Case Presentation Mohamed Said v Fatimah [1962] MLJ 328

Zati Kamilia Bt Zubir Goh Jen Nie Wong Chan Hwa (LEB 120102) (LEB 120105) (LEB 120099)

Facts:
18/12/1956: Appellant was granted a Temporary Occupation Licence (TOL). TOL gives the holder thereof exclusive possession of the land the subject matter of the licence during the period for which the licence is expressed to be valid (from the date of issue December 31 of the year of issue). 3/3/1957: A paid the annual payment which was required by the licence to have the possession. A made no annual payment for 3 consecutive years (1958,1959 and 1960) but he made payment for those 3 years on 10/9/1960. A paid annual payment for 1961 on 5/7/1961. During this time, the R remained on the land. A brought an action for trespass on May 6, 1961, against the respondent.

Issues:
1. Whether the TOL confers a TOL holder (Appellant) the possession and interest of the land. Whether the Appellant was the TOL holder when the summon was issued.

2.

Whether TOL confers exclusive right and interest to the holder.

Case: Julaika Bivi v Mydin

An action for ejectment in an action of trespass will lie at the instance of the holder of a TOL. 1. Licence must confer upon the licensee the exclusive right to occupy the land in respect to which the licence is issued to the exclusion of anyone else. 2. During the period for which the licence is valid, the licensee has a right to immediate and exclusive possession to the land. 3. Conclusion: A, so long as he was the holder a current of TOL, had an undoubted right to commence an action for trespass against the R.

Whether A = TOL holder? when the summon was issued.

Rule 11(1) Land Rules provides: 1. Every licence shall expire not later than 31st day of December in respect of the year for which it was issued. 2. The licence form should be substantially in the form found in schedule V to the Land Rules. * In fact, the form used and issued to A is not exactly as set out in the schedule.

 A licence is only valid for the period commencing with the payment required by the form until the 31st December in each year. The Actual form prescribed in Schedule V states: This licence is not valid beyond 31.12.56 unless renewed. If renewed a separate official receipt showing the period of validity of the renewal must be obtained for each renewal.

 Payment is required as a condition precedent for the grant of the original licence Payment is also required as condition precedent of renewal of the licence in respect of the same land. The receipt of payment is required to show the period of validity, as the renewal must date from the date of payment only.

 If a licensee does not make payment before or on 1st January in any year, the licence expires and he is in unlawful possession of the land. Even though late payment is made, the validity of the renewed licence will not be backdated but commences from the date of payment. Conclusion: A was not the person who entitled to possession of the land when the summon was issued.

CONCLUSION
TOL gives the holder exclusive possession of the land and the subject matter of the licence during period for which the licence is expressed to be valid. (from the date of issue to the 31st December of the year of issue)

If the licence is renewed, the period of the licence confers the exclusive possession to the licensee is that commences from the date of payment is made to 31st December of the year of renewal since monetary payment is a condition precedent to the grant of any licence and its renewal.

Opinions
We agree with the judgment by the Court of Appeal that at that time the appellant had no right to the possession of the land and could not have instituted an action against the respondent for trespass . Temporary Occupation Licence: gives the holder thereof exclusive possession of the land the subject matter of the licence during the period for which the licence is expressed to be valid which is from the date of issue to December 31st of the year of the issue. If the licence is renewed, the period for which the renewed licence gives exclusive possession to the licensee must, since a monetary payment is a condition precedent to the grant of any lucence or renewal thereof, commence at the date when the payment is made. Issued over State land and no one is permitted to occupy State land without leave and to do so constitutes an infringement of section 151 of the Land Code and renders such a person liable to prosecution and on conviction to punishment by the Criminal Courts.