ father passed away, the defendants were volunteers by reason
of the registration of the title into their names through a transfer. They were not and could not
be termed as bona fide purchasers for value for the reason that no consideration arose from
the transfer.

Moving on the purchaser also must have acted in good faith where the purchaser must not
have any knowledge, be it actual or constructive, that the title or interest is bad in law. In the
case of Liew Yok Yin v AGS Harta Sdn Bhd (2006) 3 CLJ 787, it was held that the defendant

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Name: NURUL HIDAYAH BINTI HAMZAH

failed to discharge the burden that they are purchasers in goof faith due to the fact that any
proper investigation was failed to be conducted into the title or the person claiming to be
owners of the property.

To address the issue at hand, we will be looking into deferred indefeasibility, where in the case
we can identify that Budi is the registered owner is the transferor, the immediate transferee or
the forgery is Dato’ Dawood and the subsequent purchaser is Tan Sri William. In order for Tan
Sri William Tan to have indefeasibility of title, he must then prove that he is a bona fide
purchaser, according to the case of Chu Choon Moi and Liew Yok Yin, following the facts of
the case, since Tan Tan Sri Willian Tan has been informed of the agreement between Dato’
Dawood and Budi but unfortunately Tan Sri Willian Tan chose to ignore the information.
Therefore, he cannot be considered a bona fide purchaser and will not be cannot be protected
under Section 340(3).

To conclude, Tan Sri William Tan may not claim indefeasibility of title over the PJ land if it is
challenged.

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CONFIDENTIAL FACULTY OF LAW/AUG2022/LAW554
Name: NURUL HIDAYAH BINTI HAMZAH

QUESTION 2(a)
The issue is whether Ah Wong is entitled to deny Kani’s right to use the path?

An easement is a right given to the owner of a piece of land known as the dominant land over
land owned by another who is the servient land. In Cheshire, Modern Law of Real Property
defined easement as a right attached to one particular piece of land which allows the owner
of that land either to use the land of another person in a particular manner, as by walking over
or depositing rubbish on it, or restricts its use by that person to a particular extend but which
does not allow him to take any part of its natural product or its soil.

Easement is governed by section 282(1) of the National Land Code (hereinafter NLC), the
right can be to use the servient land or to prevent the owner of the servient land from using
his land in some ways. In other words, a positive easement gives the right to do something on
the servient land and a negative easement prohibits the owner of the servient land from doing
certain acts on his property.

There are four essential features for the creation of an easement as provided in the case of
Re Ellenborough Park (1995) 3 All ER 667, which the features is adopted by the Malaysian
courts, in the case of Tan Kam Cheong v Stephen Leong Ken Sang & Anor (1981) 1 MLJ
36, which affirmed that the four features must be fulfilled before they can determine the
existence of easement. The first feature is there must be a dominant and servient land. In
which the domain land and the servient land should be sufficiently close to each other for
domain land to gain benefit granted by servient land. Next, the dominant and the servient land
owners must be of different persons. An owner of the adjoining pieces of land cannot create
an easement over one piece for the benefit of the other land as it belongs to the same owner.
Furthermore, a right granted must be able to benefit the dominant land owner. The
requirement that the right granted must benefit the dominant land can be illustrated in
Clapham v Edwards (1938) 2 All ER 507, where in the case it was not considered an
easement since the wall on the building owned by the servient land owner was for general
advertising purpose and not in connection with a business carried on the dominant land. And
lastly, the right granted must be capable of forming a subject matter of grant for instance the
right must be sufficiently definite. And there must be a competent grantor and grantee as
following Section 282 NLC, easement is only between two registered proprietors excluding
tenants, lessee, holder of TOL or chargee in possession.

Moving on, a statutory easement must be created through an express grant and by registration
of easement under Section 286(1). Section 284(1) clearly states that no right in the nature
of an easement shall be capable of being acquired by prescription that us by any presumption

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Name: NURUL HIDAYAH BINTI HAMZAH

of grant from long and uninterrupted user. This can be seen in the landmark case of Datin Siti
Hajar v Murugasu (1970) 2 MLJ 153, where it was held that even though the plaintiff never
objected to the metal road constructed by the defendant, it is not considered easement, as an
easement could only be granted by an express grant as provided by Section 286, such grant
can only be made with the agreement of the proprietor of the servient land effected by way of
executing an instrument in Form 17A.

Therefore, an easement then must be registered and executed using specific instruments and
registered according to the prescribed procedures provided in the NLC. Section 286 provides
that the grant of easement shall be affected by an instrument in Form 17A or in the case of
the cross-easements of support by an instrument in Form 17B. As per the case of Tan Wee
Choon v Ong Peck & Anor (1986) 1 MLJ 322, where the plaintiff had bought a piece of land
over which was a path used by the defendant as access to their land. The plaintiff then fenced
the land but the fence was removed by the defendant. The plaintiff then sought a declaration
that he was entitled to exclusive possession of the land, and an injunction restraining from
defendant from trespassing on the land. It was then decided that it was not an easement since
it had not been registered.

Next, Section 286(5) of the NLC provides that the statutory easement shall bind the
successor-in-title. Whereby it preserves the right of the dominant land against the servient
land, even when the land is no longer held by the original dominant land owner and servient
land owner through out the agreed period. Easement shall also be enjoyed by the lessee,
tenant or charge in possession of the dominant land owner as permitted of the easement, this
is per Section 287 of the NLC.

