Two days ago, I had issued a statement calling on the Natural Resources and Environment Minister Datuk Seri Azmi Khalid to stop sleeping on his job as he had neither done nor said a single word in his three years as Minister in charge of the land portfolio about the gross injustice of the land law which allowed forgery and fraudulent issue and fraudulent transfer of land titles, with hundreds of landowners who have become victims running into tens or even hundreds of millions of ringgit.
It is common sense that an innocent purchaser cannot obtain good title from an impostor, impersonator or forger. Very importantly, a forger cannot pass title by using a fraudulently procured document of title so that even a subsequent innocent purchaser does not get any good title.
However, in land law, as a result of the 2001 Federal Court decision in Adorna Properties Sdn Bhd v Boonsom Bunyanit, there is now a shocking exception — with Section 340 of the National Land Code (NLC) interpreted to favour innocent buyers of land transferred through forgery or fraud, which has destroyed the integrity of land titles and the sanctity of property, leaving the original owners without any means to recover their land.
When Datuk Seri Abdullah Ahmad Badawi became Prime Minister, he issued a “wake up call” to all land offices telling them to buck up to do justice to the rightful landowners.
Why has Azmi as the Minister in charge of the land office in the past three years failed to take any action to end the gross injustice in the Adorna case, at least to stop any post-Adorna development with hundreds of landowners falling victim to fraudsters, forgers, impostors and impersonators becoming the “new Adornas” by amending the National Land Code?
I have today another batch of cases involving gross injustices in land administration — involving some 280 plots of land, both residential and agricultural, which changed hands without the knowledge of the landowners in Ulu Yam, Selangor.
Low Kim Chai and 15 other landowners in Ulu Yam are among the complainants that their plots were transferred to family members and relatives of a local MCA leader and another former village head without their knowledge.
Their predicaments were quite similar with the 18 landowners in Kapar, where plots of land given to them under the Rancangan Buku Hijau (Green revolution) were transferred to a local MCA Datuk without their knowledge (Malay Mail cover story, 19 March 2005).
The local land office officials have told the villagers about the bad news but they were unable to give details relating to the respective new landowners. Some of the landowners have made police reports. They have given the names of the suspected MCA leaders to the police. The police were urged to start investigations immediately as the scam involves so many villagers and landowners but there was no response from the police until today.
The victims were subsequently brought to the Selangor Menteri Besar’s office as well as the public complaints bureau in Shah Alam. Following the complaint, the letter, Encik Tukiman (the land office chief) confirmed that some of the victims’ plots had indeed changed hands but he too failed to give further details except confirming that the name of the alleged MCA local leader Tan Kim Peing was indeed in the list of “new ” landowners. But there was no action taken against Tan by either the authority or his party, MCA.
Reports to the Anti-Corruption Agency (ACA) were also a waste of time and effort, bringing no results.
Azmi should explain why there is so much hanky-panky, abuses of power and even corruption nvolving the Land Office, which is regarded by Malaysians as one of the government departments topping the list of “most corrupt” departments.
I call on Azmi to give a full statement on these cases of injustices in land administration and law in the country, starting with his reply in Parliament next week during the winding-up of the debate on the Royal Address.
When is Azmi going to implement the Prime Minister’s directive that the Land Office to “buck up” and “clean up” so that it would no more be regarded as one of the top “corrupt” government departments in the country — to end the injustices and malpractices of the Adorna, post-Adorna and Adorna-like cases in land administration.
uncle kit, don’t waste your time – this azmi is the clown who first offered, then retracted the “kancil for mykad” promotion right?
and when the new responsible minister cancelled it, this same clown claims that he had wanted to cancel it too, but forgot.
he obviously doesn’t plan nor take initiatives and be responsibile & accountable for them (if any) – you expect him to take affirmative action now?
no eyes see… they just take it away your porperties…. law is against the victim!
For property owners whose developer sold your project to Danaharta also should check their status. Even if you have settled your bank loan in full. This is especially important for projects such as condominiums with strata titles. A screwed up developer (who will be when they are in financial problems) may have messed up accounts or maybe even deliberately do some accounting acrobatics and inflate the value when selling the assets to Danaharta. You could find yourself owing money to Danaharta without you knowing it.
if this is the case, what is there to stop them fr taking each n every person’s property? it seems like MCA has already started sucking more blood fr this loophole. what is there to stop e fraudsters to take away ur house, uncle kit? who knows, right before e next election, DAP, Keadilan n PAS might all find tt their home n party properties changed owners w bn cronies paying RM1 for all your land.
well, i think this really need some international publicity. n they still trying to promote to foreigners tt “make malaysia ur 2nd home” thingy. buy house here just to find out tt 1 yr later, it is not their house anymore without any justice or compensation. as if khalwat raids, NEP, high crime rate n corruption not enough to chase away foreigners.
