The Rule of Law versus The Rule by Law
Malaysia won the attention in the world when in the 14th General Election of the country, referred to as GE14 on 9 May 2018, democratically removed the ruling party of the government, "Barisan Nasional BN" for the past 61 years since Independence from the British on 31 Aug 1957. Outright corruption at all levels was the end result discovered by the citizens of the country but little could be done as instead of being able to apply the Rule of Law, the people faced the Rule of Law, where the ruling party used the law unfairly to cover-up corruption. Existing Acts of law like the Whistle-Blowers act was not adequate to protect the innocent who exposed corruption by the government such as a candidate of the then opposition party Rafizi Ramli that I had a chance to interview prior to the GE14.
Prior to GE14, getting support from government agencies or departments was not easy. In the case of Blue Boy Mansion, the developer trying to play tough with owners to withhold their strata titles and forcing them to sign a new lease as if they were leasing the property only. They were actually owners of their property unit through a prior sales and purchase agreement signed in the beginning when there was no Strata Titles law in the country yet! Through TAT Tai Aik Tong sdn bhd, using the renowned lawyers Azman Davidson & Co and two other law firms, they brought the Developer Embassy sdn bhd to court, who was defended by Manjit Singh Sachdew, Mohammad Radzi & Partners. TAT won:
TAT Tai Aik Tong sdn bhd, owner of the ground flr and 1st flr property at Blue Boy Mansion sued the developer Embassy sdn bhd who tried to claim that the company is only a lessee and not owner to try to force the company to sign a new lease agreement! TAT refused and sued Embassy sdn bhd and won. With the outcome of the court case in favor of TAT, all other owners could receive their titles without being forced to sign off their rights by signing a new lease agreement.
The full court judgment against Embassy sdn bhd losing to TAT can be read by clicking here.
There was evidence submitted to the court that the lawyers acting for the developer. Manjit Singh Sachdev, Mohammad Radzi & Partners, had unethically approached the innocent owners to be persuaded to sign a new lease agreement which was not necessary. Click here to view those documents and the names of owners approached by the developer's lawyers, who can stand as witnesses to the unprofessional action of Manjit Singh Sachdev, Mohammad Radzi & Partners who should not have approached the innocent owners of units in Blue Boy Mansion who were being taken advantaged of by the developer! It is unethical for a lawyer representing a developer to approach owners to sign an agreement done by the same law firm of the developer instead of consulting their own lawyer!
TAT refused to sign the new lease agreement and Embassy sdn bhd would not release the Strata Title to TAT which was the reason why Embassy sdn bhd was sued. TAT won even after appeals by Embassy sdn bhd to higher courts who held the first judgment that it was unnecessary for Embassy sdn bhd to have forced owners to sign a new lease agreement to save their ownership rights.
As TAT had won over Embassy sdn bhd in the legal suit against the developer, TAT was given their Strata Title and as a precedent had been set from the case judgment that renewal of lease is not necessary, all other owners would receive their strata title without the necessity of renewing their lease.
Here are some details of the final judgment where TAT was the plaintiff and Embassy sdn bhd the developer was the defendant:
Read this particular statement by the judge in the High Court of Appeals on what was presented by the lawyers of Embassy sdn bhd, M/s Manjit Singh Sachdev, Mohammad Radzi & Partners with their application of the law that follows:
"I find the above argument to be not only entirely self-serving but also simply fallacious."
Now, I move on to the final issue of whether the Plaintiff has a lawful right to occupy the properties as the leases have expired. The Defendant’s counsel submits that since the leases have expired on 28.2.2002, the Plaintiff is in unlawful occupation of the properties and that the Plaintiff has no legal interest or proprietary rights in the properties. The Defendant 's counsel further submits that
since the Defendant is presently the registered owner of the strata titles to the properties, and all legal proprietary rights and title to the properties vests with the Defendant; the titles are indefeasible pursuant to s. 340 of the National Land Code 1965.
In support of that contention, the Defendant relies on the dicta of the Federal Court in
Teh Bee v. K Maruthamuthu [1977] 2 MLJ 7. I find the above argument to be not only entirely
self-serving but also simply fallacious. If the Defendant 's counsel's argument is accepted, then it would mean that, the registered proprietor of land can simply disregard his contractual obligation to transfer and give good title to a purchaser of that land by virtue of the doctrine of
indefeasibility as provided in s. 340 of the National Land Code 1965. As I have stated earlier, the Plaintiff's right to occupy the properties stems from the Principal Agreements, which are in effect agreements for the sale of the Defendant's freehold interest in the properties.
Therefore, the fact that the lease, which is an interim stopgap measure, has expired by effluxion of time will not diminish, nullify nor negate the beneficial interest of the Plaintiff in the properties. The Defendant has a contractual obligation to transfer ownership of the properties to the Plaintiff and the Plaintiff has a valid claim for a decree of specific performance of that obligation.
In this regard, I agree with submissions of counsel for the Plaintiff that s. 340 of the National Land Code 1965 does not operate to shut out parties who have valid contractual claims to title against a registered proprietor. The Plaintiff 's beneficial interest in the properties would allow the Plaintiff to continue occupying the properties notwithstanding the expiry of the lease.
More problems from Embassy sdn bhd and their lawyer M/s Manjit Singh Sachdev, Mohammad Radzi & Partners to follow the rule of the law under the Strata Titles Act:
The following is an account of the failure of the government department or Commissioner of Buildings in following the rule of law under the latest Strata Management Act caused by the developer seeking to delay holding the 1st AGM of the Management Corporation using their same lawyers again!
The new Strata title laws will empower owners to manage the building but they need to be educated on how to do it and part of the transformation exercise is to assist them with knowledge and experience. This will be a model for many other buildings/owners that face similar problems.
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