Question 1

A holder of the temporary occupation licence may deal with the licence in any way so long as
such transaction does not amount to an assignment. Comment.

What is TOL?
A licence that empowers licencee to stay on the land on the temporary basis.
The licencee only possess rights in personal on him.
Duration : Section 67 (1) of NLC
- Issued for a term not later than the end of the calendar year in which it commences.
- Expires on 31
st
Dec on the year it was issued.
Lands that can be issued with TOL
Section 65 (1) of NLC
State Authority may issue permit of TOL of :
State land
Mining land (not for the time being used for mining)
Reserved land (not for the time being used as reserved)
Who can issues TOL?
Section 66 of NLC
State land : Land administrator
Mining land : Land administrator with approval of senior inspector of mines/ officer in charge of
mining.
Reserved land : Land administrator with approval of officer in charge of the reserve land.
TOL is not capable of transfer & transmission of death.
Section 68 of NLC
TOL shall not be capable of assignment.
Assignment : Transfer.
TOL shall terminate on the death of the holder of the TOL or dissolution of the company.
Exception : Section 416 of NLC ; if there is substitution of holder applied by
the present holder in F 30c to the Registrar.

i. TOL cannot be transferred.
Hee Cheng v Krishnan (1955)
Licencee under TOL entered into an agreement to sell the land with a house to a purchaser.
The court held the purchaser was not entitled for specific performance for TOL land since sell
and purchase of land is void.

ii. TOL cannot be assigned.
Govindaraju v Krishnan (1962)
Letting out of room in house on TOL land not amounted to assignment of TOL.
The court recognised his claim for rental.


iii. TOL cannot be transmitted upon death.
Papoo v Veeriah (1965)
An administrix is not entitled to inherit the land held under TOL.
She filed an action demanding a TOL since shes the beneficiary of the deceased.
The court held that nobody has claimed in law to TOL because TOL cannot be inherited to the
children or others as TOL expires when the TOL holder died.

iv. TOL holder is not entitled to any compensation upon termination of TOL.
Teh Bee v K. Maruthamuthu (1977)
- TOL holder had no right to be compensated by the subsequent TOL holder or State Authority
upon the expiry or cancellation of his licence.

v. TOL holder has right to possession.
Mohamed v Kunji Mohidin (1967)
A TOL holder has an exclusive possessory right to the land and things thereon, but not the right
of ownership of the land.

vi. TOL holder has right to sue.
Julaikha Bivi v Mydin (1961)
Julaikha is the present TOL holder of the land.
Mydin who was the previous holder erected the house on the land.
Julaikha requested Mydin to move out from the house but refused by him.
The court held that a holder of TOL who is in possession of the land can sue any trespasser.

vii. TOL holder is a trespasser if he did not leave the land upon termination.
PP v Yap Tai (1947)
If the TOL has expired, the TOL holder is a trespasser if he still stay on the land.
TOL holder can stay on the land only within the period of TOL.

Conclusion
The actions of TOL holder regarding the TOL lands are protected by the court as long as the
transactions does not amount to assignment.










Discuss the paramount and subsidiary rights by referring to the cases
(a) Lacroix v The Queen
(b) Swetland v Curtiss

The land owner, licensee and lessee have rights to use and possess the land which was given to
them.
Enjoyment of land - to get benefit out of the land e.g cultivation, develop it, deal with it, etc.
Paramount and subsidiary rights are rights which are enjoyed by the proprietor, licensee and
lessee.
However, these rights are qualified (limited)-enjoyment must be reasonable.
Paramount Right
Known as natural right rights.
Natural right=Right comes with the land.
Not absolute rights

In Malaysia, Section 44 of NLC:
(a) Right to enjoy the column of the air space
(b) Right to support from the adjoining land
(c) Right to access

THESE CASES
NATURAL RIGHTS SECTION 44(1)
(a) Exclusive use and enjoyment of column of air space above the surface of land as reasonably
necessary to the lawful use and enjoyment of the land;
RIGHT TO USE AIRSPACE
Common law principle
Whose is the soil, his is also that which is above below it
(cujus est solum ejus set usque ad coelum et ad infros)
Case: CORBERT v. HILL
At common law, the owner of the land is the owner of everything up to the sky and down to the centre
of the earth
UNDER S. 44(1) OF NLC
Reasonably necessary
Lawful use and enjoyment
Practical limits imposed to utilize the right
Exclusive but not absolute
Limited by Sec 19 Civil Aviation Act 1969
Subsidiary Right
Known as limited rights.