Maybe this is the chief reason why foreign investors are staying away from Malaysia!
How can the land you own and paid good value for disappear right under your nose? If someone pulls away the carpet under my feet, I will know. If someone prints a duplicate LAnd Title and transfers it out of my name, I wouldn’t know. Now we know BN stands for ‘Banyak Nonsense’ party!
Does this mean we have to stop buying landed property till the National Land Code is amended?
How do we know when our land is stolen right under our nose? Do we have to camp outside the Land Office 3 to 6 months in a year just to ‘protect’ our land from being transferred fraudulently!
Those who wish to make Malaysia their second home, beware. One day you might discover that the owner of your property might be one big shot from UMNO or MCA. And you will be not be able to anything about it.
Go to court? Ha! you will lose more money on legal costs.
You may have to hith hike back to your own country…. and penniless to boot.
Remember, this is Bolehland, the land of wolves in sheep’s clothing.
“It is common sense that an innocent purchaser cannot obtain good title from an impostor, impersonator or forger. Very importantly, a forger cannot pass title by using a fraudulently procured document of title so that even a subsequent innocent purchaser does not get any good title.†LKS
I’ll have to disagree respectfully submit to you that law has nothing to do with common sense – just as there is nothing common about law.
A purchaser or the transferee in good faith, for value and without notice could obtain a better title than the transferor is the short answer.
HORNBILL: How can the land you own and paid good value for disappear right under your nose?
Someone doing a Houdini with your land??
HORNBILL: If someone pulls away the carpet under my feet, I will know.
But that is the law of physics and has nothing to do with the law regarding real property.
HORNBILL: Does this mean we have to stop buying landed property till the National Land Code is amended?
You could try living on someone else’s property and if you squat long enough and if the land turns out to be government property, you could then apply for TOL or temporary occupation license. As a licensee you acquire some interest in the land and if an innocent purchaser as in ‘innocent’ and not an ‘innocent purchaser for value, in good faith without notice’ comes by, you could try selling it to him.
HORNBILL: How do we know when our land is stolen right under our nose?
You would know because then you’d fall flat on your face.
HORNBILL: Do we have to camp outside the Land Office 3 to 6 months in a year just to ‘protect’ our land from being transferred fraudulently!
You would do better camping in front of Parliament building because that is where the buck stops.
P.S.
The law sometimes rewards the rogue who quickly disappears never to be seen again to exotic places like Macau where he’d enjoy the fruits of his labor in style and in the company of beautiful ladies of the night. You Hornbill, might want to give that a thought or two.
Undergrad2 says:
“I’ll have to disagree respectfully submit to you that law has nothing to do with common sense – just as there is nothing common about law.”
It is precisely when the law is repugnant to common sense and offends the common notion of justice that the law needs to be changed. There is nothing sacrosanct about the law! It would take more than Dicey to convince the people to accept a law, for instance, that calls for all blue eye boys to be euthanasized. Likewise, the point has to be made that Malaysians would have to be idiots to let the ‘Banyak Nonsense’ BN Coalition to get away with murder for all the wrongs and misdeeds they have done including the foul legislation they defend and their shameless arguments against legislative chnages that conduce to the common good. Nobody has answered my question where did that racist Minister Nazri get his law degree – just read the consistent stream of garbage he issues in the form of press statements!
So when the ‘Banyak Nonsense’ BN Coalition passes or perpetrates stupid and archaic laws that covers a multitude of sins (mostly theirs!), we can’t close one eye or both eyes. That I believe is the honourable Opposition Leader’s contention.
To Undergrad2
I’m kind of confused – I was under the impression that equity would only benefit the innocent transferee where and when the fraudster had good title in the first place thus such cases usually appear in trust cases where the trustee commits fraud. This Adorna case arose totally out of fraud, and as Mr LKS says, logically good title should not pass. Would you mind clarifying this for me?
“Nobody has answered my question where did that racist Minister Nazri get his law degree – just read the consistent stream of garbage he issues in the form of press statements!” – ENDANGERED HORNBILL
LOL I heard that he graduated in London (makes me want to hide in shame). Anyways, he must have failed public/constitutional/admin law judging from his wonderful comments regarding judicial review. What a disgrace!
