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IZZATI & CO :pen: Arshad v Menang bank, Whether Arshad can apply to…

- - - - Case: Life Paradise Sdn Bhd v Export-Import Bank of Malaysia Berhad [2020] MLJU 177
        The defendant argued that sec 10 of the FMS MRE 1933 restricts plaintiff from entering the lien's holder caveat and the entry of the caveat is void in ab initio.
        However, the argument was rejected by the court and the court held that the lien's holder caveat entered by the plaintiff is valid since the plaintiff is given statutory rights under sec 281 of the NLC 1965.
      - Malay Holding - Section 2: "Any registered interest of a Malay as proprietor or co-proprietor in any alienated land included in a Malay Reservation."
      - Application:
        Yes, Arshad can challenge the lien created in favour of Menang Bank on the ground that no lien can be created over Malay Reserved lands
  - - - The duty of the Registrar in respect of an application is purely administrative or ministerial.
        
        Case: Nanyang Development (1966) Sdn Bhd v How Swee Poh (1970) 1 MLJ 46
        "When the land authority receives the application it exercises a purely administrative function, because subsection (1) of section 324 expressly provides that it should not concern itself with the validity of the claim on which the application is based, and that it must grant the application by making the necessary endorsement on the register, together with a statement specifying among other things the extent of the caveat."
        
        Application
        Arshad cannot bring an action against the Land Administrator for wrongly lodging a lien-holder's caveat over such lands because the duty of the Registrar or Land Administrator in respect of an application is purely administrative or ministerial.
        The land administrator should not concern itself with the validity of the claim on which the application is based, and that it must grant the application by making the necessary endorsement on the register, together with a statement specifying among other things the extent of the caveat.
        
        Case: Yong Choang Chung @ Jong Chong Chung v Liao Su Yun Anor The Registrar Land & Survey Department [2009] MLJU 1271
        "Counsel for the Registrar argued that the Registrar had accepted the second caveat that was lodged because it was his administrative duty to do so."
        The court held that " I shall not order the Registrar to** pay costs to the plaintiff for the reason that the Registrar was merely performing an administrative duty and therefore should not be penalized with a costs order."
    - - Waive the prohibition on the entry of lien's holder caveat.
        
        Case: AGRIMAL PROJECT SDN BHD v PENDAFTAR HAKMILIK, PEJABAT TANAH DAN GALIAN, JOHOR & ORS [1998] 5 MLJ 673
        However, if the instrument has been duly registered or claim to the benefit of the tenancy has been duly endorsed or the entry of the lien-holder's caveat has been duly registered before the entry of the Registrar's caveat, the prohibition of the Registrar's caveat will not apply.
        Section 319(3) of the NLC vests a discretionary power to the registrar to waive the prohibition in any case where he is satisfied that to do so will not be inconsistent with the purpose for which that caveat is entered, but, in any other case, he shall reject the instrument or, as the case may be, the application for endorsement or entry of the lien-holder's caveat.
        
        Case: CIMB Bank Bhd (previously known as Cempaka Finance Bhd) v Kamaruddin bin Said (as the administrator of the estate of Said bin Ali, deceased) & Ors and another appeal [2019] 5 MLJ 512
        "Section 319(3) of the NLC empowered the registrar to waive the prohibition on the entry of the LHC. The JC failed to appreciate that there was no evidence whatsoever by the second respondent to show that the registrar had not waived the prohibition pursuant to s 319(3) and that thereby the LHC was wrongfully entered."
        
        Application:
        Power of the Registrar is not purely administrative because s 319(3) provides waiver to the prohibition on the entry of the LHC. This shows that the Registrar has the discretion to protect the interest of the minor.
- - - - based on s 319 of the Code, the existence of the registrar’s caveat clearly prohibited the registration of the plaintiff’s lien holder’s caveat. It followed that the plaintiff’s lien holder’s caveat was unlawfully registered.
        In this case, the facts were similar where the lienholder’s caveat was lodged on the dispute land that have been lodged registrar caveat in order to protect the right of minor.
        The court did not discuss the position of the waive and held the lienholder caveat entered was unlawful by virtue of section 319(1)(b).
    - - where the court of appeal held as the trial court was erred in judgement as they failed to acknowledge that there was no evidence by defendant that registrar had not waived the prohibition as provided under 319(3).
        Hence, the court held that fact that the Registrar had proceeded to enter the lien holder's caveat is sufficient proof that the Registrar had exercised his discretion to waive the prohibition.
- - - - Apply
        The borrower can create a lien on the third party's land to secure the loan on his part.
- - - - Apply
        Whether Arshad can apply for an order to set aside Menang Bank’s lienholder’s caveats on the ground that he had not given any consent to Haider for the creation of the said lienholder’s caveat in favour of Suasa?
        It can be seen that Arshad did not give his consent on creating a lien, therefore he may apply to set aside Menang Bank's lienholder's caveats.