NORAINI BINTI AHMAD v 1. ) PAIZA BINTI ZAKARIAH 2. ) MOHD PAZIM BIN ZAKARIAH 3. ) MOHD PAZLEE BIN ZAKARIAH 4. ) PALILA BINTI ZAKARIAH
Catchwords
Order 33 rr 2 & 5 Rules of Court 2012 — Preliminary issues — Separate determination — Scope of jurisdiction — Whether issues suitable for disposal without full trial — Requirement that issue be clear, discrete and capable of determination without resolving disputed facts — “Treacherous short cut” — Whether application seeks determination of entire merits. Civil procedure — Preliminary determination — Distinction between pure questions of law and mixed questions of fact and law — Whether court entitled to decide core issues of claim and counterclaim on affidavit evidence — Whether substantial saving of time and costs demonstrated. Land law — National Land Code 1965 — ss 89, 340, 341, 342, 343 — Indefeasibility of title — Co-proprietorship — Undivided shares — Right to possession and enjoyment of whole — Whether consent of some co-proprietors sufficient — Effect of absence of partition — Whether occupation falls within share of particular co-proprietor. Licence — Permission to occupy land — Whether licence granted by previous proprietor survives transfer of title — Whether licence is personal in nature — Whether licence terminates upon death of grantor or original permittee — Requirement of authority from registered proprietor. Trespass — Unlawful occupation — Long occupation — Whether duration of occupation confers legal or equitable rights — Adverse possession — Exclusion under s 341 National Land Code. Equity — Proprietary estoppel — Improvements to land — Expenditure by occupier — Requirement of inducement or encouragement by landowner — Whether equitable claim maintainable in absence of pleaded representation or assurance. Pleadings — Binding effect — Whether court confined to pleaded issues — Whether unpleaded matters may be relied upon — Interaction between pleading principles and procedural applications under Order 33. Practice and procedure — Affidavit evidence — Limitations of affidavit-based determination — Need for oral evidence and cross-examination — Evaluation of credibility — Whether factual disputes render summary determination inappropriate. Trial — Case management — Whether issues should proceed to full trial — Preservation of parties’ rights to ventilate factual disputes — Proper exercise of judicial discretion in refusing preliminary determination.
Practice Areas
Judges (1)
Judgment
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Read on eJudgmentSource: eJudgment (ma-22ncvc-57-11-2023)