He got Third Class.
“I’m kind of confused – I was under the impression that equity would only benefit the innocent transferee where and when the fraudster had good title in the first place thus such cases usually appear in trust cases where the trustee commits fraud.†Slashed
When a fraudster has a good title?? How could a ‘fraudster’ (I prefer the generic term: rogue) have a good title? Don’t actually know what you meant to say.
“Those who seek equity must come with clean hands†– a text book quote, often repeated by my law professor who himself is never in the habit of washing his hands whenever he goes to the toilet. That is another matter for another day.
The thief who steals a car, makes off with it and then represents himself as the real owner to a purchaser who buys it, who in turn sells it to you, you could be acquiring a better title that the thief. You must, of course, meet certain requirements before you could acquire a better title than the thief had. Now why is it that I think you know what these are? Now where does that leave the true owner? He lost his car to a thief and you end up with his stolen car and you have a good title to it.
In banking law which is essentially contract law applied, when someone represents himself as the drawer of a check or as the payee (when in fact it was a stolen check) and you receive it “in due course, in good faith, for value and without notice†you could end up having a better title than the thief had.
A frauster trustee does have good title because he is the legal owner anyway. He just breached his fiduciary duties. My question was whether or not the law is such that thieves -therefore never having title in the first place- can pass on title to another. I just looked it up. Yeah..seems that way.
Well shouldve known anyway, bona fide purchasers are equity’s darlings after all. Pft*
It would be funny if A’s land gets fraudulently sold to B who then loses the title because it gets fraudulently sold to C who then loses it because it gets sold to… I mean the bastard fraudster who started it could just keep selling it hehehe stupid.. but possible.
With so many rich-land-owning MPs around, someone should do that to them.
LOL How on earth did you find out that your lecturer has got dirty hands? Oh man, gives new meaning to ‘handouts’.
degree now in petaling street also can find la. And the way they talk without much sense we know they got it from some internet scam.
Anyway, tell me one good minister who is really working 9-5. Most of them are already enjoying life.
“This Land is My Land”
This land is my land,
And only my land
And I just take land,
If I can’t buy land
And if I spy land,
Well, then it’s my land.
This land was made for only me.
This land was your land,
Now it is my land
All this wond’rous land,
Just south of Thailand,
I wish for more land
Well, there’s Singapore Island,
I hope they’ll soon belong to me.
YB Kit,
The facts on how Low Kim Chai and 15 other landowners in Ulu Yam and 18 landowners in Kapar lost their lands are unclear from excerpts in this blog thread.
Did individual titles subsist for the lands owned by Low Kim Chai and 15 other landowners in Ulu Yam and 18 landowners in Kapar? If so, they would have been registered owners of the lands governed by statutory regime of the National Land Code (NLC); they might, just like Boonsom Bunyanit, have lost their lands by transfer procured by either fraud or forgery by others. They would have to try fight back for their lands in court based on interpretation of section 340 of the NLC. They would, in my opinion, have a good chance.
Yes, the 2001 the Federal Court’s decision in Adorna Properties Sdn Bhd v Boonsom Bunyanit would have laid down an interpretation and precedent unfavourable to original owners (Low Kim Chai and 15 other landowners in Ulu Yam and 18 landowners in Kapar) but who says and who can be certain that the Federal Court today led by Chief Justice of Malaysia, Tun Ahmad Fairuz Sheikh Abdul Halim would not depart from reasoning of the Federal Court led by Tun Eusoffe Chin in 2001?
I argue the possibility of departure because the interpretation of section 340 of NLC by Tun Eusoffe Chin’s Federal Court in 2001 is, with greatest respect to the Federal Court then, incorrect.
Our NLC is based on Torren System of land registration adopted from Australia. The NLC and Torren system place great emphasis on registration and how registration confers indefeasibility. “Indefeasibility†means immune or cannot be defeated by adverse claims.
Indeed our whole system of land registration revolves round this concept of indefeasibility – (1) when in stage 1, indefeasibility arising from registration of property will render the ownership so registered in the original owner’s name entirely immune from attacks of others and un-defeatible in the face of adverse claims, when in stage (2) it shall, change character and cease to be indefeasible – indeed it has become “defeasible†(ie can be defeated) when registration of ownership in the first innocent purchaser’s name is immediately procured by a rogue using forgery, misrepresentation and fraudulent means and when as in stage (3) when registration becomes and resumes its character of “indefeasible†if the property is further transferred by the first innocent purchaser to and registered in the name of the “subsequent second innocent purchaserâ€Â.
