[2013] 5 MLJ 423 (MRL)

Fauziah bt Ismail &Ors v Lazim bin Kanan & Ors

Case reviewed by Muhamad Ali bin Hussain 1425989

Brief facts:- The appellants were registered owners of Malay Reserve Land and begun

summary proceedings for possession of the land as they found out the respondents were in

occupation of land without their consent. The respondents contended they were in lawful

possession of the land and relied upon a sale and purchase agreement ('SPA') executed

between the appellants' late father which evidenced an absolute sale of the land in

consideration for the payment. At that time, the other party in consideration was an

Indonesian and only acquired Malaysian citizenship after the court proceedings. The

appellant applied under O 14A and/or O 33 of the Rules of the High Court 1980 ('RHC') for

the determination of the preliminary question whether Malay Reserve Land could be sold to a

non-citizen of Malaysia but the court dismissed due to the respondents had shown they were

not trespassers and pursuant to a SPA under which consideration was paid. Before the Court

of Appeal the respondents accepted that although Lazim did not fall within the definition of

'Malay' at the moment the respondents should be allowed to continue to be in possession of

the land since they had been occupying on 1993.

Judgement& Analysis:-

Allowing the appeal and entering judgment in favour of the appellants:

1. The land, being Malay Reserve Land, could not be sold to a non-Malay or non-citizen.

The SPA relied upon by the respondents was void ab initio and unenforceable (Based on the

undisputed relevant facts relating to the preliminary issue posed and the interpretation of the

1
relevant laws and documents in the case, the answer to the question posed by the appellants

must be in the negative) ie(see para 32 (b)).

2. The SPA entered in 1993, Lazim was not a citizen of Malaysia. Thus, he could not claim

to be 'Malay' for the purpose of the Malay Reservation Enactment. (see para 23). ((Section 2

of the Enactment defined 'Malay' as a person who belonged to any Malayan race and

habitually spoke the Malay language or any Malayan language and professed the Muslim

religion. The words 'Malayan race' must refer to a race in Malaysia (or Malaya previously). In

other words, it must refer to a citizen of the country, but not to a non-citizen)) (see para 24).

3. Lazim, who was born in Indonesia in 1946,did not qualify for the citizenship requirement

either under paras (a) or (b) of the definition. ((Article 160 of the FC defined 'Malay' as a

person who professed the religion of Islam, habitually spoke the Malay language, conformed

to Malay custom and (a) was before Merdeka Day born in the Federation or in Singapore or

born of parents one of whom was born in the Federation or in Singapore, or was on that day

domiciled in the Federation or in Singapore; or (b) was the issue of such a person. ))(see

paras 25-26)

4. Anon-Malay purchaser could not acquire title to Malay reserved land under the

Enactment in any way method of acquiring due to it will defeat the purpose of the Enactment

which was to safeguard Malay ownership of Malay reservation lands (see paras 30-31).