Section 45 of NLC:
(a) To extract, move or use rock material
(b) To fell, clear, destroy, remove forest produce
(c) To extract any metal or mineral

Lacroix v The Queen
FACTS
Suppliant owned some vacant land close to the Dorval airport and used it intermittently for
agricultural purposes. In 1942 the Crown expropriated an easement over it and adjoining lands
for an underground cable and poles for the installation and maintenance of an approach lighting
system to one of the runways of the airport.
In this case, the plaintiff claim for damages on the basis that as the owner of the land, he has the
right not only on the surface of the his land but also of what is below and above of his land.
He claimed that the establishment of the flightway and the flying of planes over his land was an
interference with his rights of ownership and a disturbance of his full enjoyment of his property.
ISSUE
Whether the plaintiffs interest includes the air space above his land.
HELD
The plaintiff failed in his action because air and space are not susceptible of ownership and fall
in the category of res omnium communis.
the owner of land has a limited right in the air space over his property - limited by what he can
possess or occupy for the use and enjoyment of his land.
By putting up buildings or other constructions the owner does not take possession of the air but
unites or incorporates something to the surface of his land. This which is annexed or
incorporated to his land becomes part and parcel of the property.
The court then examine the maxim cujus est solum, ejus est solum, ejus est usque ad coelum of
the Middle Ages.
This principle was admitted at a time when nobody could foresee our modern inventions and
developments. It would be difficult to apply rules of law of a past period which had no idea of
the sets of facts and circumstances that exist at the present time.
Article in The Canadian Bar Review of February 1953, entitled "Private Property Rights in the Air
Space at Common Law", by Jack E. Richardson: It has not been necessary for an English court to
give literal effect to the maxim cujus est solum, ejus est usque ad coelum, and no court has done
so,-...
Hence, the owner of land is not and cannot be the owner of the unlimited air space over his
land, because air and space fall in the category of res omnium communis (space as the common
heritage of mankind).





Swetland v Curtiss
FACTS
Plaintiffs are the owners of a tract of 135 acres located on the west side of Richmond Road in
the village of Richmond Heights, Ohio.
The defendant owns a tract of about 272 acres immediately opposite on the east side of
Richmond Road and intend to use their property as an airport and flying school.
ISSUE
Whether the maxim, Cujus est solum ejus est usque ad coelum, has a fixed application or
established such property rights in a landowner as to make flights over his lands a trespass or a
nuisance?
* Cujus est solum ejus est usque ad coelum= property holders have rights not only to the plot of land
itself, but also to the air above and (in the broader formulation) the ground below.
HELD
1. Maxim (Cujus est solum ejus est usque ad coelum) has never been applied in cases which fix rights in
air space normally traversed by the aviator. There are no precedents or decisions which establish rules
of property as to such air space.
2. In the legislation (the Air Commerce Act of 1926 )hereinafter considered it is clear that both Congress
and the State Legislature proceeded upon the theory that a landowner has no exclusive property in the
higher air spaces.
3. The court then referred to The Paquete Habana by Pollock, in his work on Torts (13th Ed.) - the rule
that a landowner has an exclusive right to the air space above his land only to the extent that such
ownership is necessary to and for effective possession.
4. Constitutional provisions guaranteeing the right of property do not forbid legislation which has for its
purpose the regulation and adjustment of the conflicting rights and interests of the landowner and the
public.
5. The Congress and the State Legislatures had the power to enact reasonable regulations to adjust
private rights and harmonize conflicting interests relating to navigation, and that landowners, at most,
did not have exclusive rights in the super incumbent air space.














QUESTION 3 (c) & (D)
APPLICATION OF PARAMOUNT & SUBSIDIARY RIGHTS


MADAM CHAH SIAM V CHOP CHOY KONG KONGSI [1939]

CASE SUMMARY
The plaintiff had been in occupation of a large fish pond on the State Land which she occupied
under Temporary Occupation License. The large pond was in fact an old worked-out tin mine.
The land adjoining at the one end of the large fish pond was held under the mining lease by the
defendant, Chop Choy. The mining was started by the defendant since 1924 and by the end of
1936, the work of mine was approaching the near the boundary of the plaintiffs large pond.
So the defendant obtained a permit to bore the land and apply the mining title on which the
fish pond was situated. His application was approved but the title did not issue to him until
August 1937. On April 1937, whereby the large breach opened and the water from the pond
poured into the mine, bearing away the greater part of the fish in the part. At this time, the land
was still the State land over which the defendant has no rights whatsoever.
CLAIMS
The negligence on the defendant side on carrying on his mining operations.
Relies upon the doctrine of the right lateral support to land. The plaintiff claimed that the land
where her fish pond was located will not collapse if the defendant did not remove the earth for
mining work that supporting the land.
Held
1
st
claim ~ negligence on the defendants side on carrying his mining operations.
There is no such legal duty to take care owing from the defendant to the plaintiff provided that
he does not out step the boundaries of his land
2
nd
claim ~ doctrine of the right lateral support .
The plaintiff does not entitled to right of support because this right only applies to the land in its
natural state and the right does not become a greater right when excavations are made on the
land.