There is strong logic in these 3 parts/stages dealt differently.
The first innocent purchaser’s obtaining registration in his name under stage 2 cannot claim protection from “indefeasibility of registration†concept in the face of an attack from the original registered owner in stage 1 because his (the first innocent purchaser)’s registration was directly achieved by a forged instrument or fraud by a rogue, and forgery and fraud do not pass a good title.
The same is not true in the case of the “subsequent second innocent purchaser†in stage 3. He obtains registration of property ownership from the first innocent purchaser in stage 2. Unlike in stage 2, there was no forgery or fraud implicated in “subsequent second innocent purchaser†obtaining registration in stage 3 from a transfer effected by first innocent purchaser from stage 2. The registration of ownership in “subsequent second innocent purchaser†therefore reverts to its original indefeasible character – good and strong against even the claim of the original owner from stage 1.
This is the crux of our section 34 – indefeasibility in stage 1, defeasibility in stage 2 and deferred indefeasibility in stage 3.
Tun Eusoffe Chin’s Federal Court in 2001 made a wrong decision because it mixes up first innocent purchaser in stage 2 with “subsequent second innocent purchaser†in stage 3 as if they are the same – just because in both stages the purchasers are so called innocent!
Adorna Properties Sdn Bhd is first innocent purchaser in stage 2 and therefore its ownership registration directly procured from fraud and forgery is defeasible in that it should be defeated by an attack/challenge by stage 1’s original owner, Boonsom Bunyanit. Instead, the Federal Court then decided Adorna Properties Sdn Bhd’s ownership registration as “indefeasible†thus defeating the challenge/attack by original stage 1 owner.
This is wrong. If, for example,I, a “subsequent second innocent purchaser†were to get the property from the first innocent purchaser, Adorna Properties Sdn Bhd, only then the deferred infeasibility concept kicks in – protecting me against and defeating – Boonsom Bunyanit’s claim!
It appears that Tun Eusoffe Chin’s Federal Court in 2001 had jettisoned the entire concept of protection kicking in only by way of “deferred indefeasibility†at stage 3 in favour of immediate indefeasibility at even stage 2 level, contrary in my opinion, to the legislative intent of parliament when the NLC was passed in 1965 in favour of deferred indefeasibility!
In short, we cannot blame the law, the land code or section 340. The fault of injustice to Boonsom Bunyanit lies not in the law that everyone is now clamoring for amendment. The fault lies in interpretation of the law and such a fault can be easily rectified by the present Federal Court under Ahmad Fairuz departing from decision of 2001 Federtal court led by Eusoffe Chin!
Neither can we blame Natural Resources and Environment Minister Datuk Seri Azmi Khalid for all of Boonsom Bunyanit’s woes and injustice except, very indirectly, as I have earlier posted, to the extent that land office personnel might have colluded with the forger to facilitate the forged title or power of attorney. Again if the fraud were perpetrated by false identity card, then the proper minister to blame is the Minister in charge of identity cards (not Azmi Khalid) to whom we may ask what kind of identity cards are being issued that cannot be differentiated from fakes?
Returning to Low Kim Chai and 15 other landowners in Ulu Yam and 18 landowners in Kapar – the nature of their loss of lands may not have exactly stemmed from them being registered owners like Boonsom Bunyanit for which the land code applies. Maybe there’s no titles to their lands. When it is said that their lands were “transferred to a local MCA Datukâ€Â, one is not quite sure if by the word “transfer†they meant it in layman terms of the land with no titles ending in someone else’s benefit or name or as in the technical sense of actual “transfer†under our land code, in cases of land like that of Boonsom Bunyanit for which separate titles subsist.
The facts are not that clear. It might have been another scenario. Maybe politicians have promised them some lands before election. District officers, as instructed by politicians, give them some plans setting out this and that plots of land measuring how many acres, roods poles etc supposedly belonging to them in exchange for votes.
After election, instead of honouring the pledge, the State authority alienates and gives it for a nominal sum to some politician’s cronies and Low Kim Chai and 15 other landowners in Ulu Yam and 18 landowners in Kapar would then cry “murder†and how their lands promised to them have been so called “transferred†to some MCA Datuk. This is entirely a different situation and ball game from that Adorna Properties Sdn Bhd and Boonsom Bunyanit case.
They may not be so entitled because on the matter of whom the land is to be given and alienated, the State authority’s prerogative is unfettered and not in any way bound by earlier representations by District officers and their politician friends to Low Kim Chai and 15 other landowners in Ulu Yam and 18 landowners in Kapar.