By applying the laws to present case, looking into the four features for the creation of an
easement as provided in the case of Re Ellenborough, for the first feature, it is fulfilled as
Hamid’s land is considered to be the dominant land and Ah Wong’s land is the servient land.
Next, the since Hamid and Ah Wong are two different people, the second feature is also
fulfilled. Furthermore, as provided in Clapham v Edwards, since Hamid had been using the
path across Ah Wong’s property in order to go to the main road, it has benefitted the dominant
land owner. And lastly, the right granted was not be capable of forming a subject matter of
grant as the fact that Hamid’s late mother had paid a sum of money to Ah Wong’s father
indicates that it is sufficiently indefinite the subject matter.

Moving on to the creation of a statutory easement, following the case of Datin Sri Hajar v
Murugasau,, even though Ah Wong had never rejected Hamid for crossing across Ah Wong’s
property for 20 years, it is cannot be considered as an easement as it must only be granted

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CONFIDENTIAL FACULTY OF LAW/AUG2022/LAW554
Name: NURUL HIDAYAH BINTI HAMZAH

by an express grant provided by Section 286. Following that, Section 284(1), also prohibits
that Hamid to presume that there is an easement as he acts was not objected by Ah Wong.

Furthermore, as per Section 286, an easement must also be registered by instrument of 17A
and following the case of Tan Wee Choon, since there was no instrument was registered for
the creation of an easement, it cannot be considered that an easement exist since there was
no registration. To add on, following the Section 285(5), since there was no registration of
easement by Hamid’s late mother and Ah Wong’s father who may be the original owners,
Hamid may not be entitled to an easement. Hence, according to Section 287, Kani who is a
lessee in possession of the dominant land may not enjoy the easement as it has not been put
in an express grant nor it had been registered.

To conclude, Ah Wong is entitled to deny Kani’s right to use the path as the two conditions for
a statutory easement is not fulfilled.

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CONFIDENTIAL FACULTY OF LAW/AUG2022/LAW554
Name: NURUL HIDAYAH BINTI HAMZAH

QUESTION 2(b)
The issue is whether Kani can apply to the Land Administrator for right of way over the
adjacent land belonging to the Royal Malaysian Army?

The Land Administration Right of Way (hereinafter LAROW) is provided in Section 388 of the
NLC where LAROW is a right of way granted by the Land Administrator to pass and re-pass
any alienated land to the public terminal, in which LAROW is granted when the land is locked
from having access to public terminal such as foreshore, a river, railway station or public road.
The Land Administrator may create LAROW either with or without the consent from the land
owners but only on application by the State Authority, proprietor or occupier of any alienated
land.

There are two types of LAROW which are private right of way and public right of way. For the
purpose of addressing the issue, we will only be focusing on the private right of way. In terms
of private right of way, according to Section 389(1), LAROW is created for the benefit of the
State Authority, proprietor or occupier of any alienated land. Whereby a private right of way
for proprietor or occupier of alienated land will provide them access to and from public terminal
as provided in Section 389(3).

Moving on, to the creation of LAROW and its procedures. For the creation of a private right of
way, the State Authority, proprietor or occupier may apply to the Land Administrator in Form
28A, this per Section 390(1). Furthermore, as according to Section 390(2), when the land
administrator receives the application, he shall hold an enquiry or make an investigation as he
thinks appropriate. This can be illustrated in the case of Thankam De Silva v Pentadbir
Tanah Daerah Larut Matang Taiping (1995) 4 CLJ 584, where the Land Administrator may
exercise his discretion, in deciding whether or not to hold an enquiry and if he has sufficient
facts, he may make a decision without holding an enquiry.

Following that, an enquiry or an investigation may be made by the Land Administrator upon
receiving the application in order to determine whether the creation of private right of way is
expedient. As according to Section 390(3), the Land Administrator shall make an order if he
is satisfied that it would be expedient to create a private or public right of way. ‘Expedient’ as
provided in the case of Si Rusa Inn Sdn Bhd & Ors v Collector of Land Revenue, Port
Dickson & Ors (1987) 1 MLJ 147, means more than mere convenience, and it must be a
necessity. Where in the same case the purpose for the grantee's application was one of
pleasure as he wanted a shorter route to the sea for swimming and allied activities for the
guests. There was an alternative route to the seashore via the public road available, but the
distance to be covered would be between 1 and 2 km instead of the comparatively short route
through the appellant's land. It was then held that in order to create a private right of way, it is

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Name: NURUL HIDAYAH BINTI HAMZAH

important to prove that is its urgent necessity and not for mere pleasure and there must be
something more than just mere inconvenience or convenience. In this case there were no
exceptional circumstances which could have made it expedient to make an order for LAROW.
Following that, the grant of a right of way, when another one already exists, even though it is
less convenient, discretion is exercise wrongfully, as provided in the case of Liow Tow Thong
v Pentadbir Tanah Alor Gajah (1998) 1 MLJ 79.

By applying the laws to the present case, since Kani wishes to apply to the Land Administrator
for the right of way over the adjacent land belonging to the Royal Malaysian Army since by
cutting through the land it will shorten his distance to the main road by 1000 indicates that the
LAROW will then benefit him as the proprietor which then provides for the private right way.

In applying for LAROW, according to Section 390(2), the LA may first hold an enquiry or make
an investigation as he thinks appropriate in order to determine whether it is expedient to grant
LAROW for Kani. Following the case of Si Rusa Inn Sdn Bhd, it can be said that Kani’s
application for right of way over the adjacent land belonging to the Royal Malaysian Army
which may provide him a shorter route to the main road is merely for pleasure and mere
convenience. And from the facts of the case, there are no exceptional circumstances which
could have made it expedient to make an application for LAROW. Following that, in the case
of Liow Tow Thong v Pentadbir Tanah Alor Gajah, since the there was already a road from
the leased land to the main road, even though it is less convenient which the distance was
about 2000 meters, granting a right of way would not be possible.

To conclude, Kani may not granted right of way over the adjacent land belonging to the Royal
Malaysian Army as it not expedient to create LAROW for private right of way.

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