Paramount right
Section 44 (1) (b) of NLC 1965
The right to support of the land in its natural state by the adjoining land.
Natural state i.e. land unburdened with building or unweakened by excavations.
Right to Support : adopted from the common law principle that a remedy is available to
someone whose rights have been violated.
Negative right something that the proprietor of the land should not do on his own land that
might endanger the land or property of others.
Subsidiary right
Subsidiary right does not apply in this case because the issue in this case were focused on the
negligent act of the defendant and the right to support of land under the paramount right.
Do squatters has any right under the National Land Code 1965?

Issue: Whether squatters has any right under the National Land Code 1965
Squatters are the people who settles on land or occupies property without title, right, or
payment of rent.

Section 42 NLC
Section 42(1)(a),(b)(c)- Powers of disposal.
The state authority shall have power under this act-
To alienate State land in accordance with the provisions of section 76
To reserve state land, and grant leases of reserved land, in accordance with the provisions of
Chapter 1 of Part Four
To permit the occupation of State land, reserved land and mining land under temporary
occupation licenses issued in accordance with the provisions of Chapter 2 of Part Four.

Section 425 NLC
Section 425(1) Unlawful occupation, etc., of State Land, reserved land or mining land.
Any person who, without lawful authority-
Occupies, or erects any building on, any State land, reserved land or mining; or
Clears, plough, digs, encloses or cultivates any such land or part thereof; or
Cuts or removes any timber or produce on or from such land,
Shall be guilty of an offence, and liable on conviction to a fine not exceeding ten thousand
ringgit, or imprisonment for a term not exceeding one year.

Section 48 NLC
Section 48 No adverse possession against the State.
No title to State land shall be acquired by possession, unlawful occupation or occupation under
any licence for any period whatsoever.

Sidek bin Hj Mohammed & 461 ors v The Gov Of The State Of Perak & Ors(1982)
Appellants were squatters and came to Telok Anson from Kedah, North Perak and Selangor and
opened up a large part of a jungle area.
There was meeting between the squatters and government officers in which it was alleged that
the State Director of Land and Mines said that each settler family would receive five acres of
land and published by Utusan Melayu which quoted BERNAMA as a source.
Some squatters were eventually given land but others including the appellant were not given
land and were given notice to vacate the land. The appellants later brought an action
contending they were entitled in equity and law in possession as the pioneered the land.
JUDGMENT
it is clear beyond doubt that the appellants have no cause of action against the respondents
and they cannot succeed because they are squatters. Squatters have no right either in law or in
equity; illegal occupation of State land is an offence under section 425 of the National Land
Code.
in this case what was said by Bernama did not bind the government. Neither did the
StateDirector of Lands and Mines have authority to bind the Government to alienate land to the
squatters;
The only way to obtain State land is by way of the National Land Code. The case falls within the
broad principle that where an Act creates an obligation and empowers the obligation in a
specified manner, it is a general rule that performance cannot be enforced in any other manner.
It is well established that a court of equity will never assist squatters to resist an order of
possession illegally acquired and it will never intervene in aid of wrongdoers.

Kabra Holdings Sdn. Bhd. v. Ahmad Shahlan & Ors. & Others Person Unknown
The plaintiff applied to recover possession of the disputed land on the ground that the plaintiff
is entitled to possession and the defendants are in occupation without license or consent.
The defendants applied to set aside the said order on the following grounds:
(i) That the previous solicitor's failure to oppose the plaintiff's application was done
contrary to the instructions given.
(ii) That the Menteri Besar had promised/represented that the defendants could occupy
the disputed land.
(iii) That the plaintiffs having charged the disputed land to MBf Property Services Sdn.
Bhd. had no longer any locus standi to maintain this action.
The defendants also applied for stay of execution pending the outcome of a suit filed in Shah
Alam High Court wherein the subject matter is the same disputed land.
JUDGMENT
The defendants can only have right to occupy the disputed land if, and only if, they had
obtained the right to occupy the said land by way of the National Land Code.
Adverse possession regardless of the period can never give the defendants the right to occupy
the disputed land pursuant to ss. 48 and 341 of the National Land Code.
The promise or representation of the Menteri Besar of Selangor allowing the defendants to
occupy the disputed land cannot in law and in equity be pleaded against the state authority.
Having found that the defendants are illegal squatters order of possession should be granted to
the plaintiff. There is no statutory or inherent power to stay the execution of the order.