I hope what I said would throw some light to the complexity of controversy on these matters.
Sorry for typo error – “This is the crux of our section 340” (not 34) as posted.
as usual… the rich always get away easily!
kat malaysia, no money no talk! no money, no power!
no money, no lawyer…
thanks Jeffrey for such a good write-up.
I understand that some people place a caveat on their land to prevent such stealing – does that help to protect one’s title?
Just imagine this, you are the rightful owner of the your property and yet you have to make a private caveat on your own title just to be on the safe side ever since the Adorna Properties Sdn Bhd v Boonsom Bunyanit case came about.
Who stands to benefit from this? Lnd Off not earning enough? Just some chop here, chop there can make tonnes of money. Next Please…
Where is the justice in Bolehland? Apa-apa pun Boleh lah!
Just like we have the thousands of Policemen around but we still need to fork out money to pay for Private Protection in our own Tamans.
Where is the logic anymore?
I don’t feel like paying income tax for the coming month!
Tnx Jeffrey for the clarification. From your explaination it seems as if the court made a gross misinterpretation. Is there anywhere online where I may be able to read the relevant statutory sections in your post?
Angus
You cannot caveat your own land – but your wife or mistress can.
Jeffery QC
I wished I have a copy of the National Land Code to look at. Do you mind typing the entire Sections of the Code you mention? LOL.
Jeffrey QC: “When it is said that their lands were ‘transferred’ … one is not quite sure if by the word ‘transfer’ they meant it in layman terms…”
The term is ‘duly transferred’ – Borang (whatever) signed and attested to by a lawyer, and free from encumbrances – not a Commissioner for Oaths or your wife or mistress. Otherwise it is not a transfer. The issue document of title is evidence of ownership not ownership itself – a legal fallacy, if you will, and one which gives us a false sense of security. You should be looking at the Register itself which is why you are advised to do a title search to confirm the registered proprietor of the land. The Register is notice to the whole world. What is not on it is not there. Period.
Yes, it could be transferred for ‘love and affection’. Samy Value has transferred so many of his landed properties for ‘love and affection’ like he has an inexhaustible supply of it.
They should amend the NLC to allow a maximum of four times if the transfer is for ‘love and affection’. Why four?? It is legal for some of us to have four wives
“LOL How on earth did you find out that your lecturer has got dirty hands? Oh man, gives new meaning to ‘handouts’” slashed
Why do you think they always kiss the right hand??
He’s got a beautiful wife and they are married not that long
“When Datuk Seri Abdullah Ahmad Badawi became Prime Minister, he issued a â€Âwake up call†to all land offices telling them to buck up…”
He should wake himself up first!! How could somebody caught sleeping on the job wake up anybody???
It seems we should be fixing the problems of a tainted judiciary first.
Just read how the US Congress is going after the AG’s office for the sudden sacking of some officers without due cause.
Even closer home in Pakistan, thousands rioted because one Perverse president removed the Chief Justice.
In Malaysia not only the Lord President but almost the entire bench was removed and we all went on our usual routine. Except for the opposition, all the other MPs just kept silence.
Background facts of Adorna Properties Sdn Bhd v Boonsom Bunyanit as given by Roger Tan (Senior lawyer and ex partner of large reputable law firm and one time advisor to Hong Leong Group and chairman of the Conveyancing Practice Committee of the Malaysian Bar Council) are as follows :-
[Quote] “Boonsom Boonyanit, who resided in Thailand but visited Penang from time to time.
She was the registered proprietor of the land held under Lots 3606 and 3607, Mukim 18, in the Town of Tanjung Bungah, Pulau Pinang (“the said land”).
On June 11, 1989, Boonyanit’s son chanced upon an advertisement in a Thai newspaper calling upon any heir of Boonyanit to communicate with a firm of Penang solicitors. Boonyanit’s son then became suspicious and got in touch with his mother’s solicitors in Penang to conduct investigations. The investigations revealed that:
• An impostor claiming to be “Sun Yok Eng @ Boonsom Boonyanit” had affirmed a statutory declaration on June 18, 1988 that she had lost the original title to the said land. The impostor then managed to obtain a certified copy of the title from the land office.
• On April 6, 1989, the impostor, one Mrs Boonsoom Boonyanit, affirmed a second statutory declaration declaring that the names Mrs Boonsoom Boonyanit and Sun Yok Eng @ Boonsom Boonyanit in the title to the said land are one and the same person, that is Mrs Boonsoom Boonyanit (impostor) with a different Thai passport number.
