TEE SEONG BOON v TAN CHOON NAN

Case Significance

Confirms that an application to remove a private caveat under section 327(1) of the National Land Code cannot be adjudicated where necessary parties such as the registered owners are absent, and that converting an originating summons to a writ is not a substitute for joining the proper parties.

This High Court decision at Kuala Lumpur concerns an application to remove a private caveat, and the limits of converting an originating summons into a writ where necessary parties are absent. The plaintiff applied by originating summons under section 327(1) of the National Land Code to remove a private caveat that the defendant had lodged over land held under a grant at Mukim Kuala Lumpur. Section 327(1) allows any person or body aggrieved by the existence of a private caveat to apply to the court at any time for an order for its removal, and the plaintiff invoked that provision to clear the caveat from the title.

In the course of the proceedings the question arose whether the dispute could properly be resolved on the originating summons or whether it should be converted into a writ action to allow for pleadings and the trial of disputed facts. The court considered that the real difficulty was not merely the mode of proceeding but the absence of necessary parties: the dispute, as it emerged, required that the registered owners of the land also be made parties to the suit before it could be determined. Conversion of the originating summons into a writ, on its own, would not cure that defect, because it would not bring the registered owners before the court. In those circumstances the court concluded that it was inappropriate simply to convert the matter.

The court declined to convert the originating summons into a writ and instead dismissed it with costs of RM3,000, leaving the plaintiff to pursue any properly constituted proceedings with all necessary parties joined. The judgment illustrates that an application to remove a private caveat cannot be adjudicated where necessary parties, such as the registered owners of the land, are not before the court, and that conversion to a writ is not a substitute for joining the proper parties.