• With this declaration, the impostor managed to perfect the registration of the memorandum of transfer in favour of Adorna Properties Sdn Bhd (“Adorna”). [From Jeffrey – you will note that this is direct stage 2 situation]. Boonyanit then sued for the return of the said land.â€Â
One can read link here – http://www.mca.org.my/story.asp?file=/articles/commentary/2007/3/62589.html&sec=Commentary
To Slashed/Undergrad2, section 340 of National land Code as taken straight from recitation of Eusoffe Chin’s judgment in Adorna Properties Sdn Bhd v Boonsom Bunyanit reads thus:
340. Registration to confer indefeasible title or interest, except in certain circumstances.
(1) The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible.
(2) The title or interest of any such person or body shall not be indefeasible –
(a) in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or
(b) where registration was obtained by forgery, or by means of an insufficient or void instrument; or
(c) where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law.
(3) Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in sub-section (2)-
(a) it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred; and
(b) any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested:Provided that nothing in this sub-section shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such a purchaser.
(4) Nothing in this section shall prejudice or prevent –
(a) the exercise in respect of any land or interest of any power or forfeiture or sale conferred by this Act or any written law for the time being in force, or any power of avoidance conferred by any such law; or
(b) the determination of any title or interest by operation of law.
Section 340(1) speaks of indefeasibility especially relating to stage 1 of my earlier post.
The defeasibility of the first innocent purchaser’s ownership registration procured by a transfer due to forgery, fraud or misrepresentation in stage 2 of my earlier post is covered, you will see, by section 340(3)(b) from the words “any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vestedâ€Â, the expression, “any person or person in whom it is for the time being vested referring to the original registered owner in stage 1.
The reversion (as in stage 3 of my earlier posting) to “deferred indefeasibility†(mentioned by Rodger Tan) of “subsequent second innocent purchaser†acquiring ownership registration from a transfer from “the first innocent purchaser†(without forgery, fraud and misrepresentation) is covered by latter part of section 340 (3)(b) by the words “Provided that nothing in this sub-section shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such a purchaser†(for convenience, referred to here as “Deferred Indefeasibility Provisoâ€Â) .
The key words are “any person or body claiming through or under such a purchaserâ€Â, with the words “any person or body claiming through or under†referring to subsequent second innocent purchaser described in stage 3 of my post and the words “such a purchaser†to first innocent purchaser at stage 2 of my earlier post.
Yes, Adorna Properties Sdn Bhd as first innocent purchaser has also acquired the land from forger in “good faith and for valuable consideration†but it is not entitled to protection of Deferred Indefeasibility Proviso at end of 340(3) (b) because of the words in earlier portion – “any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested†– and Adorna Properties Sdn Bhd certainly doesn’t qualify for the latter portion as a “person or body claiming through or under such a purchaser†because Adorna Properties Sdn Bhd, though an innocent purchaser itself, however claimed the transfer of ownership direct from the Fraudulent Rogue rather than from another innocent purchaser.
Anyway, that’s my interpretation of the section. The full judgment of Eusoffe Chin’s Federal court Judgment in 2001 – which those interested may read – is taken by me for reference from this link on the Net – http://www.ipsofactoj.com/appeal/2001/Part1/app2001(1)-005.htm
To HJ Angus – Anyone can protect one’s own title by caveating his own land, the effect of which is to block it from further dealings.
Whether or not it is proper – Undergrad2 says it is not, only a girl friend or mistress can caveat because they satisfy the prerequisite of having “registrable interest in land†as stipulated by the Land Code – is immaterial because the land office officials will register any caveat lodged by anyone as long as he pays the prescribed registration fee. Whether or not the caveat that gives protection from dealing for 6 years (renewable) will be allowed to continue depends on one factor – whether anyone else challenges and requests for its removal. Now who would do that if you are the rightful owner? Surely we don’t expect the forger to be audacious and has the means to mount that challenge.
Neither can an innocent 3rd party purchaser because by virtue of the rightful owner’s caveat, not removed, and whether or not it is properly lodged based on Land Code’s criteria, no forger or fraudulent character can effect a transfer to innocent purchaser because the existing caveat blocks dealings like transfer.
Cheers. :)
Link to the full judgment of Eusoffe Chin’s Federal court Judgment in 2001 is repeated here –
http://www.ipsofactoj.com/appeal/2001/Part1/app2001(1)-005.htm
What to do lah?
Some armchair people simply shoot themselves in the foot!
Or is it foot and mouth?
Thanks for the clarification. I’m no legal expert but I did hear once from a lawyer that putting a caveat on one’s own land is done in Malaysia.
The court is like any small group of persons. There is always a leader. He is the leader because of the heirarchy of his position. Or he may not, by official heirarchal position, be “first amongst equal” but he still leads because of the customary superiority of his intellect to analyse, dissect issues and write good, and often lengthy judgments strewn with plenty of powerful yet precise words and even dead latin expressions that though meaningless to us laymen however gives the presentation an impression of erudition and depth!
The rest of the group follows such a leader, whether first or latter category describe. And why not? They don’t have to do so much work. Just write – I concur, I concur and I concur, and earn the gaji and reap benefits!
That is how in a small group – whether a court or even the cabinet – there is a tendency within it to the development of “one mind” “one position” and one unanimous perspective to issue and problem.
That is also why the leader has to be a person sound in intellect, upright in integrity and erudite and knowledgeable in whatever he deals with because the the rest of the flock like sheep follow either in right direction or all end up in wrong track!
Now if one has a half past six leader who is a leader by authority of position and not superiority of knowledge or integrity – what do you think will happen?
The fault therefore does not necessarily, in all cases of injustices lie with existing law – whether in section 340 Land Code case of Adorna Properties Sdn Bhd v Boonsom Bunyanit or Article 121(1)A cases of Rayappan a/l Anthony’s and Subashini’s – but the way the law is interpreted – right or wrong, logical or illogical, just or unjust!
It underlines the important point not only that we should not have judges (or political leaders) who are corrupt but also judges or political leaders (independent of whether or not corrupt) who must be intellectually competent, knowledgeable and fair in character, answerable in conscience to God (if he were religious) or his own moral imperatives and conscience if he were not otherwise religious.
Wrong construction of last sentence – what I mean is that we MUST have “judges or political leaders (independent of whether or not corrupt) who must be intellectually competent, knowledgeable and fair in character, answerable in conscience to God (if he were religious) or his own moral imperatives and conscience if he were not otherwise religious”.
I wonder if crooks are in cahoots with people in the land office who make note of properties that have been dormant for many years as in quit rent being unpaid.
That may indicate the owner has died and may have not willed the property and hence the chance to try a fast one that seems to have succeeded.
Malaysian land law is not not based on english land law. Perhaps it was umpteen years ago. The present land law is strictly based on an Act called National Land Code.(NLC) Though equity has a place indeed its role is minimal compared to english land law. The present land law is based on Austrlaian Torrens system where the register is everything and not the title or grant (malaysian love this word landgrant) with one exception that is insurance i.e here no insurance for fraud occuring or caused by land office. Anyway titles are issued I.e issue document of title and this is where the Fraud starts ..when a real con artist with perhaps land staff and the S.340 NLC really loves the bona fide who gives valuable consideration as darling compared to bona fide owner. Owner cannot caveat his own land under NLC. Some one with an interest eg.Bank that gave a loan.
Jeffrey QC: And why not? They don’t have to do so much work. Just write – I concur, I concur and I concur, and earn the gaji and reap benefits!
There are at least three judges sitting on the Court of Appeal and depending on the importance of the issues involved they sometimes sit en banc.
I believe they do not consult with each other formally before writing their own judgments; but each after listening to legal arguments by counsel arrives at his own conclusion and sets out his judgment in writing citing the relevant case law, the authorities, giving his explanation of the interpretation of a particular statutory provision should that be relevant to the case. They do not give their own interpretation of whatever statute based on their emotions or personal feeling as to the legal issues – but based on pure reason, not even a mixture of emotion and reason. Emotion has no role in the interpretation of the law and its implementation. The judge who concurs with the first must still write out his reasons and tells us why he concurs, the legal reasoning leading to his decision complete with case law etc. Then occasionally there may be a judge who dissents and he especially must write his reasons for his dissenting judgment – and the reasons are sometimes more compelling.
It is not easy to “legally†dissent and whenever there is a dissenting judgment it stirs interest among law students who are curious to know the reasons why one judge is dissenting when the law they are applying is the same?
The late Lord Denning whose signed photograph still hangs on my wall was known for his dissenting judgments. Law students who make the mistake of not habitually reading the dissenting judgment of any case learn more slowly and perform less well in exams.
But it is never like you said “I concur, I concur and I concur†or “We concur and we concurâ€Â.
The law of real property is mostly statutory law though common law does play a limited role- and whenever it does it creates more problems than it solves. Decisions tend to be reversed and the inadequacies finally resolved by way of introduction or an amendment to statutory law.
Even the introduction of statutes does not resolve matters as the draftsman responsible for drafting the relevant legislation in many cases is unable to foresee all situations – which is why we see a constant flow of amendments of various statutes by Parliament anywhere for only Parliament has the legislative authority to do so. There is nothing wrong with having to amend.
A statute is as good as the courts which interpret it. When an interpretation placed by a judge on a particular statutory provision like S. 340 National Land Code, appears to defeat or go against the intent of Parliament, or gives rise to differing interpretations by different judges then Parliament will have to amend it to give effect to its original intent.
Sometimes you read of judges refusing to interpret a particular statutory provision one way and not another in order to give justice to the case. They are right because it is not their role to do so. The layman does not understand this. Politicians like Mahathir, used not to having anyone disagree with him, sees this as an attempt to usurp (read: his role) the role of Parliament when according to him “judges are not even elected representatives of the people like he is.â€Â
On the case of Adorna Properties Sdn Bhd v Boonsom Bunyanit, if it had been a court presided not by Tun Eusoffe Chin but the other Eusofee – Justice (Tan Sri) Eusoffe Abdoolcader – the decision on section 340 of the National Land Code would have been different.
Justice Eusoffe Abdoolcader was a great judge, with a razor sharp legal mind and terrified lawyers not up to mark. He wasn’t the kind of judge whose greatness like that of Lord Alfred Denning lies in interpreting the law in way to do justice at all costs even if it is at the costs of straining the plain and grammatical ordinary words of the statute. Eusoffe was at least the type of judge who could interpret the plain and grammatical ordinary words of the statute as they appear to speak and are intended by parliament or the draftsmen!
It was a great loss to the Rule of Law in this country when the Tun Dr Mahathir relieved him of his position as judge during the 1988 Judiciary crisis.
It is sad that when Eusoffe’s wife Haseenah died in 1993, after a long illness, Eusoffe who was profoundly depressed, took out a full-page advertisements of love poetry on every anniversary of her death, and after that shot himself at the head in Penang Jan. 11, 1996.
But the glory of a judges, when they were great, lives on – in their judgments. Long past his hour upon the Bench, a judge will be quoted and cited, again and again to remind all the function of the law, what it is and what it could do.
To quote an excerpt from Justice Eusoffe Abdoolcader’s judgment in Tan Sri Hj Othman Saat v Mohd bin Ismail (1982) – “Even if the law’s pace may be slower than society’s march, what with increased and increasing civic-consciousness and appreciation of rights and fundamental values in the citizenry, it must nonetheless strive to be relevant if it is to perform its function of peaceful ordering of the relations between and among persons in society, and between and among persons and government at various levels.â€Â
To: Jeffery QC
I agree with your assessment of this Judge. When the ‘rat pack’ was studying for their Bar in London in the 50s, Eusoffee used to help the Tunku in preparing for his exam which he finally passed at the grand old age of 46.
With one caveat:
If you were to read his judgments you’ll find yourself reading with some difficulty in order just to understand him.
Because we adhere to the principal of separation of powers, care must be taken to ensure that the judiciary does not usurp the powers of the legislature.
“If you were to read his judgments you’ll find yourself reading with some difficulty in order just to understand him”. Don’t talk of reading his judgments. Lawyers appearing before him and just hearing him speak verbatim, had to bring along an English dictionary to check against bombastic words and a legal dictionary to check latin maxims! With him one could never really feel 100% prepared. Suddenly he would ask some fundamental question upon which the case would stand or fall that no one had thought of. Then he was also editor of Malayan Law Journal and had the privilege of access to the latest cases decided in UK sometimes even before they were reported in law reports there much less known over here, and he would say to counsels, “girls and boys, have you done your homework, have you heard of these cases?” and he would fish out from his drawer copies of the latest decisions for their enlightenment. He worked, thought, ate and slept law : total dedication, passion and commitment. He led the bench of 3 other judges -Tan Sri Wan Sulaiman, Datuk George Edward Seah, Tan Sri Azmi – to oppose what the ex premier/Tun Hamid did to Tun Salleh Abas in 1988 and they were removed.
Isn’t this the thing they called “robbery”? Is this how it happens? That your properties are not safe in your own country, you got robbed! And this time, the can even moves the earth. I wonder nest time, what other things they will move? After your land is gone; you should too….